Welcome back to Labor of Law. This week, we're highlighting questions about where labor law fits into the gig economy, a big business push for new benefits thanks to tax reform and what a salary history ban could mean. Send me your story ideas or just say hi: [email protected] or @erinmulvaney on Twitter.

➤➤ Want to receive my weekly labor & employment law update straight to your in-box? Click here to sign up.

|

How Does the Gig Economy Fit into Labor Law?

New technology. Old questions. That's the perspective of former National Labor Relations Board general counsel Richard Griffin Jr., who was among the panelists this week at the Bloomberg Next webinar “2018 Outlook on Labor and Employment: Hot Topics and the Future of Work.” Griffin, now counsel to Bredhoff & Kaiser in Washington, says there's nothing new in one of the central questions of the gig economy: Are workers employees or independent contractors? Some of the first major labor cases before the Supreme Court focused on that issue—such as whether newspaper delivery people were considered contractors or employees.

Sharon Block, a former NLRB member and now executive director of Harvard Law School's Labor and Worklife Program, had this to say: “I think there is a tendency to get distracted by the bright, shiny object of technology. To assume that because technology is involved doesn't mean that standards don't apply. The standards of the relationship isn't changed.”

Epstein, Becker & Green member Paul DeCamp says there's a role for Congress in the fight: “The big picture here is that with the current state of the law, it would be structurally better if Congress could resolve this rather than the political winds going back and forth.” The target keeps moving for gig companies and that's the central issue, DeCamp says.

Griffin says companies aren't entitled to a pass… “There is a societal expectation you will run your enterprise based on existing statute. You can't start something and not make a considered judgment.”

Pushing for a solution? Uber Technologies and a union are partnering to create a “portable benefits plan” for drivers in Washington state, home to a closely watched case centered on the labor rights of contract workers.

From an open letter from Uber CEO Dara Khosrowshahi, David Rolf, President SEIU 775 and Nick Hanauer, Founder Civic Venture Partners:

“We firmly believe that renewing the social contract is both urgent and important. We acknowledge that developing a first-of-its-kind scheme will involve business impacts, implications for worker and consumer protection, complexity in market design and regulatory framework and the need for prudential standards.”

This is only one proposed effort to solve the the question over how to fit the gig economy into existing labor structures. Other proposals talk about a third classification of worker. There are high stakes on both sides. An NPR/Marist poll released this week shows contract work is booming, with 32 million Americans currently making their living that way.

|

Corporate Outlook: Post Tax Reform, and New State Laws

Amazon says it won't ask prospective hires for salary history, BuzzFeed News reports. Managers cannot “directly or indirectly ask candidates about their current or prior base pay, bonus, equity compensation, variable pay, or benefits” or “use salary history information as a factor in determining whether or not to offer employment and what compensation to offer a candidates.” The move comes as state and local jurisdictions adopt measures to promote pay equity.

Other tech giants, including Google and Facebook, have banned recruiters from asking questions about salary history. A case was recently heard in the U.S. Court of Appeals for the Ninth Circuit that directly confronts whether an employer was permitted to rely on salary history to justify pay differences.

Quartz has a different take: The movement could backfire—leading employers to make false assumptions about how much a woman makes. The article suggests this happened with similar “ban the box” initiatives to keep employers from discriminating against black applicants. Employers made assumptions about black candidates they wouldn't make about white men.

Big businesses are promising new benefits. Starbucks Coffee Companyis planning wage increases, new paid sick time for all its employees and a stock plan, in part citing tax reform as reason for its sudden generosity. Disney and Walmart also added additional paid leave benefits. (Walmart also previously announced higher wages but it still falls behind its competitor Target, which offers $15 as a minimum wage.) Visa and Nationwide Mutual Insurance announced they would be offering higher matches on 401K plans. Others expanded benefits in health care offerings.

The New York Times put together a chart showing the major corporations focused on new paid leave policies, which has become a major motivator for companies seeking to retain employees. The Times points out that the United States is the only industrialized country not to mandate paid parental leave, which makes these corporations announcements significant. McDonald's, IBM and AT&T also recently expanded their leave benefits.

Around the Water Cooler

Here's a rundown of headlines and happenings…

U.S. Labor Department moves to shield in-house judges. Secretary Alexander Acosta wanted to “lift the cloud of uncertainty” surrounding the agency's 40 administrative law judges after the Trump administration switched sides in the Supreme Court. [National Law Journal]

Google CEO defends the firing of the engineer whose memo went viral.Sundar Pichai says he does not regret firing James Damore for his fiery memo criticizing the company for its diversity efforts. [The Verge]

How William Emanuel resolved conflicts. The NLRB member and former Littler Mendelson partner recused himself from dozens of cases but used other vehicles to cast votes on related issues. [ProPublica]

McDonald's joint-employer case is on hold amid settlement talks.Another mark of the influence of new NLRB general counsel Peter Robb. [Reuters] Tech lobbying groups push for diversity. The Internet Association, the voice for tech giants, is pushing an initiative to try to improve diversity in the predominantly male industry. [Recode]

Still waiting for shutdown pay. Some federal employees who worked during the 2013 shutdown are still waiting for pay. We talked to the lead attorney in that case. [National Law Journal]

How much to say about that fired employee? In the wake of the #MeToo movement, companies are grappling with questions typically resolved quietly by human resources departments. What's the right balance? Managament lawyers offer perspective. [Corporate Counsel]

That's all for this week and thanks for reading. Tips? Thoughts? Reach me at [email protected]