Today’s News & Commentary —April 24, 2019


Published April 24th, 2019 - 04.24.196


A federal judge in Washington ruled yesterday that Amazon drivers aren’t bound by an individual arbitration agreement, allowing a massive class action over employee misclassification to proceed. Amazon drivers allege that they have been improperly designated independent contractors, thereby denying them important protections like minimum wage, sick leave, and overtime — but tens of thousands of drivers were required to sign forced arbitration agreements. Like many arbitration clauses, Amazon’s contracts included a class action waiver require workers to sign away their right to participate in a class-action lawsuit. When drivers sued as a class, Amazon tried to throw them out of court by invoking the arbitration agreement. But the District Court ruled that the drivers’ were protected by Section 1 of the Federal Arbitration Act, which excludes from its coverage “contracts of employment of seamon, railroad employees, of any other class of workers engaged in foreign or interstate commerce.” For a long time, this phrase was understood to exempt all employment contracts from the Forced Arbitration Agreement — but in a 2001 case, the Supreme Court held that the exemption only applied to a narrow class of transportation workers. Earlier this year, in New Prime v. Oliveira, the Court reaffirmed that (as the statute explicitly requires) transportation workers are excluded from the FAA. Applying that rule, the District court held that Amazon delivery drivers are “workers engaged in interstate commerce,” so they couldn’t be kept out of Court by forced arbitration. You can check out some of OnLabor’s previous coverage of New Prime here, here, and here.

Unfortunately, forced arbitration still bars tens of millions of other American workers from going to court, including women at Kay Jewelry, which is the subject of a massive sex discrimination lawsuit. Male retailers at Kay earned an average $13.40 per hour — but women earned just $10.39 on hour for the same work at the same skill level. On top of the pay disparity, the affidavits from women who worked at Kay document pervasive sexual harassment, including rape. Managers frequently harassed women or required them to flirt with men to get them to apply for store credit cards. Kay required all workers to sign arbitration agreements, so pay disparity cases were resolved in secret. Years after the claim was filed, an arbitrator granted class certification, allowing nearly 70,000 women to join their arbitration claims together and permitting some of the women to speak to each other about the abuse they experienced. Sterling has since appealed, throwing tens of thousands of women out of the class.

Stop & Shop employees returned to work Monday after the reaching a tentative agreement with the supermarket giant. As Martin explained earlier this week, Stop & Shop workers went on strike for 11 days over health care and pay proposals. Union officials argued that proposed cuts to health care benefits outweighed meager proposed raises — meaning that workers’ paychecks would shrink even as Stop & Shop was growing. But the agreement isn’t final yet: the contract still has to be ratified by 31,000 union members across five locals. The New York Times reports that voting begins this week. While the terms of the contract remain confidential until it’s ratified, union officials appear optimistic and announced that the agreement preserves existing healthcare benefits, raises wages, and maintains other important benefits.

The Connecticut Commission on Human Rights just issued new guidance on employers’ responsibilities to combat discrimination on the basis of pregnancy, childbirth, and related conditions, including lactation. The new guidance explicitly specifies that discrimination against new parents based on lactation needs are a form of prohibited pregnancy discrimination. The guidance also includes a non-exhaustive list of reasonable accommodations for lactation needs, including making a reasonable effort to provide safe, appropriate lactation facilities; access to a refrigerator for storing breast milk; and a reasonable amount of break time to express breast milk. Only 40% of working women report having access to both break time and a private space for expressing breast milk.

Google employees organized a massive walkout last year to protest forced arbitration, racial discrimination, and gender discrimination at the company. The company publicly praised them, but privately moved to restrict employees’ rights to organize. Now, he New York Times reports that two employees who organized the walkout are being retaliated against— one was demoted and one was informed that her “role would be changed dramatically.” One organizer, an A.I. research, was also told to “abandon her external work at New York University.”

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