The District of Columbia Circuit has unanimously upheld regulations to extend minimum wage and overtime protections to workers who take care of the elderly and the disabled in their homes, The New York Times' Noam Scheiber reports. The Obama administration enacted regulations to end an exemption from overtime and minimum wage laws for home-care workers.
The Economist opines that lawsuits over what it means to be an employee should shape the future of several industries.
For example, ride-sharing service Uber is facing cases, including a ruling by the California Labor Commissioner, that its drivers are employees, not independent contractors. McDonald's is being treated as a joint employer, together with franchisees, by the National Labor Relations Board's general counsel.
The problem, The Economist argues, is that employment law is based upon the Fair Labor Standards Act, which dates from 1938. However, the "'on-demand' economy is all but obliterating [the distinction between employees and independent contractors], by letting people sell their labour and rent out their assets—from cars to apartments—in a series of short-term assignments arranged by smartphone app."
In light of the fact that a divided Congress is not likely capable of updating labor law anytime soon, The Economist suggests that judges should be as conservative in possible in ruling that independent contractors are employees in order to not snuff out the on-demand economy.
A group of business trade groups filed a lawsuit this week to block a new rule from the National Labor Relations Board to expedite employee votes on joining unions, the Wall Street Journal's Melanie Trottman reports. The plaintiffs say the new rule, adopted by the board 3-2, "could deprive employers of time they need to tell workers why they think a company should remain union-free and limit their ability to launch timely legal challenges."
The five plaintiffs include the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation, and the Society for Human Resource Management.
The Indiana Supreme Court upheld a law that bans conditioning employment on paying union fees, Bloomberg's Sophia Pearson reports. The law made it a misdemeanor to require a worker to pay fees to get or keep a job.
During oral arguments at the U.S. Supreme Court today, the justices appeared split on whether having to go through an extensive screening after working in an Amazon warehouse is something workers should be paid for or is more akin to checking out at the end of one's shift, Tony Mauro, writing in Supreme Court Brief, reports. "Former Solicitor General Paul Clement, arguing his 75th case before the justices, asserted on behalf of the employer that 'the exit screenings are a logical part of the egress process' that does not require payment to workers," Mauro reports.
Here's a piece I wrote for the Connecticut Law Tribune on the state of transgender rights:
Studying landmark cases may be a hallmark of a legal education, but there are times when the lack of case law may be a good thing.
In the three years since Connecticut enacted a law banning discrimination based on gender identity, James J. O'Neill, a spokesman for the Connecticut Commission on Human Rights and Opportunities, reports that the commission has not received a single discrimination complaint based on gender identity or expression.
The dearth of complaints to the state's civil rights regulators does not mean that transgender people and those who identify with or express themselves as members of the opposite sex do not face discrimination, advocates say. But the law is working to protect people in unofficial ways, said Rachel Goldberg, general counsel for the Stamford Urban Redevelopment Commission and a board member of the national Lambda Legal organization, which advocates for the civil rights of lesbians, gay men, bisexuals and transgender people.
As an advocate, Goldberg, who is transgender, testified in favor of the Connecticut law three years ago. As an attorney, she said she was able to prevent an employee from being fired for undertaking the process to change genders by citing the Connecticut's explicit protection for gender identity. She explained that going to court is not always the best option for employees because new employers are reluctant to hire workers who have sued their past bosses.
"Having that law on the books makes [avoiding court] possible," she said.
The statute codified a 2000 ruling from the CHRO that Connecticut's nondiscrimination laws cover sex and gender identity, Goldberg said. The 2011 law puts lawyers representing individuals in gender identity cases in a stronger position, she said. While opposing counsel might have been able to argue in the past that gender-identity protection was the opinion of just one judge and a CHRO ruling is the opinion of just a few regulators, it's much harder for them to dismiss point-blank statutory language.
The update to Connecticut's law comes as federal level is expanding as well. The U.S. Department of Labor recently issued a directive to government contractors clarifying that discrimination based on gender identity and transgender status is sex discrimination. President Barack Obama has issued an executive order prohibiting federal contractors from discrimination on the basis of sexual orientation and gender identity, and the Labor Department's directive is an interim step to implement regulations to provide those protections.
The action by the Labor Department is "huge," said Jennifer Levi, director of the Transgender Rights Project at Boston-based Gay & Lesbian Advocates & Defenders, an advocacy group that has been active in Connecticut. "Gay, lesbian and transgender people continue to face an unbelievable amount of discrimination in the workplace," Levi said. "Having a prohibition against discrimination with entities that contract with the federal government really extends the commitment to nondiscrimination."
Levi also said that Connecticut's anti-discrimination law is "a very strong law. It makes it every clear that a person's gender identity is determined by a person's assertion of what it is."
Levi, who has conducted training sessions throughout Connecticut in tandem with the CHRO on the law, said that many of the state's employers have revised their employee manuals to ban discrimination on the basis of gender identity and sexual orientation.
"Laws provide legal protection but they also send an important message to those who are protected under the laws" as well as to those who have to abide by the law, Levi said.
Connecticut's law is not the only legal development that has advanced transgender rights.
Meghan Freed, of Freed Marcroft in Hartford, whose practice includes LGBT law, notes that the Connecticut Insurance Department issued a directive last December to stop insurers from having a blanket ban on providing health insurance benefits related to a person's gender identity or expression.
"The monetary reality of costs associated with gender transition is a huge deal," Freed said. "It's an affirmative thing."
The department said that an insurer's refusal to pay for medically necessary treatment regarding gender transition would be an unfair insurance trade practice. The department cited the General Assembly's enactment of the law to prohibit discrimination based on gender identity and expression.
The Insurance Department also cited Connecticut's law requiring parity between medical coverage and mental health coverage.
Medical services for gender transition are still classified as a medical disorder called "gender dysphoria," although advocates bridle at the notion that the issue is an illness of sorts, Freed said. Gender dysphoria is a diagnosis listed in the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders" and refers to people who strongly identify with and want to be the opposite gender.
Goldberg agreed that the biggest impact of Connecticut's antidiscrimination laws has been in the area of health care. Before the enactment of the state law, almost every health insurance policy contained language that excluded medical coverage for people who are transgender, even if the same procedure would be available to someone who was not transgender, Goldberg said.
While there has been a lot of progress in protecting people from gender-identity discrimination, the protections for transgender youth needs a lot of work, as has been illustrated in the case of Connecticut's "Jane Doe," a transgender teen who the Department of Children and Families at one point placed in an adult prison because of her allegedly unruly personality. Attorney Aaron Romano has called the state's treatment of his client unconstitutional.
Goldberg said there are significant issues about ensuring youth can get into the right shelters, are able to use the right bathrooms, and have protection for their gender identity if they end up in the juvenile justice system, Goldberg said.
The Washington Post's Robert Barnes writes that "compulsory union fees conflict with the First Amendment’s protection against forced association and speech," but Supreme Court precedent allows for public employees who opt out of union membership to still be forced to "pay 'fair share' fees to support the organization’s collective-bargaining work." The issue is coming up in a case pending before the U.S. Supreme Court on whether Illinois in-home assistants to peoples with disabilities and other people who otherwise could be institutionalized (paid through Medicaid-waiver programs) have to pay union fees. The justices are being asked to overrule their precedent.
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