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This chapter begins by explaining the pleading requirements of the Federal Rules of Civil Procedure. Next, this chapter explores how Supreme Court caselaw has shaped those rules, emphasizing the Court’s recent decisions in Twombly and Iqbal. Then, this chapter outlines the results of numerous research studies that examine the current state of employment discrimination in our society. Building on this research, this book proposes a unified analytical framework for pleading intent in employment discrimination claims brought under Title VII. The chapter then explains how the proposed pleading model comports with the federal rules, as interpreted by Twombly and Iqbal. The chapter further explores the best approach to pleading claims arising in the technology-sector context.
This chapter explores the prevalence of gender discrimination in the technology sector. It examines why there is such widespread sex discrimination in this field, providing several markers that explain its occurrence, and it looks at specific incidents where harassment has occurred. This chapter proposes a number of different avenues that could be explored to help resolve this pervasive problem, discussing several ways to begin recognizing and addressing these abusive workplace environments. While not exhaustive, these suggestions provide several possible solutions to the present problem of hostile work environments in the technology industry. This chapter also explores the very important issue of sexual assault in the technology sector. And, this chapter briefly looks at how customers can be victimized by the existing culture in this industry. It further explores the potential liability companies and employers are exposed to in the face of this situation.
This chapter argues that the classification of workers as independent contractors or employees should be shaped by an overarching question: How much flexibility do individuals have in determining the time, place, price, manner, and frequency of their work? Those who have more control of these variables are more independent than those who must conform to a business owner’s schedule. This approach provides an objective basis for resolving classification disputes, particularly those that arise in the context of the technology-based economy. By minimizing legal uncertainty, a focus on worker flexibility would ensure both that workers receive appropriate protections under existing law and that companies are able to innovate without fear of unknown liabilities.
This book has focused on the primary ways that we often think about the employment relationship in the virtual context: the definition of who is an employee, the way workers organize together in an effort to negotiate with an employer, and some of the more recent issues of workplace harassment that have come to light. Similarly, this text has examined the more basic questions with respect to the litigation of technology-sector workplace claims –coverage, pleading, and aggregation.
This chapter identifies the need for more cooperation between workers and management in light of the steep national decline in unionization. It examines how the lack of formal collective bargaining has directly impacted workers in the technology sector. It further explores the nontraditional efforts at worker organization, including the Freelancer’s Union, Working America, and the Uber Guild. This chapter also looks at workplace participation groups and discusses their role in the employment setting and explains the potential advantages and disadvantages of quasi-unions in the technology sector, exploring how the alt-labor strategy can fit within the contours of the modern economy. It concludes by examining what quasi-unions should look like in the modern economy and it describes the three primary foms such groups could assume.
This chapter sets forth the guidelines for systemic litigation. This chapter examines the Supreme Court’s decision Wal-Mart Stores, Inc. v. Dukes, explaining how the Court has redefined the standard for commonality. Next, this chapter examines the Fair Labor Standards Act – which creates the federal requirements for wage/hour claims. This chapter then examines the federal district court decision in O’Connor v. Uber, which permitted the aggregation of a class on the worker classification issue. This chapter further examines the potential harm of the O’Connor analysis and the need for more clarity in the technology sector. This chapter proposes a framework for analyzing whether class action claims should be permitted to proceed in technology-based cases. Finally, this chapter explores how Federal Rule of Civil Procedure 23(c)(4) – issue class certification – can impact the analysis of class action cases.
By examining some of the more critical and emerging issues facing this industry – defining employment, litigating claims, aggregating cases, and preventing harassment – this book takes on some of the more high-profile instances where the law has not kept pace in this growing area of virtual work.
The recent pandemic has clarified the overwhelming connection between the workplace and technology. With thousands of employees suddenly forced to work at home, a large segment of the workforce quickly received crash courses in videoconferencing and other technologies, and society as a whole took a step back to redefine what employment actually means. The virtual workplace is the blending of brick-and-mortar physical places of business with the advanced technologies that now make it possible for workers to perform their duties outside of the office. Trying to regulate in this area requires the application of decades old employment laws to a context never even contemplated by the legislatures that wrote those rules. This book explores the emerging issues of virtual work—defining employment, litigating claims, aggregating cases, unionizing workers, and preventing harassment—and provides clarity to these areas, synthesizing the current case law, statutory rules, and academic literature to provide guidance to workers and companies operating in the technology sector.