Today’s News & Commentary — October 24, 2019


Published October 24th, 2019 - 10.24.195


The National Labor Relations Board plans to reconsider its successor bar doctrine in a case called American Water.  Under the doctrine, when a successor employer follows its legal obligation to recognize the previously chosen collective bargaining representative of its employees, the representative must have a reasonable period of time to bargain with the new employer before employees can attempt to decertify the union.  In the 2011 UGL-UNICCO Service Co. decision, the Board under President Obama readopted the doctrine after it was discarded in the 2002 MV Transportation decision by the Board under President Bush.

In The Washington Post, Drew Harwell writes about the growing use of artificial intelligence in making employee hiring decisions.  The technology firm HireVue has created a system that gives prospective employees an “employability score” based on their voice, words, and facial movements in cellphone or computer interviews.  The technology is already being used by over 100 employers such as Goldman Sachs and Hilton.  HireVue claims that its technology helps curb discrimination by eliminating subjective human judgments about how people look.  But some researchers and anti-discrimination advocates claim that the system can exacerbate discrimination by “punishing nonnative speakers, visibly nervous interviewees, or anyone else who doesn’t fit the model for look and speech.”

At Bloomberg Law, Robert Iafolla discusses the threat that gig companies continue to face from the Supreme Court’s January decision in New Prime Inc. v. Oliveira.  If drivers and delivery workers for gig economy companies like Uber and GrubHub can sue their employers in court, they can challenge misclassification and other employment law violations on a class-wide rather than individual basis.  In New Prime, the Court unanimously held that the Federal Arbitration Act’s Section 1 exemption for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” encompassed the work agreements of independent contractors in the transportation industry.  The Court also determined that the question of whether the exception applied should go before a court, even if workers agreed to arbitrate the arbitrability of their claims.  Gig economy companies are arguing that drivers and delivery workers are not “engaged in foreign or interstate commerce,” but plaintiff’s lawyers are pointing to the fact that many drivers cross state lines in providing service and also ferry passengers to transportation hubs like airports and train stations.

Central banks across the globe face a gender diversity problem.  Fewer than one-third of the economists at the Federal Reserve are women.  The Bank of England the European Central Bank have similarly poor ratios.  At a gender equality conference organized by the banks earlier this week, they discussed strategies for increasing diversity in hiring such as recruiting from a larger number of universities and considering experience rather than just grades.

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