Uber announced on Tuesday that it would no longer require employees, drivers, or customers who experience sexual harassment on the job or while using the ride-sharing service to adjudicate their claims in arbitration proceedings. Coming in response to pressure from former employees and customers, the change will allow alleged victims of sexual harassment in the US to pursue claims against the company in court. Uber will also no longer bind accusers to confidentiality requirements as a condition of receiving a settlement on the company, though it will continue to keep financial details of such settlements confidential.
In a blog post, Uber’s Chief Legal Officer Tony West said the company would also publish a public safety transparency report including data on sexual assaults and other incidents that take place on its platform.
Hours after Uber’s announcement, Lyft also announced that it was waiving its standard arbitration agreement for sexual assault claims and would no longer impose confidentiality requirements on alleged victims of sex crimes, Recode’s Johana Bhuiyan reported later on Tuesday. Lyft also intends to release a safety report on sexual assault complaints it receives on its platform; Lyft COO Jon McNeil wrote on Twitter later Tuesday afternoon that his company would be happy to work together with Uber on this reporting project.
West said Uber had made its decision in the interest of transparency, but also acknowledged the risk the company was taking in being more open about these allegations (albeit a risk mitigated to some extent by the participation of its chief competitor):
The UK’s Employment Appeal Tribunal ruled last week in favor of a bicycle courier working for Addison Lee who sued claiming that the taxi and courier company had incorrectly classified him as a self-employed contractor rather than an employee, Jo Faragher reported at Personnel Today:
The Independent Workers’ Union of Great Britain (IWGB) represented Christopher Gascoigne, who first took the taxi and courier firm to an employment tribunal last August. … The tribunal heard that Gascoigne had to re-sign his contract every three months, terms of which included: “You agree that you are an independent contractor and that nothing in this agreement shall render you an employee, worker, agent or partner of Addison Lee and you shall not hold yourself out as such.”
In dismissing Addison Lee’s appeal against Gascoigne’s claim, the EAT referred to the fact that Gascoigne had claimed he could get into a “tricky situation” for not accepting a job, and that his location was often tightly controlled so he was well placed for future deliveries during the day.
Gascoigne’s successful suit is the latest in a series of decisions to come out of the tribunal system against gig economy companies with businesses built on the contractor model, beginning with a ruling for Uber drivers in 2016 and for another bike courier for CitySprint in January 2017. Uber lost its appeal of the 2016 ruling last November, though the company said it would appeal again to higher courts, including the Court of Appeals and the Supreme Court. The Supreme Court is currently hearing an appeal by Pimlico Plumbers, which had lost a case brought against them in which one of their former plumbers was deemed a worker (a classification in UK law with more rights than “contractors” but fewer than “employees”), not self-employed.
Last week, the UK Employment Appeal Tribunal overturned a lower tribunal’s ruling in favor of a father who sued for discrimination after being denied enhanced pay while taking shared parental leave, Jo Faragher reported at Personnel Today, but returned the case to the lower court to reconsider whether the father in question was a victim of indirect discrimination:
In the case of Hextall v Chief Constable of Leicestershire Police, a male worker claimed that his employer had discriminated against him because of his sex as he was only entitled to receive statutory shared parental pay, when the employer paid enhanced maternity pay. …
Mrs Judge Slade ruled that the initial tribunal had erred in applying a direct discrimination comparator (as in a woman on maternity leave) to an indirect discrimination claim, so the latter will now be heard by an employment tribunal at a future date.
This case was similar to that of Ali v. Capita Customer Management, in which the Appeal Tribunal ruled last month that the plaintiff Mr. Ali had not been discriminated against when his employer, which offered enhanced maternity pay to new mothers, told him he was entitled to the statutory rate prescribed in the UK Shared Parental Leave law for his paternity leave beyond the first two weeks.
In that case, the higher tribunal said it was an error to treat Ali’s circumstances as directly comparable to those of a woman who had recently given birth, ruling that maternity leave and enhanced maternity pay have an additional purpose of supporting the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth,” which goes beyond the purpose of parental leave generally.
Downtown Philadelphia (OAnderson/Shutterstock)
A federal judge has partly struck down the ban on salary history inquiries passed by the city of Philadelphia last year, ruling that a prohibition against asking candidates about their past earnings infringes employers’ First Amendment right to free speech. However, US District Judge Mitchell S. Goldberg concluded in his ruling, issued Monday, that the city did have a right to bar employers from basing salary offers on that information as a means of combating wage discrimination:
I conclude that the City’s Inquiry Provision violates the First Amendment. Although the Ordinance represents a significant positive attempt to address the wage gap, the First Amendment compels me to enjoin implementation of the Inquiry Provision. The Reliance Provision, however, does not offend the First Amendment and remains intact.
Accordingly, Joseph DiStefano reported at the Philadelphia Inquirer, both the Chamber of Commerce for Greater Philadelphia, which pursued the lawsuit, and the city found something to celebrate in Monday’s ruling. DiStefano gets a local attorney’s take on what it means for employers:
Under Goldberg’s ruling, “employers have to be careful. You can ask for their prior salary. But, once you know the salary, it’s very difficult to ‘unring that bell,’” and claim there was no discrimination, if employees later find they were underpaid relative to others in the same job, [Tracey Diamond, an employment lawyer at Pepper Hamilton LLP,] added.
In a ruling handed down on Monday, the California Supreme Court found in favor of drivers for the last-mile delivery service company Dynamex, who claimed to have been misclassified by the company as independent contractors when they were really its employees. Gizmodo’s Brian Menegus outlines the facts at issue in the lawsuit, first filed in 2005:
Starting in 2004, drivers were required to provide their own vehicles—and pay for all the incurred costs that came with that, like gas, maintenance, insurance, and tolls—while being “generally expected to wear Dynamex shirts and badges […] and/or the customer’s decals to their vehicles when making deliveries for the customer.” … They were converted from employees to this new, more precarious classification “after management concluded that such a conversion would generate economic savings for the company,” the ruling states, creating a deeply lopsided power dynamic.
The court’s decision will have far-reaching consequences, as it ruled not only on the merits of these drivers’ complaint, but also on the manner in which the distinction between employees and contractors should be drawn. The judges significantly reinterpreted their predecessors’ ruling in the 1989 case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations, which had historically been cited as establishing a standard for classifying workers as contractors based largely on the degree of control a company exercised over their work. The court instead favored the “ABC” standard used in other jurisdictions like Massachusetts and New Jersey, which treats workers as contractors only under the following conditions:
The UK’s Employment Appeal Tribunal has overturned a controversial ruling from a lower court that a new father whose employer had declined to enhance his statutory pay while using shared parental leave had engaged in sex discrimination, Ashleigh Wight reports at Personnel Today:
Last year, the employment tribunal ruled that it was direct sex discrimination to allow new father Mr Ali only two weeks’ leave on full pay, when female staff were allowed to take 14 weeks’ maternity leave on their full salary. …
The EAT found the employment tribunal had erroneously interpreted that Mr Ali’s circumstances were comparable to those of a woman who had recently given birth as both had leave to care for their child. The EAT said the purpose of maternity pay and leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”.
Mr. Ali, a former Telefónica employee, had transferred to a job at Capita but remained covered by his former employer’s policies, which offered 14 weeks of enhanced maternity pay to mothers on leave but only two weeks’ leave at full pay to new fathers. His wife had returned to work not long after giving birth, based on medical advice that doing so might help alleviate her postpartum depression, leaving Mr. Ali to care for the baby. When he was told that he was only entitled to the statutory rate prescribed in the UK Shared Parental Leave law for his paternity leave beyond the first two weeks, he sued, and a tribunal ruled in his favor last June.
The nonprofit organization Working Families, which advocates for parental leave and other work-life balance benefits for UK workers, cheered the appeals tribunal’s ruling, saying that a final ruling in the plaintiff’s favor would have resulted in employers abandoning enhanced parental pay for mothers rather than extending it to fathers as well, Wight adds:
Differences in past salaries are insufficient to justify disparities in pay between male and female employees in the same role, the Ninth US Circuit Court of Appeals ruled on Monday. In an en banc rehearing of a case decided by a three-judge panel nearly a year ago, the court’s 11 judges unanimously ruled in favor of Aileen Rizo, a California school employee who learned in 2012 that her male counterparts were making more than she was and filed a discrimination suit under the Equal Pay Act.
The panel last year, citing a 1982 ruling by the court that said employers could use salary history information as long as they applied it reasonably, had overturned a 2015 decision by US Magistrate Judge Michael Seng, which held that the Fresno, California, school district’s pay structure perpetuates gender-based wage disparities. Monday’s opinion, authored by the late judge Stephen Reinhardt before his death last month, reaffirmed Seng’s ruling, concluding that ” allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands”:
We conclude, unhesitatingly, that “any other factor other than sex” is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance. It is inconceivable that Congress, in an Act the primary purpose of which was to eliminate long-existing “endemic” sex-based wage disparities, would create an exception for basing new hires’ salaries on those very disparities—disparities that Congress declared are not only related to sex but caused by sex. To accept the County’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.
Reinhardt’s opinion will cheer critics of salary histories, who argue that using this information to set pay enables the persistence of unjustifiable gender-based pay gaps throughout an employee’s career.