Articles Posted in Uncategorized

We previously reported on the New York Department of Labor’s (NYDOL) delay in ruling on whether some former Uber drivers were eligible for unemployment benefits. To determine eligibility for unemployment benefits, NYDOL had to decide whether Uber drivers are employees or independent contractors. NYDOL finally reached a decision last week in favor of the Uber drivers.

Worker advocates in New York have taken this ruling from the NYDOL as a sign that they could be successful in arguing that Uber should treat its drivers in New York as employees. This would mean that they are entitled to a whole host of employment benefits such as workers compensation and overtime pay.

New York has now joined Oregon and California in determining that Uber drivers are employees for purposes of unemployment benefits determinations. Each state that makes a determination that Uber drivers are employees creates more precedent and more momentum for other states to do the same.

Multiple studies have shown that homeless people face pervasive employment discrimination. In 2014, a survey of homeless people found that over 70% of them believed that businesses had discriminated against them based on their housing status. Homeless people face obstacles in getting employment because they are stereotyped as drug abusers and mentally disabled. (Of course, discrimination against the disabled is also illegal, but that is the subject for a different blog post.) Needless to say, this type of discrimination creates a vicious cycle of poverty for homeless people.

Maine does not have a law that prohibits employment discrimination against homeless people. Other New England states—Connecticut and Rhode Island—have passed laws, however, that prohibit employment discrimination against homeless people. Criminal statutes in Maine call for heightened punishment when a victim is targeted because s/he is homeless. A Maine law that prohibits employment discrimination against the homeless would go even further toward protecting one of the most, if not the most, vulnerable populations in our state.

Another option to help homeless people find employment is to enact laws that encourage employers to hire homeless people. Enhanced tax breaks for hiring the homeless or doing more to steer government contracts to employers that actively recruit homeless people for employment are two possibilities. There are already laws that provide these types of tax breaks to the poor but the tax breaks could be enhanced. All of these ideas merit consideration in Maine’s legislature and Congress.

This week the U.S. Equal Employment Opportunity Commission (EEOC) convened a number of experts to discuss how employers have begun and will increasingly continue to use “Big Data” to make employment decisions. These uses of Big Data include using algorithms, “data scraping” of the internet, and other means to evaluate tens of thousands of data points. Employers use these techniques to determine who to hire, who to promote, how to determine whether an employee is performing well, and make other employment decisions.

“Big Data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations, and promotions,” said EEOC Chair Jenny R. Yang. “At the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”

The experts saw the potential for the use of Big Data to make fairer employment decisions, reduce the role of implicit bias, and promote equality. At the same time, if not used properly, the use of Big Data could continue, and possibly worsen, inequities in employment decisions. As one expert said, “algorithms may be trained to predict outcomes which are themselves the result of previous discrimination. The high-performing group may be non-diverse and hence the characteristics of that group may more reflect their demographics than the skills or abilities needed to perform the job. The algorithm is matching people characteristics, rather than job requirements.”

A new internet company named Blendoor has developed an app that will hide the names and photos of job seekers from employers in order to lessen the effect of unconscious bias on hiring decisions.  It is well established that everyone harbors biases against certain groups of people and those biases influence our decisions on an unconscious level.  Social scientists have studied and tested this phenomenon for decades.  If you don’t believe in the pervasiveness of unconscious bias, you should check out some of the tests that measures unconscious bias called implicit association tests (IAT).  IAT shows that even people who strongly believe that they have no discriminatory biases do harbor biases that affect their decision making on an unconscious level.

We have reported on a variety of studies which show statistically significant differences in the ways that certain types of job applicants face discrimination based on religion, age, and sexual orientation.  Other studies have shown similar results with respect to sex and race.  Blendoor’s founder, Stephanie Lampkin, believes that hiding information that indicates applicants’ genders and races can lessen the disparities in hiring rates for people of color and women.  Lampkin also believes that women and people of color will be more comfortable creating profiles on Blendoor than other platforms, such as Linkedin, where job seekers’ names are visible and employers often expect to see applicants’ photos.

Blendoor’s methods sound like they may help lessen disparities but they are unlikely to eliminate disparities.  Blendoor is designed for the tech industry and employers in that industry will likely interview applicants before hiring them.  If that interview process is not carefully crafted to mitigate the effects of unconscious bias, that bias will likely still impact a significant number of hiring decisions.  Furthermore, many employers rely on information about applicants’ criminal histories, credit histories, and employment histories to make hiring decisions.  African American and Hispanic applicants are statistically more likely to have problematic criminal histories, credit histories, and/or employment histories than white applicants.  For example, a disproportionate number of African American and Hispanic people get arrested for and convicted of crimes as compared to white people.  These disparities in criminal histories, credit histories, and employment histories are also due, in part, to unconscious bias.  Thus, when employers rely on these types of histories, the societal problem of unconscious bias can still create disparities in the hiring process unless an employer takes steps to correct for this unconscious bias.

The Maine Department of Labor (MDOL) recently issued a report on the results of employers’ drug testing programs in Maine during 2015.  Under Maine law, unless federal law requires an employer to drug test, employers who want to test applicants or employees for drugs must submit their drug testing plan to MDOL for approval.  Every year, MDOL issues a report on the results of those drug testing plans it has approved.

In 2015, the percentage of positive results reached a record high of 5%.  The vast majority of those positive results stemmed from positive tests for cannabinoids, which include marijuana.  The results varied across industries and also based on whether the tests were conducted on applicants as opposed to current employees.  For instance, in the retail industry 6.2% of drug tests were positive while in the construction industry 3.8% of drug tests were positive.  A higher percentage of drug tests administered to employees were positive as compared to applicants because employers less commonly test current employees and many times only test current employees when they have reason to believe that the employee is using drugs.

The fact that cannabinoids were, by far, the drug most commonly found in the drug tests is interesting given Maine’s medical marijuana laws.  In Maine, it is legal in some instances for people to use marijuana for medicinal purposes.  The MDOL report does not indicate how many of these positive cannabinoid test results came from people who were using marijuana legally under Maine law.

This week the New Jersey Supreme Court held that a criminal prosecution against a woman who took documents from her employer to support hers and her son’s employment discrimination case against their employer could proceed. This case should serve as a cautionary tale to all employees who are considering taking documents from their employer’s files to prove that the employer violated their rights.

In this case, the employee who faces criminal prosecution, Ivonne Saavedra, and her son both worked for the North Bergen Board of Education (Board). In 2009, Saavedra and her son filed an employment discrimination lawsuit against the Board in which they alleged that the Board retaliated against them because Saavedra had blown the whistle on illegal activity such as pay irregularities, improper administration of employee vacation and family leave, and unsafe working conditions. During the litigation of this discrimination case, Saavedra’s attorney had to produce documents to the Board’s attorney that Saavedra had taken from the Board.  She had taken the documents from the Board because she believed they supported her discrimination case.

When the Board learned that Saavedra had taken the documents it informed the county prosecutor and the county prosecutor obtained an indictment against Saavedra for official misconduct and theft. Saavedra’s attorney tried to convince a court to dismiss the criminal charges against Saavedra. One argument that Saavedra’s attorney raised was that the New Jersey Supreme Court previously held in Quinlan v. Curtiss-Wright Corp. that, in certain circumstances, an employer may not retaliate against an employee because she took documents from the employer in order to support a discrimination claim against the employer. The New Jersey Supreme Court rejected this argument, in part, because the Qunilan case said nothing about whether an employee could be criminally prosecuted for taking documents—it only addressed the issue of whether an employer could retaliate against an employee who took documents from the employer in support of his or her discrimination claim.

U.S. Senator Elizabeth Warren (D-MA) has introduced a bill that would prohibit most employers from screening job applicants’ credit histories. Senator Warren argues that the bill, which is called the Equal Employment for All Act, is necessary because too many employers refuse to hire applicants with poor credit histories even though those credit histories often have little to do with their ability to do the job. “Extensive research has shown that a family’s poor credit is more often the result of medical bills or unemployment than a mark of someone’s character or ability to perform in the workplace,” said Senator Warren.

According to Warren, “[f]ollowing the financial crisis five years ago, millions of people confronted job loss, shrinking home prices, and depreciated savings. For too many people, the fallout from the crisis also damaged their credit. Today, credit reports are not always accurate, and poor credit disproportionately targets women, minorities, and those already struggling financially.”

A study from the public policy organization Demos supports Senator Warren’s arguments. The author of the Demos study found that credit reports are often based on inaccurate information. Even when the reports are accurate, poor credit is often caused by household unemployment, lack of health insurance, and medical debt–all reasons that have little or nothing to do with whether an applicant would be a good employee.

Earlier this month, California passed a law which will prohibit employers from discriminating against employees who were victims of domestic violence. A domestic violence victim named Carie Charlesworth championed this legislation after her employer fired her because her abusive ex-husband showed up at her workplace. Charlesworth worked at a school and, rather than support her, the school chose to fire her in order to address the problem. The District of Columbia is also considering a law similar to the one passed in California.

“Victims will no longer fear losing their livelihoods and being re-victimized in the workplace because of the actions of their abusers. They will no longer fear retribution if they talk about these issues with an employer. And we will no longer send the mistaken message to employees that silence about these issues in the workplace is the same as safety,” said Sen. Hannah-Beth Jackson, D-Santa Barbara.

Maine does not prohibit employment discrimination against domestic violence victims. There is a law in Maine, however, which requires employers to provide victims of domestic violence with time off from work with or without pay to prepare for and attend court proceedings; receive medical treatment; or obtain necessary services to remedy a crisis caused by domestic violence, sexual assault, or stalking. Employers must provide an employee with this leave if the employee or the employee’s daughter, son, parent, or spouse is a victim of violence, assault, sexual assault, stalking, or any act that would support a protection from abuse order.