Today’s News & Commentary — September, 19, 2018

Published September 19th, 2018 -  - 09.19.183


WeWork has reached a settlement agreement with the Attorneys General of New York and Illinois to remove or alter noncompete clauses included in the company’s employment contracts.  Prior to the settlement, most of WeWork’s staff—including custodians, baristas, and receptionists—were contractually barred from working at competitors for a year after leaving the company.  New York is one among many states moving to restrict employers’ use of noncompete clauses. Earlier this year, seven fast food chains settled with the Attorney General of Washington state to remove provisions that prevented their employees from seeking work with other restaurants within the same chain, while Massachusetts recently passed a bill requiring employers to pay a portion of an employee’s salary if that employee is barred from working for a competitor.  OnLabor contributors have written on the impact of noncompetes several times in the past.

A divided Ninth Circuit court ruled en banc yesterday that restaurants are required to pay servers and bartenders the minimum wage while performing untipped work that is not within their primary duties, like cleaning and preparing food.  The majority opinion, written by Judge Richard Paez, noted that tips are “a gift to the server,” rather than a “cost-saving benefit to the employer.”  Currently, the Fair Labor Standards Act allows employers to pay waitstaff as little as $2.13 per hour as long as they receive the minimum wage via tips.  However, Obama-era Department of Labor guidance limits employers’ ability to claim tip credits only “for time spent in duties related to the tipped occupation.”  Fourteen servers and bartenders will now be able to proceed with lawsuits against a number of restaurants, including IHOP and P.F. Chang’s, for alleged underpayment.

As expected, McDonald’s workers across the country staged walkouts to protest sexual harassment on the job yesterday.  The one-day strike, which took place in ten cities including Chicago, Los Angeles, and San Francisco, was the first nationwide strike to specifically call for an end to workplace sexual harassment.  The striking workers recounted stories of rampant sexual harassment and abuse, and accused McDonald’s of failing to address the problem despite multiple complaints with the Equal Employment Opportunity Commission.  They are demanding that the company require managers and franchise owners to undergo anti-harassment training and form a national committee comprised of workers, management, and women’s groups to address the issue.  A 2016 study by Hart Research Associates found that 40 percent of women who work in the fast food industry have experienced sexual harassment on the job.

The American Civil Liberties Union, the Communications Workers of America, and three job seekers have filed a complaint with the Equal Employment Opportunity Commission against Facebook and ten companies for discriminating against women and gender non-binary people by publishing job ads targeted toward men.  The complainants allege that Facebook violated Title VII of the Civil Rights Act of 1968, which prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, and the Supreme Court’s decision in Pittsburgh Press Co., which upheld a municipal ordinance preventing employers from publishing classified ads targeting one sex, by routinely denying individuals the opportunity to receive job advertisements for traditionally male-dominated positions, including police and mechanics.  Facebook announced that it would defend its practices and stated that there is “no place for discrimination” at the company.

John W. Wilhelm, the former president of Unite Here, published a letter in the New York Times detailing the fight for wage parity at Harvard University and the role that United Here Local 26 and Service Employees Local 32BJ played in that struggle.  As previously reported, contract service workers at Harvard earn more than their peers thanks to the university’s Wage Benefits and Parity Policy.

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