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SUPREME COURT SEES JUSTICE DEPT OPPOSE NLRB

FROM SCOTUS BLOG, 19 JUNE 2017

Murphy Oil’s law: Solicitor General’s office reverses course in arbitration cases, supports employers
It is rare for the Office of the Solicitor General to change its position in a case before the Supreme Court after a change in administrations, even when the party in control of the White House changes. But that is exactly what happened last week, when the Trump administration weighed in on an important arbitration case: The office urged the justices to affirm the same decision that, on behalf of the National Labor Relations Board, it had previously asked them to review and overturn.

The about-face came in National Labor Relations Board v. Murphy Oil USA, in which the justices have agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the Federal Arbitration Act. In its petition for review on behalf of the NLRB, filed in September 2016, the Solicitor General’s office had argued that such agreements are not, because the National Labor Relations Act protects employees’ ability to engage in joint actions regarding the terms or conditions of their employment. On January 13, 2017, just seven days before the inauguration of President Donald Trump, the Supreme Court granted the NLRB’s petition, along with two others filed by employers (Ernst & Young LLP v. Morris and Epic Systems v. Lewis), and consolidated the three cases for one hour of oral argument.

Under the briefing schedule ordered in the case, the employers in all three cases filed their briefs on June 9, with briefs from the employees and the NLRB to follow on August 9. But on Friday (the deadline under the court’s rules to do so), the United States filed a “friend of the court” brief supporting the employers. The petition for review had been signed by seven lawyers from the NLRB, including its general counsel. Those NLRB lawyers were conspicuously absent from Friday’s brief, which was signed only by lawyers from the Solicitor General’s office. Acting Solicitor General Jeffrey Wall acknowledged that his office had previously filed a petition on behalf of the NLRB, “defending the Board’s view that agreements of the sort at issue here are unenforceable.” But, Wall continued, “since the change in administration, the Office reconsidered the issue and has reached the opposite conclusion.” In particular, Wall explained, the NLRB had not given “adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the” Federal Arbitration Act.

In a press release published on the NLRB’s website, the NLRB indicated that Wall had authorized it to represent itself in the Supreme Court proceedings in this case, and nothing in the brief of the United States suggests that the NLRB has changed its position. This means that the NLRB is likely to file its own brief, reiterating its original position in the case, in early August. And if the United States seeks and receives permission to argue in the case, as it virtually always does in cases in which it files “friend of the court” briefs, a lawyer for the United States would argue against a lawyer for a U.S. agency – a phenomenon perhaps even more uncommon than a change in position following a change in administration.

EEOC MAY TARGET UNIVERSITIES FOR DISCRIMINATION

FROM REALCLEAR EDUCATION, 16 JUNE 2017

America’s colleges and universities are, with good reason, under attack for promoting an expensive postsecondary education “bundle” that is increasingly unmoored from the demands of the workforce.  Bipartisan legislation introduced by Senators Bennet and Rubio now aims to bust the accreditation cartel. But like the music and television industries, entrenched colleges and universities have, to date, fought the unbundling of a lucrative $500 billion revenue stream.

For the most part, progressives continue to defend the current system, with free college now core to Democratic Party orthodoxy. But in an ironic twist, the unbundling of higher education may be fueled less by private-sector pressure and would-be disruptors than by decades of progressive policies.

Since the Civil Rights Act of 1964, employers have been prohibited from engaging in “different rates” of hiring or promotion based on race, sex, or origin. Employment policies themselves need not be discriminatory; judges consider whether hiring practices have an adverse impact. Practices are deemed illegal if they result in a deviation of 20% or more, in relation to the advantaged group.

Each year, the Equal Employment Opportunity Commission sends tens of thousands of letters to employers charging them with adverse impact discrimination. Many result from complaints about background checks or assessments that may have an adverse impact on the hiring process. None, however, address college degree requirements, despite the fact that such requirements are increasingly common – including for jobs that may not have required them in the past. According to one estimate, although 65% of executive assistant positions now require bachelor degrees, less than 20% of current EAs have a degree. Across all sectors, similar “credential gaps” range from 10-40%.

On their face, college degree requirements invariably fail the 20% deviation adverse impact test: 42.9% of whites ages 25-29 have bachelor’s degrees compared with just 22.7% of African-American and 18.7% of Hispanics. So one would think college degree requirements in job descriptions would be ripe for EEOC action. According to Associate Dean Charles Sullivan, an employment law expert at Seton Hall Law School, “Remarkably, the answer is almost never. No one is interested in upsetting this apple cart.”

When an enterprising lawyer – or state’s attorney general – finally decides to bring such a case, employers will attempt to show that the ratios of new hires to applicants don’t diverge by more than 20% for any group. That’s true, but only because college degree requirements keep candidates without degrees from applying to good jobs. Proving adverse impact of college degree requirements will require the demonstration that employment policies actually keep qualified candidates from applying. According to Sullivan, “such a case will require experts to prove the statistical case. But it can be done.”

Employers will, in turn, argue that degree requirements are “job-related” and “consistent with business necessity.” One of the few cases on the topic, for example, found that a library’s requirement that applicants possess a Master’s degree in library science was appropriate. Although such an argument may have merit in the case of specialized and graduate degrees, recent data suggests that technical skills now outnumber all other skills in job descriptions across nearly all industries. At a time when university coursework hasn’t kept pace with the rapidly evolving technical demands of our modern workforce, it seems less and less likely that pervasive college degree requirements will withstand legal scrutiny.

As a final defense, employers may argue that they lack capacity to filter candidates in the absence of the objective degree requirement. But this fails to ring true when tens of thousands of American job-seekers are availing themselves of bootcamps and other degree alternatives. LinkedIn Learning recently reported that project management certifications are on the rise, resulting in as much as a 20% salary bump for the so-called “poor man’s MBA.” As an array of microcredentials and digital portfolios signal candidate competencies and Applicant Tracking Systems sort candidates using an array of criteria, alternative hiring measures abound.

And so American employers, committed to using the degree as a crude hiring filter, will be left with “convention” as last defense – a notably unsuccessful argument in anti-discrimination law.

When a case challenging rampant college degree requirements is finally brought – and won – it will not only be a civil rights victory, it will also propel the ‘Great Unbundling’ of American higher education – a major victory for champions of economic mobility and economic growth as more Americans are considered for employment according to their capabilities rather than their pedigrees.

DOL MOVES A RULE THAT COULD FAVOR FRANCHISORS

FROM THE ORLANDO SENTINEL, JUNE 8

Fanchise companies, including many restaurants in the Orlando area, are applauding a move by the Trump Administration’s Department of Labor on Wednesday that could reduce lawsuits against franchisors.

It could also mean less money for employees or customers who sue franchise businesses.

Franchise companies, such as McDonald’s Corp., faced more pressure regarding problems including workplace discrimination or injury in recent years. Under the Obama Administration, the labor department issued guidance that viewed such companies as “joint employers” with their franchise locations.

Wednesday’s labor announcement was terse, just three sentences. It reverses attempts by the department under the Obama Administration to attach greater liability to franchisors or contractors, referred to as joint employers.

The department announced “the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.”

“It is a favorable thing that the franchise industry would be happy to hear,” said Biff Godfrey, an Orlando attorney who previously served as general counsel for TGI Fridays restaurant chain.

Franchises like TGI Fridays are typically owned and operated by small, local businesses. There can be some exceptions to that situation, including if a franchisee owns dozens of locations. But suing a large corporation like McDonald’s is a much more wealthy target.

“It’s an attempt to reach into the deep pocket of the franchisor, rather than the company you actually work for,” Godfrey said. “That concept could potentially end the whole franchise business model.”

He said franchise companies offer basic advice to franchisees about the need to have policies addressing discrimination, harassment and other problems. But the big corporations generally don’t get involved in telling the smaller operators what they should do about such issues.

The news release from the Labor Department said it would continue enforcing the law, though: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction …”

CHIPOTLE IN MAY BE IN CLASS ACTION OVERTIME SUIT

FROM USA TODAY, JUNE 7

A lawsuit seeking class-action status was filed against Chipotle Mexican Grill alleging the fast-food chain failed to adequately compensate some employees for overtime work under a federal rule that went into effect late last year.

The lawsuit, filed this week in U.S. District Court in New Jersey, alleges the company failed to pay overtime to employees under the new overtime rule issued by the Labor Department last year — and that it’s not the only one. Joseph Sellers, a partner at Cohen Milstein Sellers & Toll, who represents the plaintiffs, said the issue may apply to other companies as well.

“For conscientious employers, a suit like this reminds them that the rule is in effect and that they should be paying overtime,” Sellers said. “I don’t fully understand the mind-set that has given rise to this broad belief that companies are not bound by this.”

At the core of the suit is the rule that made more employees eligible for overtime pay. It required employers to pay overtime to any worker who earned up to $47,476. Previously, the companies only had to pay overtime to workers making $23,660 or less. But in late November, shortly before the rule went into effect Dec. 1, a Texas court put enforcement of it on hold so employers didn’t have to pay overtime to workers who had the higher salary threshold. The lawsuit says Chipotle should be required to continue to pay overtime despite the injunction of enforcement of the rule by the Texas court. It contends the Texas injunction did not apply to private employers and the overtime rule would stay in effect until the court issues its final ruling.

The lead plaintiff is a worker named Carmen Alvarez, who was training to become a general manager at a Chipotle restaurant, known as an “apprentice” within the chain. She was working about 10 overtime hours a week and was earning a total of about $43,082 a year, but was denied overtime pay when the injunction was issued.

Chris Arnold, a spokesperson for Chipotle, said the company doesn’t discuss pending legal actions. He added, however, that Chipotle’s employment practices are compliant with applicable laws and specified that “a lawsuit is nothing more than allegations, and the filing of a suit is in no way proof of any wrongdoing.”

Tim Trujillo, a human resources consultant who founded Focus HR in Tehachapi, Calif., said even if the lawsuit was to win in court, it might not be around for much longer if the Trump administration chooses to roll back the rule.

The Labor Department “will probably be reviewing and deciding whether they want to go forward with the same regulations” that came during the Obama administration, Trujillo said.

NON COMPETE AGREEMENTS SPREAD

FROM THE NY TIMES, MAY 13

How Noncompete Clauses Keep Workers Locked In
Restrictions once limited to executives are now spreading across the labor landscape — making it tougher for Americans to get a raise.

By CONOR DOUGHERTY
MAY 13, 2017
Keith Bollinger’s paycheck as a factory manager had shriveled after the 2008 financial crisis, but then he got a chance to pull himself out of recession’s hole. A rival textile company offered him a better job — and a big raise.

When he said yes, it set off a three-year legal battle that concluded this past week but wiped out his savings along the way.

“I tried to get a better life for my wife and my son, and it backfired,” said Mr. Bollinger, who is 53. “Now I’m in my mid-50s, and I’m ruined.”

Mr. Bollinger had signed a noncompete agreement, designed to prevent him from leaving his previous employer for a competitor. These contracts have long been routine among senior executives. But they are rapidly spreading to employees like Mr. Bollinger, who do the kind of blue-collar work that President Trump has promised to create more of.

 

The growth of noncompete agreements is part of a broad shift in which companies assert ownership over work experience as well as work. A recent survey by economists including Evan Starr, a management professor at the University of Maryland, showed that about one in five employees was bound by a noncompete clause in 2014.

Employment lawyers say their use has exploded. Russell Beck, a partner at the Boston law firm Beck Reed Riden who does an annual survey of noncompete litigation, said the most recent data showed that noncompete and trade-secret lawsuits had roughly tripled since 2000.

“Companies of all sorts use them for people at all levels,” he said. “That’s a change.”

Employment lawyers know this, but workers are often astonished to learn that they’ve signed away their right to leave for a competitor. Timothy Gonzalez, an hourly laborer who shoveled dirt for a fast-food-level wage, was sued after leaving one environmental drilling company for another. Phillip Barone, a midlevel salesman and Air Force veteran, was let go from his job after his old company sent a cease-and-desist letter saying he had signed a noncompete.

Then there is Mr. Bollinger, whose long-running legal battle is full of twists and turns that include clandestine photography, a private investigator, a mysterious phone call and courthouse victories later undone by losses in appeals court.

“This is the strangest noncompete case I have ever been involved with, or even heard of,” said Michael P. Thomas, Mr. Bollinger’s lawyer and a partner at Patrick, Harper & Dixon in Hickory, N.C.

Alan B. Krueger, a Princeton economics professor who was chairman of President Barack Obama’s Council of Economic Advisers, recently described noncompetes and other restrictive employment contracts — along with outright collusion — as part of a “rigged” labor market in which employers “act to prevent the forces of competition.”

By giving companies huge power to dictate where and for whom their employees can work next, noncompetes take a person’s greatest professional assets — years of hard work and earned skills — and turn them into a liability.

“It’s one thing to have a bump in the road and be in between jobs for a little while; it’s another thing to be prevented from doing the only thing you know how to do,” said Max Burton Wahrhaftig, an arborist in Doylestown, Pa., who in 2013 was threatened by his former employer after leaving for a better-paying job with a rival tree service. He was able to avoid a full-blown lawsuit.

Noncompetes are but one factor atop a great mountain of challenges making it harder for employees to get ahead. Globalization and automation have put American workers in competition with overseas labor and machines. The rise of contract employment has made it harder to find a steady job. The decline of unions has made it tougher to negotiate.

But the move to tie workers down with noncompete agreements falls in line with the decades-long trend in which their mobility and bargaining power has steadily declined, and with it their share of company earnings.

When a noncompete agreement is litigated to the letter, a worker can be barred or ousted from a new job by court order. Even if that never happens, the threat alone can create a chilling effect that reduces wages throughout the work force.

“People can’t negotiate when their company knows they won’t leave,” said Sandra E. Black, an economics professor at the University of Texas at Austin.

The Right to Walk Away

In 2011, Timothy Gonzalez started working as a labor hand for a company called Singley Construction. He was 18 years old and already a father, and the extent of his education was a high school equivalency test. In other words, he needed money and did not have many options.

Mr. Gonzalez started at a little over $10 an hour in a job he described as “pretty much shoveling dirt.” Nevertheless, he signed an employment contract that included a noncompete clause, enforceable for three years within 350 miles of Singley’s base in Columbia, Miss.

“All I heard — at that age and the situation I was in — was just, ‘If you want a paycheck, sign here,’ and so I signed there and went to work,” said Mr. Gonzalez, who is now 24 and lives in Milton, Fla.

Mr. Gonzalez was later promoted to a job where he operated an environmental drilling rig. After leaving the company two years ago, and subsequently taking a better-paying position with a competitor, Mr. Gonzalez was sued for violating his agreement not to compete.

 

Mr. Gonzalez’s new boss, Gary Hill, owner of Walker-Hill Environmental, an environmental drilling company, said he ignored the suit for two weeks because he didn’t believe it was real.

“I said, ‘There’s no way this will happen,’ but I’ll be danged if I didn’t have to attorney-up and fight the thing,” said Mr. Hill, who settled the case out of court. “It’s ridiculous — it’s slavery in the modern-day form.”

Representatives of Singley Construction declined to comment.

The surprise Mr. Gonzalez got is not uncommon. Many workers, not just blue collar but people who went to college or have an advanced degree, have only a vague understanding of what a noncompete is, and they are often asked to sign one when they have little chance to negotiate.

In a 2011 paper that surveyed technical workers who had signed noncompetes, Matthew Marx, a professor at the Sloan School of Management at M.I.T., found that employers typically presented workers with noncompete contracts when the employees lacked negotiating leverage, on their first day at work, for instance.

“By then, they had said yes to their company, and no to the other companies they were negotiating with,” Mr. Marx said.

Companies have always owned their employees’ labor, but today’s employment contracts often cover general knowledge as well. In addition to noncompete clauses, there are nonsolicitation and nondealing agreements, which prevent employees from calling or servicing customers they have worked with in the past. There are nonpoaching agreements that prevent employees from trying to recruit old colleagues.

Put it all together, and suddenly some of the main avenues for finding a better-paying job — taking a promotion with a competitor, being recruited by an old colleague — are cut off.

Companies say this is a natural reaction in an economy that is more about knowledge and less about sweat. Data makes up a larger share of many companies’ assets, and the more people work around the clock, and remotely, often switching between company-owned and personal devices, the more difficult it becomes to guard it.

“When a person takes a trade secret and walks across the street to another company, how am I going to know that?” said Paul T. Dacier, a longtime technology executive who was once general counsel for EMC Corporation (now Dell EMC), and today serves in the same position for an agriculture technology start-up called Indigo. “And when I do find out, it’s too late.”

The problem is that it can be hard to distinguish true intellectual secrets from the accumulated skills that make workers more valuable. And since few companies want to lose good workers or give out huge raises, these agreements are making their way down the economic ladder to people like hairstylists and sandwich makers, far removed from what is thought of as the knowledge economy.

Noncompete enforcement varies from state to state, and economists have used that disparity to study how they affect businesses and the economy. The results are almost universally negative: Wages, employment and entrepreneurship are all diminished when workers have little leverage to bargain with their employer or leave a job for a better opportunity.

Some workers end up idle, collecting unemployment and using programs like Medicaid. Many others take jobs well below their means, robbing the nation of their skills.

“Two years ago, Phillip Barone left his job doing sales and marketing for a military magazine to take a similar job, with a pay increase of about 10 percent, at a rival publication. A few months later, his old employer sent a letter saying he had violated a noncompete agreement that barred him from working with other military publishers.

Since his new company was unwilling to defend him, and since he was unable to pay the legal bills himself, Mr. Barone resigned and lived on unemployment while looking for a new job, but found nothing. When his unemployment ran out, he took a $15-an-hour job with a landscape firm, where he whacked weeds and planted flowers.

“My whole mission was to do whatever I could to bring in some money to take care of my family and make sure nobody could take my house from me,” said Mr. Barone, who lives in Lake in the Hills, Ill.

Mr. Barone left his landscaping job this year and is now a sales manager elsewhere. And he will be free of his noncompete eventually.

Still, there is evidence that these agreements can reduce wages far beyond the terms of one job or contract. In January, Mr. Starr, from the University of Maryland, and others produced a study showing that technology workers who began their career in a state where noncompetes are strictly enforced made significantly less than their colleagues, regardless of whether or not they left.

“These things slow your ascent up the job ladder,” Mr. Starr said.

Moreover, many burn through their savings and pile up debt while searching for a job from a weakened negotiating position. Several years ago, Patricia O’Donnell, a market researcher in Philadelphia, spent 18 months unemployed after being laid off by a company whose noncompete prohibited her from working for a number of major pharmaceutical companies, thus limiting her prospects in a major local industry. She finally found a job, but only recently got clear of the bills she racked up.

“It took years to get rid of that credit-card debt,” she said.

Noncompetes damage regional economies as well. States with strict enforcement end up suffering a brain drain, by encouraging their best and smartest workers to move elsewhere for better pay.

The great counterexample, which comes up in just about every discussion of the subject, is the growth of Silicon Valley.

California law prohibits noncompete clauses, contributing to the inveterate poaching with which the state’s technology industry was founded. It can be brutal for employers, but it helps raise wages and has created a situation where any company looking to hire a bunch of engineers in a hurry, be it an established giant or a start-up, feels it should locate there.

“It’s not just that it allows employees to leave their company for another job,” said Mark A. Lemley, a professor at Stanford Law School. “It allows them to leave to start new companies.”

Recognizing this, several states have moved to curb the use of noncompetes. This includes Democratic-leaning states like Massachusetts as well as Republican-leaning ones like Utah, which last year passed a bill limiting the scope of the agreements.

Mike Schultz, the bill’s Republican sponsor, framed it with the most conservative of talking points: the right to work. “If an employer can fire anybody for any reason,” he said, “employees also need to have the right to walk.”

Mr. Bollinger, the factory worker in North Carolina, started working when he was 14, and by his senior year of high school, he was the assistant manager of a local shoe store. He didn’t like retail, so in 1982, shortly after graduating, he took a job in the textile industry.

He began in a position that entailed pulling the fabric off cardboard rolls, and worked his way up from there, one job to the next, hourly wages to a salaried position, until eventually he was the quality control manager for two plants owned by a company called TSG Finishing.

TSG is a 115-year-old, family-owned company that works with textile manufacturers and others. It doesn’t make fabrics but is an intermediary, treating them with chemicals and laminates, giving them special finishes and properties like fire resistance.

Mr. Bollinger, as quality control manager, worked with customers to make sure they got what they wanted. Still, he said, the job was about learning a general process, not absorbing any specialized knowledge.

“I don’t know how to make the goop, I just know how to apply the goop,” he said.

TSG would disagree. The company declined to comment beyond an emailed statement, but its lawsuit described Mr. Bollinger as instrumental to the company, and said he knew important details about things like pricing, proprietary processing methods and customer preferences.

In 2007, in exchange for a $3,500 bonus and a $1,300 annual raise that brought his salary to a little over $70,000, Mr. Bollinger had signed an employment agreement that included a confidentiality clause and noncompete agreement. The list of prohibited territories began with a list of states and ended with “North America.”

Then the financial crisis struck, leading to bankruptcies and layoffs across the textile industry. “I saw people get laid off that I didn’t think would ever lose their job,” Mr. Bollinger said.

His pay shriveled, and by 2013, after TSG had gone into and out of bankruptcy, he was on pace to make about $61,000, according to income statements he provided. Six miles away, however, the economic recovery was taking hold.

The assets of Premier Finishing, a TSG competitor that had also fallen into bankruptcy, were purchased by American Custom Finishing, which was owned by a chemist and entrepreneur named Gary Harris.

The two spoke, and eventually Mr. Harris offered Mr. Bollinger a job and a raise, to $75,000, a little above his pre-recession pay. Mr. Bollinger said American advised him to check his employment agreement, and a lawyer he hired said that the noncompete was probably unenforceable.

He assumed his defection wouldn’t go over well, so on the day he gave notice, while his boss considered the rival’s offer, he quietly packed up his office and loaded things like his family pictures and a framed B.B. King concert ticket into his car. It turned out to be a good idea; a few hours later, he was escorted off the property.

Two months later, he was served papers at work: TSG had sued him for violating his confidentiality and noncompete agreements, and had asked a court to remove him from his job. The suit did not allege that Mr. Bollinger had stolen anything, but said he knew so much about TSG’s business that he would “inevitably” disclose trade secrets that the company wanted to protect.

Calvin E. Murphy, a superior court judge, did not grant TSG’s wish. In a written order, Judge Murphy said, “Enforcement of the noncompete provision in the manner articulated” by TSG would effectively bar Mr. Bollinger “from seeking employment anywhere in North America in the only profession he has practiced since graduating high school.”

TSG appealed, however, and the North Carolina Court of Appeals reversed the decision. A little after that, Mr. Harris, American’s chief executive, called Mr. Bollinger at home and told him not to return to work.

“My heart was broken,” Mr. Bollinger said.

About a year after the Appeals Court decision, TSG filed an amended complaint against Mr. Bollinger and others, alleging that he had quietly continued working for American even while the injunction was in place, and asking the court to prohibit him from working there ever again.

The new complaint cited evidence, like photos of Mr. Bollinger’s wife’s car parked at American’s facility, and a phone call TSG had received from “a female who would not reveal her identity,” who said Mr. Bollinger had continued to work there. At one point, TSG hired a private investigator to look into it.

“It is regretful that a great deal of money and resources have to be spent in our court system which could be otherwise spent on employee raises or investing in new equipment to make us more competitive,” Mr. Harris said in an emailed statement.

Perhaps more important, the whole ordeal had caused a “strain” between TSG and its customers. The complaint said that in 2015 one customer had said it planned to transfer its business to American; another had asked TSG to resolve the dispute in a way that allowed Mr. Bollinger to continue at his new job.

“When a competitor has the opportunity to poach that knowledge without making the investment in research and development, it gives them an unfair advantage, which a three-judge panel agreed happened in this case,” said Jack Rosenstein, TSG’s chief executive, in an emailed statement.

As with everything else in business, the case came down to money. This past week TSG accepted a $200,000 offer of judgment from American and the other defendants, freeing Mr. Bollinger from the lawsuit. The case had gone on so long that the noncompete has lapsed, and Mr. Bollinger has found another manufacturing job elsewhere.

But the financial scars remain: Mr. Bollinger and his wife, Sandie, drained their savings to pay the legal bill. They have borrowed from friends and relatives, and racked up $50,000 in credit card bills and other debt.

Mr. Bollinger said the saddest part to him is that such a small sum of money, the $14,000 raise from American, could have started the whole dispute in the first place.

During a recent interview, he talked about his last day at TSG and the emotions of walking away from a plant where he had worked for two decades. That job, and the advancement that came with it, had given him the means to raise a family, as well as middle-class luxuries like the musical instruments in his house and the framed concert tickets he hung on his office wall.

“If all they would have said is, ‘Keith, we want to keep you, and we are going to reinstate your pay,’” he said, “I would have taken all that stuff out of my car and hung it back up in my office.”

EEOC wins on Pregnancy Case

FROM A NEWS RELEASE FROM THE EEOC, 3 MAY 2017

Brown & Brown Insurance Brokerage Firm Settles Pregnancy Discrimination Lawsuit for $100,000

Job Offer Rescinded After Company Learned of Applicant’s Pregnancy, Federal Agency Charged

ORLANDO, Fla. – Daytona Beach-based insurance brokerage firm Brown & Brown will pay $100,000 and furnish significant relief to resolve a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s suit, Brown & Brown made a written job offer to the applicant and also sent her an employment agreement for a “personal lines technical assistant” position at its Daytona Beach location and proposed employment start dates. Upon receipt of the offer letter, the applicant affirmed her interest by email and sought to ask a few questions regarding the offer. About two hours later, the applicant spoke with the department leader’s assistant and inquired about maternity benefits because she was pregnant. The assistant immediately advised the department leader of the applicant’s pregnancy and, minutes later, according to the suit, the applicant received an email from the company rescinding the job offer, stating that it “had a very urgent need to have somebody in the position long term …We appreciate you telling us beforehand.”

Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. EEOC filed suit in U.S. District Court for the Middle District of Florida, Tampa Division (EEOC v. w Brown & Brown of Florida, Inc., Case No. 6:16-cv-1326-ORL18-DAB) after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree resolving this case provides for the adoption and distribution of a policy on pregnancy discrimination, training of managers, supervisors and human resources personnel at the company’s Daytona Beach location, as well as employees at all other Brown & Brown Florida locations. The training will cover sex discrimination, including pregnancy discrimination. Brown & Brown also agreed to provide annual inform­ation to EEOC during the two-year monitoring period concerning its handling of pregnancy discrimination complaints.

“The Pregnancy Discrimination Act requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work,” said Michael Farrell, the EEOC’s Miami District director. “This includes treating pregnant employees the same as others at the hiring stage.”

EEOC Miami District Regional Attorney Robert Weisberg added, “The decision to hire should be based upon an applicant’s qualifications, not stereotypical assumptions about pregnancy, motherhood or other caretaking responsibilities.”

The Miami District Office’s jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands. Further information is available at www.eeoc.gov.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.

Hugging can create a hostile work environment

FROM LA TIMES, FEBRUARY 23

Hugging can create a hostile work environment.

In a decision Thursday, a three-judge panel of the U.S. 9th Circuit Court of Appeals revived a sexual harassment lawsuit against Yolo County Sheriff Edward G. Prieto, who was charged with hugging a female correctional officer more than 100 times over a 12-year period.

Prieto argued he also hugged male employees. If he hugged women more, his lawyers said, it was because of “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.”

But the 9th Circuit said hugging can create an abusive work environment if it is both unwelcome and pervasive.

Victoria Zetwick, the correctional officer who sued the sheriff, also charged that Prieto once kissed her when congratulating her on her marriage to another deputy.

She said she saw Prieto hug dozens of other female employees during her 12 years in the department but give male employees mere handshakes.

In defending against the suit, Yolo County said Zetwick admitted that she had hugged male co-workers occasionally.

The county also pointed to a declaration in which Zetwick described Prieto’s hugs as brief. He made no sexual comments or touched her otherwise, the county said.

Still, the court said, Zetwick argued his hugs were “chest to breast.”

A federal district judge dismissed Zetwick’s lawsuit in 2014. But the 9th Circuit said she had offered enough evidence to possibly persuade a reasonable juror that she had suffered from sexual harassment.

“She submitted evidence from which a reasonable juror could conclude that, even if Prieto also hugged men on occasion, there were `qualitative and quantitative differences’ in the hugging conduct toward the two genders,” wrote District Court Judge Mark W. Bennett, a senior judge from Iowa who was filling in on the 9th Circuit.

She said in her suit that Prieto’s conduct made it difficult for her to concentrate. She was constantly stressed and anxious, she said, and she had to resort to taking medication for sleep.

Prieto’s hugs, she argued, had sexual overtones.

A spokesman for the sheriff’s office said he could not comment on the decision while the litigation was pending.

$15 Minimum Wage In Florida

The Impact of a $15/hour Minimum Wage in Florida

From Florida Tax Watch, Jun 29, 2016

In states across the nation, minimum wage policies continue to dominate political and economic discussions. Recently, two of the nation’s largest states, New York and California, have both passed laws that will gradually raise the minimum wage in those states to $15 per hour. While these decisions have been met with support and criticism, the impacts in each state will be followed closely across the nation.

The idea of a $15 per hour minimum wage has also been discussed by state legislators in Florida. During the 2016 legislative session, Senate Bill 6 and House Bill 109 were introduced and proposed raising Florida’s minimum wage to $15 per hour starting in January of 2017.1 The bills would have replaced Florida’s existing floating minimum wage, which is currently $8.05 per hour. Florida’s minimum wage is reviewed each year, and either remains steady, or is increased to account for changes in the cost of living. While both bills died during the committee meeting process, the fight to raise Florida’s minimum wage to $15 per hour is likely to continue.2 With this in mind, it is important that taxpayers and policymakers understand how an increase in the minimum wage to $15 per hour would impact businesses, the job market, and the everyday lives of Florida residents.

Businesses

Currently, businesses in Florida employ approximately 183,000 minimum wage workers, roughly 2 percent of those employed throughout the state. While minimum wage workers are employed in a variety of fields, evidence points to the fact that a majority work in industries with small profit margins, such as restaurants and retail.3

The minimum wage in Florida has increased steadily over the past decade,4 but some businesses, such as JM Family Enterprises, have chosen to implement company-wide minimum wages that are above the state and federal guidelines.5 While these companies have had the ability to succesfully implement increases on their own, the vast majority of businesses may not be able to absorb an increase in the minimum wage to $15 per hour.

Using the most recent available data from the U.S. Bureau of Labor and Statistics, Florida TaxWatch estimated the overall labor costs of businesses employing minimum wage workers in the state of Florida. A conservative estimate shows that with an abrupt increase to $15 per hour Florida businesses could expect to see a nearly $2 billion ($1,834,618,188) increase in the cost of minimum wage labor. This estimate only accounts for an increase in the cost of those workers that are currently making minimum wage ($8.05 per hour); however, an increase in the minimum wage to $15 per hour would raise the cost of labor of all those employees making less than $15 per hour. Because the median wage in Florida is $15.29 per hour,6 the proposed increase would raise the cost of nearly half of Florida’s workforce, significantly impacting how businesses in Florida operate.

The Job Market
This Florida TaxWatch Economic Commentary is also available in PDF format:
“The Impact of a $15/hour Minimum Wage in Florida”

Such a dramatic increase in the cost of labor would force companies to adapt to a new business climate in the state, and the results could bring about unintended consequences that negatively impact the job market in Florida.

Recently, Seattle, Washington enacted a plan to steadily increase their minimum wage to $15 per hour.7 The affluent city with a relatively low unemployment rate seemed to be well-suited to absorb the higher labor costs that stem from an increase in the wage floor; however, data show that the city has experienced an increase in the unemployment rate and in the number of those unemployed since the implementation of a $15 minimum wage plan.8 Since April of 2015 (when the city began to phase in the minimum wage increase), Seattle has seen unemployment rise from 3.3 to 4.4 percent, and the number of those unemployed has risen by nearly 5,000 individuals.9 Many of the job losses can be attributed to businesses that have relocated, shut down, cut staff hours, or have put a freeze on hiring.10 Going forward, many business owners have raised concerns regarding their ability to adapt to the new minimum wage climate, understanding that failing to do so could result in having to close their businesses.11

In California, where they have also enacted a plan to raise their minimum wage to $15 per hour, the change in minimum wage laws has forced businesses to contemplate relocation in order to remain profitable. Fred Donnelly, president of commercial airplane parts manufacturer, California Composites, announced that he intended to move his company to Fort Worth, Texas. Donnelly claimed the increase in the minimum wage left him no choice but to move his company, and the primary factor in the decision came down to the fact that California Composites is already locked into long term contracts with set prices. With the increase in California’s minimum wage, Donnelly fears his company would fail to stay profitable if it were to stay in the state.12

Increasing the cost of labor also has companies looking for ways to adapt by automating more of their day-to-day functions. Businesses have already begun installing self-checkout stations that allow multiple checkouts to be overseen by one employee, cutting down on the number of cashiers that are needed;13 however, as wage floors continue to rise, companies will find it cost-effective to automate even more operations. Companies are already looking into various automated technologies that work in fields of customer service, order processes, and even cooking and preparing food at restaurants.14, 15 A significant increase in automation due to rising labor costs could cut down on the number of available jobs for low-skilled individuals, leaving many worse-off than they currently are.

1 The Florida Senate. Senate Bill 6. 2016.
2 The Ledger. Battle for $15 minimum wage coming to Florida. 17 April 2016.
3 Manhattan Institute for Policy Research. Issue Brief. July 2015.
4 Florida Department of Economic Opportunity. Florida Minimum Wage History 2000-2013.
5 Sun Sentinel. JM Family raises minimum wage to $16 an hour. 5 August 2015.
6 U.S. Bureau of Labor Statistics. Occupational Employment and Wage Estimates Florida. May 2015.
7 Office of the Mayor of Seattle. $15 Minimum Wage.
8 U.S. Bureau of Labor Statistics. Local Area Unemployment Statistics. May 2016.
9 U.S. Bureau of Labor Statistics. Local Area Unemployment Statistics. May 2016 *Data set used from April of 2015 to February of 2016.
10 NPR. Seattle Restaurants Scramble To Pay A Higher Minimum Wage. 9 May 2015.
11 NPR. Seattle Restaurants Scramble To Pay A Higher Minimum Wage. 9 May 2015.
12 89.3KPCC. Ahead of $15 minimum wage, 1 company leaves California for Texas. 25 April 2016.
13 Investor’s Business Daily. Wendy’s Serves Up Big Kiosk Expansion As Wage Hikes Hit Fast Food. 11 May 2016.
14 Business Insider. Here’s The Burger-Flipping Robot That Could Put Fast-Food Workers Out Of A Job. 11 April 2014.
15 Brookings. Rising minimum wages make automation more cost-effective. 30 September 2015.
The Economy and Everyday Lives of Consumers

Increasing the cost of labor, and thus the cost of operations, will force businesses to adapt. While this could include reducing staff hours, closing shop, or relocating, it will likely also lead to price increases for customers.

One example of labor costs being transferred to consumers can be seen in San Francisco, California. After the Bay Area enacted a plan to increase the city’s minimum wage to $15 per hour, fast food giant Chipotle responded by increasing the cost of menu items 10-14 percent in all the area’s restaurants.16 In response to the increase in prices, Chris Arnold, Chipotle’s Communications Director, stated that the increases were done “in part to offset higher labor costs.”17 The price increases are not just affecting burrito lovers. Data from the U.S. Bureau of Labor Statistics show that prices for dining out in San Francisco, California rose 4.8 percent over a 12 month period beginning in February of 2015,18 which is significantly higher than the 2.6 percent increase observed on the national level during the same period.19

With increases in the costs of goods and services, consumers are likely to react in a few different ways. For one, consumers can choose to do business in neighboring states that are not affected by high wage floors and therefore do not have to increase the cost of their products.20 In turn, local businesses that are not able to match the lower prices of their neighboring competitors would be at risk of losing customers. Secondly, consumers may choose to buy fewer goods in the market place due to higher prices,21 forcing businesses to close. If this were to happen, it could create a snowball effect of shrinking the market, therefore lowering the competition among businesses.

Conclusion

With many cities and states, including Florida, considering an increase in their minimum wage to $15 per hour, it is vital that taxpayers and policymakers understand the possible effects such an increase can have on the states’ businesses, job market, and economy. Early evidence has shown that even some of the most affluent areas in the U.S. have felt some negative effects, including an increase in unemployment and prices, after raising their wage floors. In a state like Florida, where the median wage is close to $15, an immediate increase in the minimum wage to $15 per hour would likely have negative effects on the state’s economy and job market. It is important that policymakers in Florida closely follow how businesses and economies in states like New York and California acclimate to increases in the minimum wage, and use the data to help make decisions regarding Florida’s minimum wage going forward.

16 American Enterprise Institute. Who’d a-thunk it? SF minimum wage increased 14% and local Chipotles just raised prices by 10-14%. 6 July 2015.
17 Entrepreneur. Chipotle Raises Prices in San Francisco After Minimum Wage Hike. 9 July 2015.
18 U.S. Bureau of Labor Statistics. Consumer Price Index, San Francisco Area. February 2016.
19 U.S. Bureau of Labor Statistics. CPI Detailed Report. February 2016.
20 Fortune. Seattle’s min wage is America’s highest, but here’s the downside. 6 June 2014.
21 NPR. Seattle Restaurants Scramble To Pay A Higher Minimum Wage. 9 May 2015.

 

Aribitration in wrongful termination

FROM THE NY TIMES, 15 MAY 2016

Tara Zoumer thought she had found her dream job when she was hired at WeWork, a $16 billion start-up that rents office space to young entrepreneurs. The walls were adorned with Pop Art. Neon light fixtures encouraged employees to “Hustle harder,” and there was beer on tap.

“It was like walking onto a set of a movie,” Ms. Zoumer said.

But shortly after she became an associate community manager in WeWork’s office in Berkeley, Calif., reality set in. Ms. Zoumer said she was feeling pinched because her annual salary was only $42,000, a sum that, on some weeks, left her without money to ride the subway.

She said she thought many of her duties — leading tours for prospective tenants, tidying up, answering phones and changing the kegs — were more suited to an hourly wage with a possibility for overtime.

Ms. Zoumer tried to enlist colleagues to file what she hoped would be a class-action lawsuit to fight for overtime pay. But the company had instituted a policy that could force employees to ultimately resolve disputes through arbitration instead of the courts, which essentially shut down Ms. Zoumer’s lawsuit, since arbitration bars individuals from joining in a class action.

When Ms. Zoumer refused to sign the new policy, she was fired.

As once-plucky start-ups like WeWork grow — the company’s work force has swelled to 1,500 from 300 a year ago — they are taking a page from the playbook of big corporations, which are increasingly using arbitration to thwart employees from bringing any meaningful legal challenge in court, an investigation by The New York Times found last fall.

Uber and Lyft, the ride-hailing services, make their drivers sign an arbitration clause. Square, the mobile payment processor, also requires that employees agree to bring disputes to arbitration. In advice to start-ups, Brotman Law, a tax firm in San Diego, promotes the benefits of arbitration for “companies doing business over the Internet,” emphasizing that it “can save significant costs.”

Amazon and Google also use arbitration to resolve disputes with customers.

Far from burying its arbitration clause in its employment contracts, WeWork is proud of its policy. The company’s top executives said they thought that by adopting an arbitration clause as part of a broader dispute resolution program, they were staying true to their principles, which prize all levels of employees as members of a single community. WeWork says its employees are eligible for bonuses and equity in the company in addition to their salaries.

Tara Zoumer, who was fired from WeWork for refusing to sign an arbitration clause. Ms. Zoumer earned a salary of $42,000, but she said she felt her duties were more suited to an hourly wage with the possibility of overtime. She tried to enlist her co-workers in what she hoped would be a class-action suit to gain overtime pay. Credit Jason Henry for The New York Times
For start-ups — many of which began in Silicon Valley — the clauses can seem to conflict with professed goals of upending business as usual and being open with employees. Arbitration, by its very nature, is a secretive process that is often lopsided in favor of the employer. That secrecy, federal labor officials said, can allow widespread problems to persist because the process bars employees from sharing their experiences with others who might be in similar positions.

“They give their young workers Ping-Pong tables and take away their constitutional rights,” said Cliff Palefsky, an employment and civil rights lawyer in San Francisco.

This month, the Consumer Financial Protection Bureau proposed a rule that would limit financial companies from using arbitration to prevent their customers from filing class-action lawsuits. But the rule does not apply to arbitration used in employment disputes.

As Silicon Valley companies grow from small start-ups into major employers, their labor practices are coming into focus. Despite the popular image that the industry is predominantly made up of nerdy millionaires, many of these growing companies depend increasingly on lower-paid employees.

And with some technology companies now working harder to raise money, there are growing pressures on these companies from investors to cut costs — pressures that can fall disproportionately on the workers at the lower rungs.

At WeWork, Ms. Berrent said, arbitration is part of a multistep process to resolve disputes. The company adopted the policy after months of discussion about how to deal most fairly with complaints.

At the outset of the process, WeWork requires employees to raise any complaints with their managers. If that does not work, the employee and WeWork must try mediation. Only if that fails does the issue go before an arbitrator, whose decision is binding.

Ms. Berrent said this process was in keeping with the company’s values, settling problems “through open collaboration” rather than the courts. She confirmed that Ms. Zoumer was fired for not signing the arbitration clause.

She said the employees who hold the job that Ms. Zoumer used to have were the “soul” of the company and its “brand ambassadors.” She said they performed tasks that were far from menial and were not suited to an hourly wage.

Ms. Berrent also notes that while lawsuits are both costly for the employee and confrontational, the company pays for arbitration no matter who wins.

Unprotected by an arbitration clause, companies can face litigation that could result in huge settlements. The drug company Novartis paid $175 million to settle a class-action suit brought by female employees over promotions and pay. And more than money can be at stake; Nike had to overhaul its business practices after African-American employees sued over discrimination.

At large corporations, many employees have come to expect the clauses as standard. But those working at smaller firms that claimed to treat their employees like family tend to be surprised when they collide with one.

When Kevin Ziober, a Navy reservist in Costa Mesa, Calif., first joined BLB Resources, which manages foreclosed properties, the company was just beginning; Mr. Ziober was the 18th person hired.

Mr. Ziober had already been at the company for several months when he was asked to sign the arbitration policy in January 2011. He did so without a second thought.

It was a decision he would regret. In the fall of 2012, he informed BLB Resources that he was being deployed to Afghanistan. On his last day, the company threw him a farewell party, complete with a cake shaped like an American flag.

“I was on Cloud 9,” Mr. Ziober said, recalling how he phoned his family to tell them about the party.

That afternoon, as Mr. Ziober said he was packing up his cubicle, he was called into the human resources office and was “summarily” fired, according to his legal appeal.

The reason for his termination, the company said, was that he was not being included in a federal contract that the company was applying for.

 

In 2014, after returning from Afghanistan, he sued BLB Resources for violating a federal law, known informally as Userra, that protects the jobs of service members while they are deployed. A California judge ruled that he would have to take his claim to arbitration.

Mr. Ziober’s lawyer, Peter Romer-Friedman, has appealed the case, arguing that Userra preserves the rights of service members to go to court.

BLB said in a statement that “the company is extremely disappointed about Mr. Ziober’s allegations and denies them wholeheartedly.”

With their appeal, Mr. Ziober has waded into an intense battle playing out across the country. In Washington, a group of bipartisan lawmakers introduced a bill in 2014 that would exempt service members from having to take claims of wrongful auto repossession or improper debt collection to arbitration. An almost identical bill was quashed after intense lobbying by big banks and credit card companies, never making it out of committee. A bill in California that would have prevented companies from requiring employees to sign arbitration clauses suffered a similar fate when Gov. Jerry Brown vetoed it last year.

The legislative skirmishes point to just how valuable arbitration has become to companies and just how far they will go to defend it.

Despite WeWork’s arbitration requirement, Ms. Zoumer decided to sue the company on her own, hoping she would prevail in overturning the clause. Ms. Zoumer’s lawyer, Ramsey Hanafi, filed her case in December over wrongful termination and unfair labor practices, and Boies, Schiller & Flexner, a top corporate defense firm, is representing WeWork.

Ms. Zoumer, 31, said she knew she was taking a risk when she challenged WeWork over arbitration. She told the company she needed at least a week to review the policy before deciding whether to sign it. In an email to colleagues, she encouraged them to do the same, citing The Times’s investigation into arbitration.

Ms. Berrent said Ms. Zoumer was the only employee who refused to sign other than two employees who had planned to leave the company anyway. Ultimately, no other employees joined Ms. Zoumer’s lawsuit.

“Younger people don’t want to pick fights, but we are losing our rights,” Ms. Zoumer said.

Question isn’t taboo in the workplace anymore

FROM BLOOMBERG NEWS, 3 MARCH 2016

Are you gay? The question isn’t taboo in the workplace anymore, for better or worse.

JPMorgan Chase & Co.’s human resources department is asking employees for the first time this year if they’d like to disclose their sexual orientation or gender identity. Companies including Facebook Inc., Deutsche Bank AG, IBM Corp. and AT&T Inc. also collect the data. By one measure, nearly half of the largest U.S. businesses — under pressure to be inclusive as they compete for talent — seek to gather information on who on the payroll is homosexual, bisexual or transgender so better benefit plans can be designed and managers can consider diversity enhancing promotions.

“Collecting the data is not weird now,” says Gary Gates, a retired demographer from UCLA Law School’s Charles R. Williams Institute. With the U.S. Supreme Court having legalized same-sex marriage and the military abandoning its don’t ask, don’t tell policy, “there’s much less fear and stigma.”

That may be true, but there’s enough peril that Chevron Corp. decided not to pose the question after a review identified data-security risks. Many that have studied the issue opted not to proceed, says Michelle Phillips, a lawyer with Jackson Lewis in White Plains, New York, who advises companies on employment law. Phillips says one worry is that a rogue employee might leak the information about a colleague to do him or her harm.

‘Totally Contrary’
There are a host of concerns — including that it’s legal in 28 states, from Montana to Virginia, to discriminate against anyone who isn’t heterosexual. The issue is more urgent for people who work in or travel for work to the more than 76 countries where homosexuality is a crime. Companies are careful: American Express Co., which has been collecting sexual-orientation specifics in the U.S. for 10 years, is adding a question about gender identify only in countries where that’s legal, says Chris Meyrick, the chief diversity officer. Businesses that do ask the questions make it clear it’s voluntarily to answer.

For former Ford Motor Co. Chief Financial Officer Allan Gilmour, who came out as gay in the 90s after twice being passed over for chief executive officer, it’s a pleasant surprise that employers are interested. “I never would guessed 20 years ago that questions of this kind would be asked,” he says. Back then, it was best to operate as though “this is nobody’s business except mine.”

Tom Barefoot, a strategic planning manager and senior vice president at Wells Fargo & Co. in Charlotte, North Carolina, was one of the employees who encouraged the bank to adopt the self-identify policy in 2011. “When I finally clicked that one field on my sexual orientation, it was just like time had stopped,” he says. “I’m actually putting into our HR system that I’m gay? It felt really good.”

JPMorgan began posing the question in 2007 in anonymous surveys, and LGBT workers approached management about making it part of the human resources system. They wanted “to make themselves visible,” says Therese Bechet Blake, head of diversity for the corporate sector. But at EY, “there was some outrage” when after five years of the anonymous approach the consulting firm in 2014 put the query on human resources paperwork, says Chris Crespo, the inclusiveness director.
The most concerned were those who travel to countries where their lifestyle is a crime, she says. “There were very mixed feelings.”

Michael Elliott, an executive director in Dallas for EY’s consulting practice, says his initial worry was that “we didn’t make people feel like we were forcing them out.” And Elliot says that when he checked the not-straight box last year it was anti-climactic.

Few Objections
“It totally amazes me that the mindset has started to shift,” he says. “As little as 10 years ago, at smaller companies, you could either be easily fired or they were following the military idea of don’t ask, don’t tell.”

About 2.1 percent of EY workers reported being LGBT in the anonymous surveys. The HR data collected is too new for comparison, Crespo says, though EY estimates 2.1 is half the actual percentage. At EY and many other companies, she says, about 4 percent of people prefer not to answer, saying they don’t trust the question or consider it inappropriate.

“Voluntary self-identification is something that seems innocuous at first blush, and generally could be a good idea, but it’s actually much more complicated,” says Phillips, the lawyer. “No question, everything being equal, it’s better to collect than not collect. The problem is that everything isn’t equal.”