Today’s News & Commentary — March 14, 2017

While Uber attempts to discourage the unionization of drivers in Seattle, some drivers are challenging the municipal law giving drivers the right to organize.  According to the Seattle Times, “the drivers are seeking a temporary restraining order barring the city from enforcing the law — the first of its kind in the country — saying it goes against federal labor and privacy laws, as well as violates their rights to free speech and association.”  The lawsuit is being led by the National Right to Work Foundation and the Freedom Foundation.  The drivers primarily argue that the National Labor Relations Act pre-empts the municipal law.

Another innovative municipal law has gone into effect, in San Jose, CA.  The Mercury-News notes that ” San Jose businesses with 36 or more employees must now offer extra shifts to part-time workers before hiring new staff.”  Under the Opportunity to Work measure, “companies must offer — in writing — extra work hours to existing qualified part-time employees.  If those employees aren’t qualified or decline the extra hours, an employer can then hire additional workers to fill the shifts.  The idea, advocates say, is to give existing workers access to extra hours to boost their paychecks.”

Muslim workers in Europe suffered a legal setback in seeking to assert their right to wear the hijab in the workplace.  The Washington Post reports that “The European Court of Justice issued a non-binding ruling Tuesday that employers can prohibit the Muslim headscarf in the workplace, setting an important precedent for a continent in the midst of a fraught political climate.”  The ECJ concluded that rules against the wearing of the hijab in the workplace were in fact rules against the visible wearing of religious signs, and thus not direct discrimination.  Notably, “in the absence of official internal regulations prohibiting what employees can wear to work, the court suggested, Muslim women have a stronger case for wearing the hijab to the office.”

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More Data, More Problems? Why the Proposed EEO-1 Data Collection is a Net Gain

Last week, the comment period closed on the EEOC’s proposed revision of the Employer Information Report.  Also known as EEO-1, the Employer Information Report records the demographic information of employees.  The EEOC’s revision seeks to expand data collection to include compensation and hours worked.  Opponents of the revisions claim that the collection is not specific enough yet invasive of workers’ privacy, but for those concerned about improving ethnic and gender diversity, this expansion is a welcome move.

Background and proposed changes

Under Section 709(c) of Title VII, employers are required to collect and report data in order to determine whether discrimination has occurred in the workplace.  Since 1966, EEO-1 has been the designated form for the Joint Reporting Committee, composed of the EEOC and OFCCP.

The EEOC uses EEO-1 data as evidence in its civil rights actions, while the OFCCP uses it to determine which employers to target for compliance reviews.  EEO-1 data remains otherwise confidential under section 709(e) of Title VII, though aggregate data is provided to examine broad trends in diversity, and a number of firms have chosen to make their individual forms public.

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Fuzzy Math: Silicon Valley’s Diversity Statistics

Many articles have been written about a diversity crisis in Silicon Valley, perhaps due to tech firms’ initial resistance to releasing employee demographics.  Enter Tracey Chou, an early Pinterest engineer, who launched a (still running) Google spreadsheet of the number of female hires.  Around the same time, several of the largest tech companies released diversity statistics from their Department of Labor’s EEO-1 reports, with several publications displaying side-by-side comparisons.  But if a picture (or chart) is worth a thousand words, then it’s important to understand what it does and doesn’t say.  In this post, I’ll focus on three ways employers can shift diversity stats from simply being self-congratulatory, to meaningful for potential employees deciding between firms.

The Atlantic points out:

It has become a grand gesture in tech this summer for big companies to release demographic data about their workforces…that formula has now become the de facto way to share (and apologize for) diversity data in Silicon Valley.  It goes something like this:

  1. Write a blog post about the importance of transparency, acknowledging how your company has a long way to go and outlining a few diversity-related initiative
  2. Include a sleek graph showing how few women and minorities you employ
  3. When asked to talk about the issue, decline interview requests and redirect people back to the original blog post

Diversity disclosure can help employees to pick the firm that is best for them, as disclosure is generally important.  But there’s a reason I say can, not will: data without context doesn’t mean very much.  Data’s potential power is in confirming individual “anecdata” as a trend.

Specifically, employees would benefit if employers provided baseline numbers, standardized and disaggregated their data.

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Gig News — February 12, 2016

There might be problems with the recent class-action settlement Lyft reached with drivers.  According to Reuters, “U.S. District Judge Vince Chhabria in San Francisco issued several written questions about the deal, including some on the key issue of whether drivers for Lyft should be independent workers or employees.”  Judge Chhabria must approve the settlement.  Attorneys for both the drivers and Lyft were asked to provide answers in writing, and a hearing is scheduled for March.

Uber has entered the bicycle-messaging business, and its use of independent contractors has led to further scrutiny of the company’s labor practices.  Crain’s New York Business reports that while Uber classifies its messengers as independent contractors, “traditional courier companies, by contrast, are required to hire messengers as employees and to pay workers’ comp, unemployment insurance and other fees.”  An operator of a courier business featured in the article stresses that the New York State Department of Labor has forbidden the classification of foot and bike messengers as independent contractors.  The operator is working as an Uber messenger in order to document how it treats him as an employee and then bring a complaint.

The attempt to coordinate seven worker classification lawsuits against Uber in a multidistrict litigation has failed.  The U.S. Judicial Panel on Multidistrict Litigation concluded that “centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of the litigation.”  On a related note, Ars Technica summarized some of the several cases being brought using state labor laws by New York-based attorney Paul Napoli.

Do Uber drivers generate profit for the company even when they aren’t transporting passengers?  Motherboard highlights how the data generated by Uber drivers is “immensely valuable” to the company.  Furthermore, “amid a growing recognition that data is an essential component of running a technology business, some drivers and labor advocates are considering drivers’ dead miles as unseen labor, and are wondering if Uber’s data collection constitutes a new kind of wage theft.”

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