Wednesday, December 30, 2020

Tackling Sex Discrimination in Big Tech: Pinterest and Beyond

The tech industry has a sex discrimination problem. It’s no secret. Like much of the white-collar workforce,
men dominate the tech sector. Women hold less than 20% of the technical jobs at some of the largest tech giants. As of 2019, only about 11% of women in tech held supervisory roles. Tech-employed women are paid less than their male counterparts, the subject of (for example) a certified class action against Oracle.

The dearth of women in tech has negative implications for consumers and society at large. Many tech products are designed with men in mind, such as smartphones too large for the average woman’s hands, voice recognition software that understands men better than women, and fitness trackers that don’t count steps while performing household chores or pushing a stroller. Software and artificial intelligence have repeatedly been shown to exhibit race and sex bias.

The male-dominated tech industry has proven resistant to addressing the field’s bias and its wider implications. For instance, Google terminated (it would say “accepted the resignation of”) Timnit Gebru, an Ethiopian-born engineer, after she declined to retract an academic research paper examining the bias risks of Google’s artificial intelligence concerning languages (implicating, for example, predictive text).

One large tech company that came under fire for sex bias, Pinterest (a platform with a predominantly female user base), settled a sex discrimination lawsuit filed by former chief operating officer Francoise Brougher for $22.5 million. Ms. Brougher’s settlement, achieved by Rudy Exelrod Zieff & Lowe, represents a major victory for marginalized women in the tech world. Ms. Brougher’s lawsuit came on the heels of the June resignations of Pinterest employees Ifeoma Ozoma and Aerica Shimizu Banks and their public airing exposing of the explicitly racist and sexist comments they endured at the company, their lower pay, and the retaliatory treatment they experienced when they spoke out. Brougher’s lawsuit similarly alleged that her pay structure was less favorable than that of her male executive counterparts, she was given feedback riddled with gender bias, and she was left out of executive meetings that were necessary for her to perform her job, until she was fired in April 2020.

The publicity following these courageous women’s actions seems to be having an impact on the company. After more than 200 employees virtually walked out in the female former employees’ support, and shareholders sued Pinterest for damaging the company’s reputation and stock value with its toxic work culture, Pinterest added two Black female members to its board of directors, hired a new head of inclusion and diversity, and made other changes to address its culture of bias. Hopefully, Pinterest will listen to these voices rather than cutting them out as they did with Brougher, or as Google did with Ms. Gebru. The $22.5 million settlement for just one high-profile discrimination victim should give Pinterest and other tech companies ample incentive to work to prevent workplace discrimination against countless women going forward. If these companies fail to do so, the settlement should encourage other marginalized women in tech to come forward.

If you are a woman who has experienced sex discrimination in the tech industry, or if you have experienced other discrimination or harassment in the workplace, contact Bryan Schwartz Law

Thursday, December 17, 2020



While the COVID-19 pandemic sweeps across this nation, employers are taking advantage of the pandemic-induced recession to, once again, eliminate jobs and transition workers into the gig-economy. A recent New York Times article highlights the uncertainty facing today's workers. The labor market has only recovered 12 million of the 22 million jobs lost this past spring, leaving 10 million formerly employed workers, often in the service-industry, reeling. Many of these jobs may not return once the pandemic is over and the economy improves, as happened after the Great Recession of 2008. While the New York Times notes that these workers often need retraining or additional education to compete for jobs, gig-economy companies continue to hire these vulnerable workers without the employment protections to which workers are – or should be - entitled. In California, the gig-economy companies pulled off a sleight of hand, through the most disproportionately-funded ballot measure in the state’s history, Proposition 22 ("Prop. 22"), for the purpose of potentially continuing to exempt their workers from some of the robust employee protections that California’s legislature, Governor, Supreme Court and lower courts had previously ensured. While the ballot measure succeeded, gig-economy workers should still have claims under the law.

 The roots of today's gig-economy employment crisis began in 2008. At that time, 9 million workers lost their jobs. In its aftermath, workers often found less secure employment and/or relied on alternative work like being an independent contractor in the gig economy. Unsurprisingly, a plethora of gig-economy companies, like DoorDash, Uber, Lyft, Instacart, and Postmates, have risen to be market leaders on the backs of these marginalized workers that they have treated as independent contractors exempt from legal protections. In response to the rise of the gig economy and the precarious position of gig-economy workers, all three branches of California government - the courts, legislature, and executive branch - re-affirmed that many gig-economy workers are employees entitled to the legal protections of the California Labor Code. Such protections include minimum wage (Cal. Lab. Code § 1194, among others), overtime (Cal. Lab. Code § 510), reimbursement for business expenses (Cal. Lab. Code § 2802), and paid sick leave (Cal. Lab. Code §246). Here at Bryan Schwartz Law, we have written extensively about California's efforts to protect gig-economy workers here, here, here, here, and here. In short, the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court held that workers are presumptively employees subject to the straightforward ABC test, which considers (among other things) whether the workers are providing the core services of the business (like those who drive for Uber and Lyft). The California legislature agreed with the Court and codified the ABC test outlined in Dynamex with A.B. 5, which the Governor signed, and went into effect on January 1, 2020. The Attorney General of California has sued Uber and Lyft (People v. Uber and Lyft (Sup. Ct. San Francisco), Case No. CGC-20-584402) to require them to stop misclassifying their workers under A.B. 5, and won a preliminary injunction on August 10, 2020 requiring Defendants to reclassify their drivers as employees during the pendency of the lawsuit.

In response, several gig-economy companies worked to place Prop. 22 on the ballot. Prop. 22 exempts from A.B. 5 any app-based drivers that (a) provide delivery services on-demand through an online application or platform or (b) use a personal vehicle to provide prearranged transportation services for compensation through an online application or platform. In other words, your ride-share drivers and food delivery persons are exempted from A.B. 5's codification of the ABC test. In order to sell Prop. 22 to voters through its advertising blitz, these gig-economy companies promised at least 120% of the minimum wage (which has been estimated to work out to $5.64 per hour after deducting for wear-and-tear) and 30 cents per mile when engaged - not waiting for a fare or order. While Prop. 22's passage is a setback for workers' rights, all may not be lost. Prop 22. may not be retroactive. Prop. 22 appears to be forward-looking and silent as to any worker misclassification claims that arose prior to Prop. 22's passage. When the Court issued its August 10th preliminary injunction, Judge Schulman appeared to suggest that "it would not moot out . . . past violations." (Order for Preliminary Injunction, People v. Uber and Lyft (Aug. 10, 2020), p.8). Furthermore, Prop. 22's provisions regarding healthcare subsidies and mileage reimbursement focus on future dates for payment or calculation. The remaining provisions do not explicitly discuss retroactive application except for Article 9. Article 9 provides that the Legislature may only amend Prop. 22 by a super-super majority - 7/8ths of the Legislature - including any amendments passed since October 29, 2019 (the date the ballot was filed). While it appears amending Prop. 22 will be challenging, this suggests that workers may continue to pursue claims for minimum wage, overtime, and reimbursement for business expenses that accrued prior to Prop. 22's passage. Furthermore, the 9th Circuit in Vazquez v. Jan-Pro Franchising International, Inc. made clear that Dynamex and the ABC test apply retroactively. Thus, workers may have significant misclassification claims that have accrued prior Prop. 22's passage.

Moreover, while Prop. 22 may have exempted gig-economy workers from the protections conferred upon them by A.B. 5 and the ABC test, gig-economy workers may be employees under other relevant tests. The Dynamex court extensively discussed 3 alternative tests (from Martinez v. Combs) for employment under California’s Wage Orders: 1) to exercise control over wages, hours, or working conditions; 2) to suffer or permit to work; and 3) to engage, thereby creating a common law employment relationship. You can learn more about these 3 alternative tests here and the Borello test for common law employment relationships here. The Dynamex court only applied the ABC Test with respect to the second alterative test: to suffer or permit to work. Dynamex (2018) 4 Cal.5th 903, 965. In enacting A.B. 5, the Legislature declared its intent to codify the Dynamex decision that "interpreted one of the three alternative definitions of 'employ,' the 'suffer or permit' definition . . . [and that] [n]othing in this act . . . affect[s] the application of alternative definitions . . . not addressed by the holding of Dynamex. Assembly Bill 5, Section 1(d) and (f), 2019-2020, Reg. Sess. The statute itself takes a more precise alternative in requiring that if a court rules the ABC test does not apply to a particular context, then the common law relationship test from Borello should be used. Labor Code § 2750(a)(3). Thus, A.B. 5's codification of Dynamex and the ABC test does not apply to the first and third alternative tests. Therefore, Prop. 22's exemption from A.B. 5 is limited to the second alternative test. With Prop. 22's passage and A.B. 5's statement that the Borello common law relationship test applies in the event a court exempts a particular situation from the ABC test, it is unclear which test shall be used to demonstrate that gig-economy workers are employees because Prop. 22, not a court, preempted A.B. 5. Workers may be employees under the first and/or third (Borello) tests and therefore entitled to the full protection of the California Labor Code.

Despite Prop. 22's passage, the fight for workers' rights continues. Gig-economy workers may still have misclassification claims moving forward. Workers and their advocates must recognize that while the fight may become more difficult after the misguided passage of Prop. 22, there are still avenues for pursuing these claims.