IBM Suit Against Former Diversity Chief Illustrates Growing Value of D&I

IBM Suit Against Former Diversity Chief Illustrates Growing Value of D&I

Microsoft announced on Sunday that it had hired Lindsay-Rae McIntyre as its next Chief Diversity Officer, reporting directly to Chief People Officer Kathleen Hogan and leading “a multitude of existing cross-company initiatives to further Microsoft’s progress in building a diverse and inclusive culture.” McIntyre comes to Microsoft after two decades at IBM, where her most recent titles included Chief Diversity Officer and Vice President of HR.

Not so fast, says IBM, which filed suit against McIntyre on Monday, claiming that her new position at Microsoft violates a year-long non-compete agreement and puts IBM’s trade secrets at risk, GeekWire’s Todd Bishop reported:

The suit, filed federal court in New York today, describes McIntyre as one of the company’s “most senior executives with knowledge of IBM’s most closely guarded and competitively sensitive strategic plans and recruitment initiatives,” including “confidential strategies to recruit, retain and promote diverse talent.”

In her new role at Microsoft, she would compete for the many of the same types of hires she previously recruited for IBM, the suit says. … IBM claims in its suit that it will be “inevitable” for McIntyre to use IBM’s trade secrets against the company.

In its complaint, IBM argues that Microsoft itself recognizes the competitive advantage of keeping diversity data and strategies private, pointing to an ongoing class-action lawsuit alleging that Microsoft discriminates against women, in which the tech giant has resisted efforts by plaintiffs to force it to hand over detailed diversity data: “As Microsoft has admitted, disclosure of the very type of confidential information that McIntyre possesses—non-public diversity data, strategies and initiatives—can cause real and immediate competitive harm.”

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GrubHub Prevails in Contractor Classification Suit

GrubHub Prevails in Contractor Classification Suit

US Magistrate Judge Jacqueline Scott Corley issued her ruling on Thursday in a case brought against GrubHub late last year by former food delivery driver Raef Lawson, who claimed that the company’s gig economy business model had violated his rights as an employee under California law. Corley was not persuaded, however, by Lawson’s argument that GrubHub exerted enough control over when and how he worked for him to qualify as an employee and instead found that the company was correct to treat him as an independent contractor, TechCrunch’s Megan Rose Dickey reports:

A key element of the case centered around the Borello test, which looks at circumstances like whether the work performed is part of the company’s regular business, the skill required, payment method and whether the work is done under supervision of a manager. The purpose of the test is to determine whether a worker is a 1099 contractor or a W-2 employee.

On the basis of the Borello standard, Corley concluded that “GrubHub’s lack of all necessary control over Mr. Lawson’s work, including how he performed deliveries and even whether or for how long, along with other factors persuade the Court that the contractor classification was appropriate for Mr. Lawson during his brief tenure with GrubHub.” She also expressed concerns over Lawson’s honesty, noting that he misrepresented his education in his résumé and “intentionally manipulated the app to get paid for not working,” undermining the credibility of his testimony.

Being the first to weigh in on whether gig economy workers enjoy rights as employees, Corley’s ruling could set a precedent with implications for other gig economy companies. However, as Dickey notes, the judge hesitated to cast her ruling as dispositive with regard to the gig economy as a whole:

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Airlines Sue Washington State Over Sick Leave Law

Airlines Sue Washington State Over Sick Leave Law

Airlines For America, a coalition of airlines including industry heavyweights Alaska, JetBlue, United and Southwest, filed a lawsuit in the US District Court in Tacoma, Washington on Tuesday, arguing that the mobile nature of the aviation workforce makes it impossible for them to comply with the paid sick leave laws recently enacted in Washington state and other states and cities, the Associated Press reports:

The complaint put it this way: “A flight crew departing from SeaTac International Airport, landing in Portland International Airport, and continuing to San Diego International Airport is subject to three different paid sick leave laws in a single duty period, each with its own accrual, compensation, reporting, and leave requirements.” The lawsuit seeks a ruling that federal regulation of air travel precludes Washington state’s sick leave law from applying to the airlines’ pilots or flight crews. …

The airlines say many of their employees already have generous sick leave and other benefits, and they’re covered by collective bargaining agreements. They also say that by restricting when employers can demand medical documentation for sick leave, Washington’s law will make it harder for them to crack down on fraud and abuse of sick leave policy. That, they insist, will lead to more employees calling in sick – and more flights being canceled or delayed due to a lack of adequate crew.

The airlines’ suit reflects the concern among multi-state employers that the expanding patchwork of local and state employment laws and regulations will make it harder and more expensive for them to do business across state lines or expose them to an excessive risk of litigation. This has prompted some conservative state governments to pass preemption laws barring localities from enacting their own labor regulations, while at the federal level, some lawmakers have sought to enact a national paid time off policy that would exempt employers from complying with local regulations if they met a less robust federal standard.

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Tesco Faces Discrimination Suit Over Pay Gap Between Store, Warehouse Employees

Tesco Faces Discrimination Suit Over Pay Gap Between Store, Warehouse Employees

The British supermarket chain Tesco is facing a massive pay discrimination claim from its mostly female shop floor workers, asserting that they should receive wages equal to those of the mostly male employees who perform similar work at the company’s distribution centers. The law firm Leigh Day is taking legal action on behalf of around 100 shop assistants, but the class action could affect as many as 200,000 workers, the Guardian reports:

Tesco warehouse staff earn from about £8.50 an hour up to more than £11 an hour while store staff earn about £8 an hour in basic pay, according to the claim. The disparity could mean a full-time distribution worker earning over £5,000 a year more than store-based staff.

The case follows similar actions against Asda and Sainsbury’s which are working their way through the employment tribunal process. Nearly 20,000 people are involved in the Asda case, where the latest ruling backed the shopworkers’ right to compare their jobs to employees – mainly men – working in distribution centres. Asda is due to appeal against that ruling at the court of appeal in October. About 1,000 workers are involved in the Sainsbury’s action.

An employment tribunal ruling against Tesco could cost the company as much as £4 billion, or £20,000 in back pay per employee. Leigh Day intends to argue that the pay discrepancy reflects implicit discrimination against store workers and other jobs traditionally held by women. The case will hinge on the question of whether the warehouse employees’ work is in fact more valuable to the company than that of the shop workers, one economist tells CNN Money:

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US House Votes to Prohibit Sexual Relationships Between Legislators and Staffers

US House Votes to Prohibit Sexual Relationships Between Legislators and Staffers

In response to a wave of sexual harassment and misconduct allegations in recent months that has led eight members of the US Congress to either resign or decline to run for re-election, the House of Representatives voted on Tuesday to bar its members from engaging in sexual relationships with their employees and from using taxpayer funds to settle harassment suits, the Washington Post reports:

H.R. 4924 alters the Congressional Accountability Act of 1995 to require members to reimburse the Treasury Department when they are involved in settlements; automatically refers cases that have settled to the House Ethics Committee; extends workplace protections to unpaid staffers, including interns; gives staffers the ability to file a lawsuit at the same time as they file a complaint; and improves record-keeping.

A separate resolution, House Resolution 724, requires each member of the House to adopt policies prohibiting harassment and discrimination; establishes the nonpartisan Office of Employee Advocacy to provide assistance to staffers with complaints; mandates that each member’s office certify it is not using its budget for workplace settlements; and prohibits sexual relationships between members and “any employee of the House that works under [their] supervision.”

The resolution passed on Tuesday should put a stop to the widely criticized practice of paying settlements to victims of sexual harassment in the House with taxpayer funds, the Associated Press explains:

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European Rights Court Strikes Another Blow Against Employee Surveillance

European Rights Court Strikes Another Blow Against Employee Surveillance

The European Court of Human Rights has found that covertly videotaping an employee at their workplace constitutes an intrusion into their private life in violation of the European Convention on Human Rights. In a decision handed down on January 9, the court ruled in favor of five former employees of a supermarket chain in Spain, who were fired after their employer caught them engaging in or facilitating theft, based on evidence from surveillance cameras that had been installed without the employees’ knowledge, Dentons attorney Claire Maclean explains at Lexology:

The employees challenged their dismissals before the Spanish courts, arguing that the use of covert video surveillance in the workplace without prior notice was unlawful. These challenges were unsuccessful so they raised proceedings before the ECHR alleging that the covert video surveillance violated their right to privacy protected by Article 8 of the European Convention on Human Rights.

The court held that the installation of the covert cameras had not complied with the Spanish legislation on data protection. The Spanish Data Protection Agency had issued an instruction clarifying that anyone using video surveillance had to place a distinctive sign indicating the areas that were under surveillance.

The court ordered Spain to pay each of the applicants 4,000 euros in respect of non-pecuniary damage, plus court costs, but rejected the applicants’ claim that they were entitled to pecuniary damages for the wages they would have earned had the Spanish courts declared their dismissals unfair and reinstated their employment at the supermarket.

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Judge Presses EEOC to Rewrite Wellness Rules by Next Year

Judge Presses EEOC to Rewrite Wellness Rules by Next Year

When a district court in Washington, DC, ordered the US Equal Employment Opportunity Commission to rewrite its rules governing incentives for employee wellness programs last August, the court declined to vacate the commission’s current rules in order not to create disruptions in businesses that had already implemented programs based on them. The AARP, a lobbying group for older Americans and the plaintiff in the case against the EEOC, petitioned the court to amend its judgment and vacate the rules.

In its latest ruling, issued in late December, the court agreed to do so, but not until January 2019. Labor and employment attorney Jonathan E. O’Connell outlines the latest chapter of this legal drama at SHRM:

Also playing into the court’s decision to modify its prior judgement was the timeline offered by the EEOC for issuing its revised rule. The EEOC indicated that the new rule would not likely be ready until 2021. The court stated that such a lengthy delay was inconsistent with its expectation that the revised versions of the rule would be issued in a timely manner and thus also supported reconsideration of the court’s earlier decision. The court stated that “an agency process that will not generate applicable rules until 2021 is unacceptable” and strongly encouraged the EEOC to take steps to implement revised regulations faster.

Arguing on behalf of the EEOC, the Justice Department pushed back on that decision in a court filing this week, arguing that the court did not have jurisdiction to impose a deadline on the agency or force it to write new rules at all, Erin Mulvaney reports at the National Law Journal:

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