America’s “Tired,” “Poor,” “Huddled Masses” Are Yearning to Work: USCIS Shortens Wait Time for Refugees Seeking Work Authorization

By: Diego Saenz

On March 12, 2024, U.S. Citizenship and Immigration Services (hereinafter “USCIS”) announced a new streamlined process for refugees seeking work authorization after having been admitted into the United States.[1]  This new process, now fully automated to help mitigate some of the delays incurred in the prior paper-based process, will apply to all individuals admitted into the United States as a refugee after December 10, 2023 and reduce wait times for Employment Authorization Documents (hereinafter, “EAD”) from several months to 30 days.[2]  Refugees will no longer be required to complete an application for an EAD themselves, but rather USCIS will digitally create a Form I-765, Application for Work Authorization, for arriving refugees and begin adjudicating their application upon their admission to the United States.[3]

Prior to 2020, many asylum applicants were eligible to receive their EADs 180 days after submission of their asylum application.[4]  However, in June 2020, the Department of Homeland Security promulgated regulations prohibiting applicants from receiving EADs for 365 days after filing their asylum applications and banning asylum seekers who did not enter through a port of entry from receiving work authorization.[5]  This was halted by a preliminary injunction challenging the regulation in September 2020,[6] and the 180-day time limit was again the standard up until the March 12^th announcement.[7]

  Refugees are similar, although slightly different, than asylees.[8]  Refugees are people outside of their country of nationality who are unable or unwilling to return “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[9]  This is distinguished from asylees, who are people that are either already physically present in the United States or seeking asylum at a port of entry and that meet the definition of a refugee.[10] 

Refugee protection first gained international attention in the wake of World War II; millions of people were displaced across Europe and countries were reconciling with the fact that many of the refugees they had rejected in the preceding decade had perished in the Holocaust.[11]  As a result, the basic principle of the 1951 Geneva Convention Relating to the Status of Refugees was non-refoulement – “the duty to not return people to persecution on account of nationality, race, religion, political opinion, or membership in a particular social group.”[12]  This 1951 treaty set forth the definition of the term refugee and laid out the prohibition against refoulement.[13]  Despite the United States not ratifying the 1951 treaty, it did become a party to the 1967 Protocol Relating to the Status of Refugees, and thus agreed to the protections and refugee definition laid out in the 1951 treaty.[14]  The Refugee Act of 1980 further authorized the U.S. government to discretionarily grant asylum status to applicants that meet the definition of a refugee.[15]

Work authorization is crucial to ensuring that asylum seekers do not fall prey to workplace exploitation and injustice, as they are a particularly vulnerable group.[16]  Furthermore,  despite certain rhetoric used to rebut those correctly stating that there is a legal right to seek asylum[17] — popularized by the former Acting Director of Immigration and Customs Enforcement Thomas Homan telling Rep. Alexandria Ocasio-Cortez at a Congressional hearing in July 2019 that if migrants “want to seek asylum, go through the port of entry, do it the legal way”[18] — this callously overlooks the realities faced by those seeking asylum at the U.S.-Mexico border.[19]  The very nature of asylum claims means applicants are fleeing their country of nationality because of a credible fear that they’ll face some extreme mistreatment threatening their life or freedom,[20]  yet backlogs in both immigration courts and asylum offices have caused applicants to wait years for their claims to be adjudicated.[21]  And CBP One, the smartphone app intended to become “the main gateway to the American asylum system at the southern border,”[22] has been fraught with delays and controversy since its inception, and immigrant rights groups are raising concerns regarding its expansion.[23]

Given the adversity that those seeking asylum currently face, USCIS’s recent announcement of streamlined EADs for asylum applicants means they can preserve some semblance of dignity while pursuing their claims.[24]  This new process will also see USCIS electronically provide the Social Security Administration with the information necessary so that refugees can be assigned a Social Security number and mailed a Social Security card.[25]  Thus, even “USCIS recognizes that documents such as an EAD and Social Security card are critical to a newly arrived refugee’s ability to integrate into the United States.”.[26] 

---

[1] See USCIS Streamlines Process for Refugee Employment Authorization Documents, U.S. Citizenship and Immigr. Services (Mar. 12, 2024), https://www.uscis.gov/newsroom/alerts/uscis-streamlines-process-for-refugee-employment-authorization-documents (hereinafter, “USCIS Streamlines EADs”); see also Refugees, U.S. Citizenship and Immigr. Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees (last updated Mar. 12, 2024) (defining a refugee as someone who “[i]s located outside of the United States,” “[i]s of special humanitarian concern to the United States,” “[d]emonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group,” “[i]s not firmly resettled in another country, and “[i]s admissible to the United States.”).

[2] See USCIS Streamlines EADs, supra note 1.

[3] See id.; see also Employment Authorization Document, U.S. Citizenship and Immigr. Services, https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document (last updated Mar. 12, 2024) (explaining what is currently needed to apply for an EAD, which includes having the applicant complete and submit a Form I-765).

[4] See T. Alexander Aleinikoff et al., supra note 10 at 735 (noting that may applicants would often receive EADs while their asylum applications were still pending).

[5] See id. at 735-36; see also Asylum Application, Interview, and Employment for Applicants, 85 Fed. Reg. 38532 (2020).

[6] See Casa de Maryland v. Wolf, 2020 WL 5500165 (D. Md. Sept. 11, 2020).

[7] See generally Asylum, U.S. Citizenship and Immigr. Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum#:~:text=To%20apply%20for%20an%20Employment,you%20file%20your%20asylum%20application. (last updated Feb. 12, 2024) (“You are not eligible to receive an EAD until your asylum application has been pending for at least another 30 days, for a total of 180 days, commonly referred to as the 180-Day Asylum EAD Clock.”); T. Alexander Aleinikoff et al., supra note 10 at 735-36 (discussing the circumstances of the changes to the work authorization timeline in 2020).

[8] See generally Office of Homeland Security Statistics, Refugees and Asylees Annual Flow Report, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/ohss/topics/immigration/refugees-asylees-afr#:~:text=An%20asylee%20is%20a%20person,at%20a%20port%20of%20entry (last updated Feb. 26, 2024) (containing annual reports from refugees and asylees going back to 2004).

[9] Id.

[10] Id.

[11] See Hiroshi Motomura, The New Migration Law: Migrants, Refugees, and Citizens in an Anxious Age, 105 Cornell L. Rev. 457, 480; T. Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy 729 (9^th ed. 2021).

[12] Id.

[13] See Convention Relating to the Status of Refugees art. 1, July 28, 1951, 189 U.N.T.S. 137 (defining a refugee as anyone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”).

[14] See T. Alexander Aleinikoff et al., supra note 7 at 734; see also Protocol Relating to the Status of Refugees art. 1, Jan. 31, 1967, 606 U.N.T.S. 267.

[15] See T. Alexander Aleinikoff et al., supra note 10 at 734; see also 8 U.S.C. §1158.

[16] See e.g., “A Work Permit Is Extremely Important For Us Migrants” – Jonathan And Miriam Share, Kino Border Initiative (Oct. 17, 2023), https://www.kinoborderinitiative.org/a-work-permit-is-extremely-important-for-us-migrants-jonathan-and-miriam-share/ (hereinafter, “KINO”) (discussing how after one noncitizen was injured at work, her employer, knowing her immigration status and that she was not on the payroll, offered no support or compensation.); see also see also At-Risk Populations, U.S. Dep’t of State, https://www.state.gov/other-policy-issues/at-risk-populations/#:~:text=Women%20and%20Girls,and%20abuse%20perpetrated%20against%20them. (last visited April 1, 2024) (explaining that “[a]ll forcibly displaced and stateless populations are considered vulnerable” and discussing certain groups amongst refugees that are most at-risk).

[17] See generally @MatthewSHarriso, X (Mar. 29, 2024, 11:02 AM),  https://x.com/MatthewSHarriso/status/1773727382702072085?s=20 (“The only LEGAL way to request asylum is to enter through a port of entry. As a lawmaker, you should know this, but you’re an actor.”); @TheSaltyNCO, X (Mar. 29, 2024, 12:39 AM), https://x.com/TheSaltyNCO/status/1773570535626060243?s=20 (“Seeking asylum is absolutely legal when done THE LEGAL WAY THROUGH A PORT OF ENTRY!!… or are you truly too stupid to understand that..”); @TomHauser55, X (Mar. 29, 2024, 12:01 PM), https://x.com/TomHauser55/status/1773742404207509748?s=20 (“True but going through the port of entry is the legal way, not swimming across a river.”); @Steven27x90, X (Mar. 28, 2024, 2:55 PM), https://x.com/Steven27x90/status/1773423754762166507?s=20 (“They’re illegal. Deport them and make them come through the port of entry the legal way.”).

[18] The Trump Administration’s Child Separation Policy: Substantiated Allegations of Mistreatment, 116^th Cong. 57 (2019) (statement of Thomas D. Homan, Former Acting Director, U.S. Immigration and Customs

Enforcement).

[19] See e.g., T. Alexander Aleinikoff et al., supra note 10 at 73-76 (discussing the Department of Homeland Security’s efforts to both limit the amount of people that could seek asylum at ports of entry and the indefinite suspension of asylum applications due to COVID-19, as well as the significant back logs that currently exist for those seeking asylum); see generally Human Rights First Details Violence Against Asylum Seekers at U.S. Border, Human Rights First (Nov. 29, 2023), https://humanrightsfirst.org/library/human-rights-first-details-violence-against-asylum-seekers-at-u-s-border/ (explaining there have been “over 1,300 reports of torture, kidnapping, rape, extortion, and other violent attacks on asylum seekers and migrants stranded in Mexico” since May 2023).

[20] See generally T. Alexander Aleinikoff et al., supra note 10 at 748-49 (discussing that “the Attorney General may grant asylum in the United States to an applicant who satisfies the refugee definition provided in INA § 101(a)(42): an individual who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” and that such persecution involves “physical violence or imprisonment, and it may involve severe economic or psychological harm. Sometimes persecution is visible in a pattern of injury and harassment, while other times one severe injury is sufficient. Judicial opinions examining this concept are replete with fact-specific case-by-case analyses.”).

[21] See id. at 736 (discussing the backlogs as well as how “EOIR reported more than one million pending cases (of all types, with a substantial percentage presenting asylum issues) at the end of FY 2019. That same year EOIR received 537,000 new cases, and completed 276,000.”).

[22] Camilo Montoya-Galvez, Migrants in Mexico Have Used CBP One App 64 million Times to Request Entry into U.S., CBS News (Feb. 12, 2024, 5:36 PM), https://www.cbsnews.com/news/immigration-cbp-one-app-migrants-mexico-64-million/ (explaining that CBP one is intended to streamline appointments for asylees with Customs and Border Protection so that they can enter through ports of entry to proceed with their asylum claims).

[23] See generally Kate Morrissey, U.S. Border Officials Have Been Turning Asylum Seekers Away at
Ports of Entry Despite New Rules, The San Diego Union-Tribune (May 20, 2023),  https://www.sandiegouniontribune.com/news/immigration/story/2023-05-20/border-asylum-seekers-turn-backs-ports (discussing how those seeking asylum at ports of entry who had not scheduled appointments using CBP One, despite there being specific new rules to determine a potential asylees eligibility, were being out-right turned away); Melissa del Bosque, Facial Recognition Bias Frustrates Black Asylum Applicants to US, Advocates Say, The Guardian (Feb. 8, 2023) (discussing how facial recognition bias prevented many black people from filing asylum claims on CBP One); Rebecca Heilweil and Caroline Nihill, CBP Leaning into Biometrics on Controversial App, Raising Concerns from Immigrant Rights Advocates, FEDSCOOP (Mar. 7, 2024), https://fedscoop.com/cbp-one-app-biometrics-immigrants-rights/ (“We are concerned about the ever-expanding surveillance capabilities and requirements that CBP is adding to CBP One. With little notice or oversight, CBP has expanded biometric and geolocation surveillance to individuals not even in the U.S.”).

[24] See KINO, supra note 16 (highlighting two asylum applicant’s stories and how they display “the importance of allowing asylum seekers to receive work permits as a means of promoting migration with dignity.”).

[25] See USCIS Streamlines EADs, supra note 1.

[26] Id.

Cannabis in the Workplace? Georgia Employers Confused Over Testing for Marijuana Use

By: Peter J. Galgano

Federally, marijuana is still classified as a prohibited Schedule I substance under the Controlled Substance Act.[1] This means marijuana is federally not accepted for medical or recreational use.[2] However, on the state level, many states have decriminalized marijuana, allowing it for either medicinal or full recreational purposes.[3] Some states have even banned employers from inquiring about a job applicant’s history with marijuana.[4] With an evolving legal landscape and a societal destigmatization of cannabis, employers are trying to grasp how to tread through unprecedented waters.[5] The most recent state to entrench themselves in this broad legal spectrum is Georgia, the Peach State.[6] 

Georgia has been one of the most restrictive or conservative states when it comes to legalizing marijuana.[7] Georgia has failed to legalize marijuana use for recreational or medicinal purposes.[8] The state of Georgia only permits the use of low-THC marijuana oil.[9] Yet, across the state of Georgia, employers are muddled over whether they still can and should enforce employees and applicants to cannabis drug tests.[10] In March 2024, the Georgia General Assembly raised the age to buy legal marijuana to those twenty-one years or older.[11] The bill passed almost unanimously and awaits the signature of Governor Brian Kemp of Georgia.[12]  This comes after a 2023 Georgia Appellate decision that ruled Delta-8 and Delta-10 THC products are not controlled substances under Georgia law.[13]  However, Delta-9 THC products are off market and unregulated in the Georgia.[14]  Marijuana use and production has become prevalent in Georgia but employers are confused over what is considered acceptable cannabis use.[15]

An issue is many Georgia residents use unregulated marijuana products in which they believe are legal.[16] This can cause a Georgia employee to fail a drug test for marijuana thinking that they were using a lawful product.[17] Georgia law permits employers to drug test if they want to, and it does not limit the method or means.[18] Generally, you can be fired for failing a drug test in Georgia with a few exceptions such as having a valid prescription for medical marijuana.[19] Employers are finding themselves at a crossroads when it comes to administering drug tests for marijuana due to Georgia’s inconsistent policies.[20] The divide between whether employers continue a drug-testing scheme will be based on the nature of the work or an employee’s position.[21] Confusion over THC oil percentages and determining what is legal has caused nothing but stress for Georgia employers.[22]

Georgia has a voluntary drug testing law that is not required, but if an employer chooses to comply, they can qualify for a worker’s compensation premium discount.[23] This premium discount requires drug testing for marijuana.[24] An employer is not required to allow the use of marijuana on or off the job and under law can impose zero-tolerance policies.[25] An employer has full discretion on whether to impose strict cannabis policies in the workplace.[26]

In conclusion, the state of Georgia should legalize marijuana in order to alleviate the stresses of employers.[27] Georgia employers are faced with the challenge of determining compliance, choosing which employees are subject to drug tests, or dealing with the burden of mandating drug testing programs for marijuana in general.[28]

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[1] See About Cannabis Policy, APIS, https://alcoholpolicy.niaaa.nih.gov/about/about-cannabis-policy (last visited Apr. 1, 2024).

[2] See id.

[3] See Gregory J. Hare et al., Weed at Work: Can Georgia Employers Still Drug Test?, Nat’l L. Rev. (Apr. 1, 2024), https://www.natlawreview.com/article/weed-work-can-georgia-employers-still-drug-test.

[4] See id.

[5] See id.

[6] See Fox5 Atlanta Publishing Team, Lawmakers Propose Raising Georgia Legal Age to Buy Medical Marijuana to 21, Fox5 (Jan. 18, 2024, 6:16 AM), https://www.fox5atlanta.com/news/medical-marijuana-georgia-legal-age-senate-bill.

[7] See Georgia Marijuana Laws 2024, Ga. Cannabis Info., https://georgiastatecannabis.org/laws (last visited Apr. 1, 2024).

[8] See id.

[9] See id.

[10] See Fox5 Atlanta Publishing Team, supra note 6.

[11] See id.

[12] See Hare, supra note 3.

[13] See Dawn White, Georgia Court of Appeals Rules Delta 8, Delta 10 THC Products are not Controlled Substances, 11alive (Nov. 3, 2023, 8:23 PM), https://www.11alive.com/article/news/local/georgia-delta-thc-ruling/85-fc1e8246-7a15-49a3-8b7d-5acafe7fe9dc.

[14] See Hare, supra note 3.

[15] See White, supra note 13.

[16] See Whitt Steineker & Mason Kruse, Ga. Needs to Resolve Cannabis Counsel Confusion, Bradley (Apr. 17, 2023), https://www.bradley.com/insights/publications/2023/04/ga-needs-to-resolve-cannabis-counsel-confusion.

[17] See Hare, supra note 3 (“[G]iven the long-running absence of state-regulated supply chain management, the marijuana products floating throughout the local marketplace remain riddled with unknown contents.”).

[18] See Lisa Guerin, Georgia Laws on Workplace Drug Testing, NOLO, https://www.nolo.com/legal-encyclopedia/georgia-laws-workplace-drug-testing.html (last visited Apr. 1, 2024).

[19] See id.

[20] See Hare, supra note 3.

[21] See id.

[22] See id.

[23] See Georgia – Considerations for Marijuana in the Workplace, Nat’l Drug Screening, Inc., https://www.nationaldrugscreening.com/marijuana-considerations/georgia/ (last updated on Apr. 18, 2023).

[24] See id.

[25] See id.

[26] See id.

[27] See id. (highlighting the difficulties Georgia employers are faced with due to Georgia’s cannabis laws).

[28] See id.

World Cup 2026: Triumphant Tournament? Or Recipe for Disaster?

By: Nicholas Constantinidis

From June 11th through July 19th, 2026, the United States will be one of the homes for the FIFA World Cup as matches occur between the U.S., Canada, and Mexico.^[1] It is poised to be a spectacle of an event that will generate between $7-$11 billion in revenue for FIFA.^[2] New Jersey, home to Metlife Stadium, will be hosting the World Cup Final with the preparation and setup for the event generating close to $2 billion and creating 14,000 jobs.^[3]

As great as all of this sounds for both FIFA and one of the many states to host a World Cup match, numerous logistical concerns linger from the 2022 World Cup held in Qatar and several others that naturally exist when a tournament of this magnitude occurs.^[4]

First, we must address the human rights violations that occurred in the 2022 World Cup where “hundreds of migrant security guards … were subject to labor exploitation.”^[5] Many workers were misled about their jobs, worked excessive hours, and had little to no days off.^[6] One worker from Ghana was working to support his siblings and “had to take out a loan to pay for the expense to travel and work in Qatar during the World Cup” and is still paying the loans as he did not earn enough.^[7]  As if that were not bad enough,  according to the “Human Rights Watch,” FIFA received multiple warnings from workers and other civil society groups about the conditions workers faced, failing “to impose strong conditions to protect workers and [they] became a complacent enabler to the widespread abuse workers suffered … including injuries and deaths.”^[8] All of these violations came in the face of Various Human Rights Policies that FIFA itself adopted before the 2022 World Cup.^[9]

So the question is, how can FIFA put together an entertaining product for viewers while ensuring the rights of the vast labor force required for this event are not violated?

First, FIFA has to learn from its first mistake in 2022 and realize just how much work goes into getting stadiums ready for use, cleaning, transportation, and other infrastructure ready which they failed to do in Qatar.^[10] With FIFA emphasizing its focus on human rights in its city selection process, it is clear there is a desire to remedy its failures from 2022.^[11]

This leads me to the next important suggestion, which is to work hand in hand with each country as immigration challenges may prove to be an issue in all three of the host countries.^[12] The United States, Canada, and Mexico all have “different procedures that promote the movement of not just athletes, teams and delegations, but also media, event planners, support staff, etc.”^[13] This includes the differing visa procedures, most notably Mexico’s which does not have a separate visa category for athletes and only allows certain people with permanent residence or valid visas to enter.^[14] All this is to say that a lot of planning must occur to ensure both the workers and media personnel can enter the host countries with minimal issues.^[15]

Another logistical issue is how FIFA will be able to manage a workforce of this magnitude that is spread amongst three countries since it would be a multijurisdictional workforce.^[16] This is a particularly important issue in the United States where employment laws are rather complex and many of the state laws differ from state to state.^[17] It could prove difficult for companies hiring and moving employees across borders to be compliant with laws for different jurisdictions.^[18]

In preparing for the 2026 FIFA World Cup, FIFA must do whatever it can to avoid allowing the thousands of workers set to help run this event to fall victim to misinterpreted employment laws or perhaps blatant abuses of human rights seen in 2022.^[19] The goal is clear, and all the players seem to be getting ready. Now it is time for FIFA to live up to its word, and protect its workers in 2026.

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^[1] See Shannon Donnelly et al., 2026 World Cup: Companies Face Labor Challenges And More, Law360 (Mar. 13, 2024) https://www.law360.com/articles/1812466/2026-world-cup-companies-face-labor-challenges-and-more.  

^[2] See A World Cup for Workers: Fighting for Labor and Human Rights, ILRF (Mar. 21, 2022) https://laborrights.org/blog/202203/world-cup-workers-fighting-labor-and-human-rights; See also Graham Dunbar, FIFA targets $11 billion in revenue through 2026 World Cup, APNews (Dec. 16, 2022) https://apnews.com/article/world-cup-sports-qatar-3551b3dacd7c35a4f7b50ecbb69abec5.

^[3] See Nicol Maciejewska, FIFA World Cup 2026 Final Expected To Generate $2 Billion Economic Boost, The Pavlovic Today(Feb. 18, 2024) https://thepavlovictoday.com/fifa-world-cup-2026-final-expected-to-generate-2-billion-economic-boost/.

^[4] See Donnelly, supra note 1.

^[5] See Qatar: Inaction by Qatar and FIFA a year on from the World Cup puts legacy for Workers in Peril, Amnesty(Nov. 15, 2023) https://www.amnesty.org/en/latest/news/2023/11/qatar-inaction-by-qatar-and-fifa-a-year-on-from-the-world-cup-puts-legacy-for-workers-in-peril/#:~:text=As%20previously%20documented%20by%20Amnesty,the%202022%20Qatar%20World%20Cup..

^[6] See id.

^[7] See id.

^[8] See Qatar: Rights Abuses Stain FIFA World Cup, HRW (Nov. 14, 2022) https://www.hrw.org/news/2022/11/14/qatar-rights-abuses-stain-fifa-world-cup [hereinafter “Qatar”].

^[9] See id.

^[10] See id.

^[11] See The Promise of a Positive Legacy: The 2026 FIFA WORLD CUP HOST CITY CANDIDATES’ HUMAN RIGHTS PLANS, Clifford Chance, https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2022/03/the-promise-of-a-positive-legacy.pdf (last visited Mar. 16, 2024).

^[12] See Donnelly, supra note 4.

^[13] See id.

^[14] See id.

^[15] See id.

^[16] See id.

^[17] See id.

^[18] See id.

^[19] See Qatar, supra note 8.

Muldrow v. City of St. Louis, Missouri: What to Expect

By: Joseph Diez

One of the most anticipated Supreme Court cases of 2024 is Muldrow v. City of St. Louis, Missouri.[1]  In 2008, Sergeant Muldrow was transferred from her position as a patrol detective to the Department’s Intelligence Division.[2]  There she worked on public corruption, human trafficking cases, and served as the head of the Gun Crimes Intelligence Unit.[3]  In 2016, Sergeant Muldrow was then deputized by the FBI as a Task Force Officer (TFO) for its Human Trafficking Unit and was granted access to the FBI’s database.[4]  Despite her exemplary record, in 2017 Captain Deeba transferred Sergeant Muldrow to the Fifth District.[5]  As a result of her transfer, Segreant Muldrow experienced a sense of demotion as she was now required to work a rotating schedule, wear a uniform, drive a marked vehicle, and was limited to certain jurisdictions.[6]  Additionally, although her salary remained the same, she was no longer eligible for the FBI’s $17,500 annual overtime pay.[7]  During the next year or so, Sergeant Muldrow applied to various positions in different departments and districts.[8]  Eventually, on February 5, 2018, Sergeant Muldrow was then transferred back into the Intelligence Division, having her TFO privileges reinstated, and withdrew her application for Sergeant Investigator.[9]

            Sergeant Muldrow then filed an action in State Court alleging various claims under Title VII[10] against both the City of St. Louis and captain Deeba.[11]  In her complaint she alleged:

“gender discrimination in violation of Title VII against the City of St. Louis; retaliation for reporting acts of discrimination in violation of Title VII against the City of St. Louis; gender discrimination in violation of the Missouri Human Rights Act against the City of St. Louis and Captain Deeba; and retaliation for reporting acts of discrimination in violation of the Missouri Human Rights Act against the City of St. Louis and Captain Deeba.”[12]

In response the case was removed to federal court, where the District Court granted the defendant’s motion for summary judgment and dismissed Sergeant Muldrow’s state law claims.[13] In reaching a decision, the court concluded that she failed to prove her transfer resulted in a “tangible change in working conditions,”[14] and the Court of Appeals for the Eighth Circuit affirmed holding that her employment decisions did not constitute adverse employment action and therefore prevented her from establishing a prima facie case of gender discrimination under Title VII.[15]  Similarly, the court found that Sergeant Muldrow failed to state a prima facie case of retaliation under Title VII because the  employments decisions were not “materially adverse actions.”[16]  After granting certiorari, oral arguments were set to begin on December 6, 2023, where the Supreme Court of the United States sought to determine whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a signification disadvantage?[17]

Sergeant Muldrow contends that the St. Louis Police Department’s decision to transfer her was based on sex and is therefore violative of Title VII.[18]  With regards to the statutory interpretation of Title VII, Sergeant Muldrow further contends that the phrase “terms” included requirements set by her employer such as when, where, and with whom she is required to work as well as her title, tasks, and other job-related matters.[19]  Further, Sergeant Muldrow argues that “conditions” and “privileges” should be defined as benefits that employers must guarantee and taken together, the term “terms, conditions, and privileges”[20] includes a wide variety of employment decisions.[21]  Before the Supreme Court, Muldrow argued that a “discriminatory act intrinsically causes the type of harm that Title VII was intended to remedy,” and that regardless of how insignificant, any employment decision made on the basis of a protected characteristic constitutes unlawful discrimination.[22]  In response, the City argued that the “material harm standard” is long-standing precedent and acts as a filtration system for frivolous claims.[23] 

Surprisingly enough, it may seem as if the Supreme Court Justices are preparing to overturn decade long precedent. Justices Gorsuch and Kavanaugh stated that disparate treatment based on race or sex is inherently discriminatory alluding to the idea that concrete harm may not be necessary to support such a claim under Title VII.[24] Contrarily, Justices Thomas and Barrett are of the opinion that ruling in favor of Sergeant Muldrow would cause issues in other areas of workplace discrimination, such as diversity, equity, and inclusion initiatives.[25] 

            Those closely monitoring the case suggest that although a decision in favor of Muldrow will be limited to the transfer context, the effects of the decision might find its way into other areas of workplace discrimination because it would widen the scope of Title VII and remove some of the heavy lifting necessary to establish a prima facie case of discrimination under Title VII.[26] 

---

[1] See Ann E. Marimow & Nick Mourtoupalas, Major Supreme Court Cases We’re Watching in 2024, Bloomberg Law, (Feb. 29, 2023) https://www.bloomberglaw.com/bloombergterminalnews/bloomberg-terminal-news/S9MVKF6QRTHC?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9zZWFyY2gvcmVzdWx0cy82YzJlZmQyZWUyNGRiMGY5OGE5YzQwOTBiNTNlZGE4YyJdXQ–25fe17d219f828ce63ef3919b35d8f7d374e923c&criteria_id=6c2efd2ee24db0f98a9c4090b53eda8c

[2] See Muldrow v. City of St. Louis, Missouri, 30 F.4th 680, 684 (8th Cir. 2022). 

[3] See id. at 684.

[4] See id. at 685.

[5] See id. at 685.

[6] See id. at 685.

[7] See id. at 685.

[8] See Muldrow v. City of St. Louis, Missouri, 30 F.4th 680, 686 (8th Cir. 2022) (“On July 5, Sergeant Muldrow requested a transfer to the Second District via PeopleSoft, the Department’s software management system; in her deposition, she testified that upon her transfer to the Second District, she would have been assigned as Captain Coonce’s administrative aide. Then, on July 26, Sergeant Muldrow applied for a position as a detective sergeant in the Second District. Finally, on August 3, Sergeant Muldrow applied for a sergeant investigator position in the Internal Affairs Division. Applicants for the sergeant investigator position were instructed to reapply when the position reposted because, due to an officer shortage, the sergeant investigator positions would not be filled until later in the year. On October 27, Sergeant Muldrow reapplied.”).

[9] See id. at 686.

[10] See 42 U.S.C. § 2000e-2.

[11] See supra note 2 at 686.

[12] Id. at 686.

[13] See Muldrow v. City of St. Louis, Oyez, Missourihttps://www.oyez.org/cases/2023/22-193 (last visited Mar 11, 2024).

[14] Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs.,728 F.3d 800, 804 (8th Cir. 2013) (quoting Dep’t of Health and Human Servs., 638 F.3d 944, 955 (8th Cir. 2011) (“An adverse employment action is defined as a tangible change in working conditions that produces a material employment disadvantage, including but not limited to, termination, cuts in pay or benefits, and changes that affect an employee’s future career prospects, as well as circumstances amounting to a constructive discharge. Wilkie v.. However, minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action.”)).

[15] See supra note 13.

[16] See id; see also Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (“In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.”).

[17] See id.

[18] See Legal Information Institute, Muldrow v. City of St. Louis, Missouri, Cornell Law School, https://www.law.cornell.edu/supct/cert/22-193 (last visited Mar. 11, 2024).

[19] See id.

[20] 42 U.S.C. § 2000e-2(b) (“It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.”).

[21] Id.

[22] Muldrow v. City of St. Louis: Will SCOTUS Lighten the Prima Facie Burden for Title VII Plaintiffs?, Maynardnexsen (Jan. 30, 2024) https://www.maynardnexsen.com/publication-muldrow-v-city-of-st-louis-will-scotus-lighten-the-prima-facie-burden-for-title-vii-plaintiffs

[23] See id.

[24] See id.

[25] See id.

[26] See id.

A Nation Split on Joint Employers

By: Vaughn C. Collopy

The NLRB Ruling

The National Labor Relations Board (the “NLRB”) created a new rule in late 2023, effective March 11, 2024, regarding joint employment.  The new joint employer rule/test states that any group of entities may qualify as joint employers if (i) there is an employment relationship between each entity and the employees and (ii) any number of the employees’ essential terms of employment are shared by the entities.[1] The joint employment rule was derived out of a primarily-Democratic NLRB decision to oust former President Donald Trump’s preexisting NLRB rule that made companies joint employers only if they had direct and immediate control over employment terms.[2] They reasoned that the prior rule was a false interpretation of the NLRA.[3] Thus, the NLRB has sought a major shift from their decision in Browning-Ferris[4] in which indirect control was merely probative of joint employer status.[5]

Determination of “Joint Employer” Under the New Rule

            Although the new rule sets a broader standard for qualifying as a joint employer, there are seven (7) distinct categories of employment terms that shall be considered in this determination, including: (i) wages, benefits and other compensation; (ii) hours of work and scheduling; (iii) assignment of job duties; and supervision of the performance of those job duties.[6]

The Effect of the Ruling

Ultimately, this new joint employment rule benefits entities, because it makes it easier to qualify as a joint employer than under the prior rule.[7] Specifically, the new rule is broad enough to potentially include as joint employers businesses that merely control another company’s employees through an intermediary or businesses who, by contract, may determine or control terms of employment.[8]

The new rule does not apply retroactively, but only applies to cases filed after December 26, 2023.[9]

Texas’s Response to the New Rule

In November of 2023, numerous business advocacy groups banded together with the U.S. Department of Commerce and filed suit in a Texas federal court to rid of the Joint Employer Rule.[10] This coalition alleged that the NLRB’s new rule is (i) overbroad; (ii) sets a standard contrary to common law; and (iii) is arbitrary and capricious.[11] In March of this year, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas, struck down the NLRB’s new rule.[12] Barker reasoned that it “is unlawfully broad because an entity could be deemed a joint employer simply by having the right to exercise indirect control over one essential term [of employment]”[13] and it “would treat every entity that contracts for labor as a joint employer.”[14] Furthermore, Barker, in accordance with the coalition’s allegations, stated that the new rule’s standard for determination is flawed because if an entity meets the first prong, it will always meet the second.[15]

Potential Fate of the New NLRB Rule

            Although not certain to be struck down again, Barker’s decision is likely be appealed to the U.S. Court of Appeals for the Fifth Circuit.[16] This leaves the new rule’s fate in the balance. This rings especially true given challenges in other jurisdictions. For example, members of both the Democratic and Republican Party in West Virginia acted quick to introduce a state law seeking to block the joint employer rule.[17] Moreover, earlier this year, the House of Representatives passed a resolution to overturn the joint employer rule.[18] Opponents of the joint employer rule assert that the rule, if kept, will “dramatically raise costs for employers and take away jobs.”[19] For these reasons, it seems highly likely that the joint employer rule will not go into effect; however, only time will tell, considering the fact that “perhaps no other labor law issue has been as bitterly contested over the past decade as the standard for deciding when companies share liability for unfair labor practices and obligations to bargain with unions.”[20]

---

[1] The Standard for Determining Joint-Employ. Status – Final Rule published 10/27/2023, N.L.R.B., https://www.nlrb.gov/about-nlrb/what-we-do/the-standard-for-determining-joint-employer-status-final-rule (last visited Mar. 10, 2024).

[2] Robert Iafolla, New Lab. B. Joint Employ. Test Replaces Trump-era Rule (1), Bloomberg L. (Oct. 26, 2023), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X5UGQPDO000000#jcite.

[3] See id.

[4] N.L.R.B. Bd. Decision, Browning-Ferris Indus. of CA., Inc., 362 N.L.R.B. No. 186, 204 (2015).

[5] See supra note 2.

[6] See id.

[7] See id.

[8] See id.

[9] See id.

[10] Robert Iafolla & Rebecca Rainey, Labor Board’s Joint Employer Rule Draws First Industry Suit (1), Bloomberg L. (Nov. 9, 2023), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/XBQF9P5O000000?#jcite.

[11] See id.

[12] Robert Iafolla, Lab. Bd.’s Joint Employ. Rule Struck Down in Texas Ct. (4), Bloomberg L. (Mar. 9, 2024), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/BNA%200000018d46ddd1eaa7fdeedf8e190001?bna_news_filter=daily-labor-report.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] Diego Areas Munhoz, House Passes Measure to Block NLRB’s Joint Employ. Rule (1), Bloomberg L. (Jan. 12, 2024), https://www.bloomberglaw.com/product/tax/bloombergtaxnews/daily-labor-report/X8A3P1RO000000?bna_news_filter=daily-labor-report#jcite.

[19] See id.

[20] See supra note 10.

No More Snooping: New York Restrictions on Employer Access to Employees’ and Applicants’ Social Media Accounts

By: Stephanie A. Okine

New York lawmakers have passed a new statute which restricts an employer’s ability to request social media information from their employees and job applicants.[1] It has joined the handful of states that have similar legislation including California, Connecticut, Delaware, Maryland, and New Jersey.[2]

On September 14, 2023, the governor of New York, Kathy Hochul, signed Senate Bill S2518A[3] into law.[4] This law has major implications for employers with respect to their hiring process and generally managing their employees. [5] The Law was enacted in response to the reports of employers requiring social media account information from applicants as part of the hiring process.[6] It was reported that the information collected was used as conditions for hiring, conditions for lateral movement within the company, and in some cases, resulted in termination.[7]

Taking effect on March 12, 2024, Section 201-I makes it unlawful for an employer to request, require or coerce any employee or applicant for employment to: “disclose any username and password, password, or other authentication information for accessing a personal account through an electronic communications device.”[8] It excludes instances where an employee or applicant voluntarily adds their employer or agent of the employer to their personal internet account.[9] The law also makes it unlawful for an employer to discharge, discipline or otherwise threaten to discharge, discipline or penalize an employee for refusing to disclose such information.[10] Neither is it lawful for an employer to fail or refuse to hire an applicant who refuses to disclose information about their personal internet account.[11]

The law contains a number of carveouts that allow employers to access social media accounts under certain conditions.[12] First, an employer  may request or require an employee to disclose access to information to an account provided by the employer, if such account was used for business purposes and the employee was given prior notice.[13] Second, the employer may request access to an electronic communication device which is paid in whole or part by the employer, was conditioned on the employer’s right to access and the employee with prior notice explicitly agreed to such condition. However, an employer cannot access personal accounts on such a device.[14] Third, an employer may access or obtain information on an employee’s account in compliance with a court order.[15] Finally, an employer may restrict  an employee’s access to certain websites while using the employer’s network or devices paid in whole or part by the employer.[16]

The Law does not prevent employers from viewing, accessing or utilizing information about the employees which is made publicly available by the employee without account login information.[17]

The onus now lies on employers to ensure they update their employment manuals, policies, and procedures withing the confines of this new law.[18]

---

[1] See Poulos LoPiccolo, WHAT TO KNOW ABOUT NEW YORK’S UPCOMING SOCIAL MEDIA PRIVACY LAW FOR EMPLOYEES (MARCH 2024), Poulos LoPiccolo PC (Jan. 11, 2024), https://www.pllawfirm.com/2024/01/11/what-to-know-about-new-yorks-upcoming-social-media-privacy-law-for-employees-march-2024/.

[2] See Joshua S. Bauchner & Jed M. Weiss, New NY Statute Restricts Access to Employee Social Media; Imposes Notice Requirements, N.Y. L. J. (Feb. 23, 2024), https://www.law.com/newyorklawjournal/2024/02/23/new-ny-statute-restricts-access-to-employee-social-media-imposes-notice-requirements/.

[3] See Senate Bill S2518A (N.Y. 2023).

[4] See Bauchner et al., supra note 2.

[5] See id.

[6] See id.

[7] See id.

[8] See Senate Bill S2518A (N.Y. 2023).

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See Senate Bill S2518A (N.Y. 2023).

[15] See id.

[16] See id.

[17] See id.

[18] See Bauchner et al., supra note 2.

Is the Price Right? Controversy Over “Surge Pricing” Begs the Question of “Surge Wages”

By: Claire S. Campuzano

Wendy’s received a fast and frosty reaction to the reports of the franchise introducing “dynamic pricing” beginning in 2025.^[1]  The company’s new CEO and president explained the “digital menu board enhancements . . . will improve order accuracy [and] grow sales with upselling and merchandising.”^[2]  Digital menu boards, rather than traditional boards that require manual changes to prices, use dynamic pricing, which allows a company’s prices to “continuously adjust – sometimes in minutes – with response to real-time supply and demand.”^[3]  The fast food giant quickly addressed nationwide criticism by clarifying the pricing model would “include new menus that could offer discounts at slower times of the day [rather than] raise prices during peak demand.”^[4]

            Dynamic pricing, or “surge pricing,” as many consumers call it, is not a new phenomenon: rideshare and delivery companies like Lyft, Uber, and DoorDash have implemented the practice for years.^[5]  However, for these companies’ mobile app-based workers, high demand hours and areas have often come with financial bonuses for the drivers.^[6]  Lyft’s info page for its drivers explains that the driver’s fare is both “based on characteristics of the ride” and “what’s going on in [the driver’s] area.”^[7]  “Characteristics” include the estimated time of the ride as well as distance to pick up the driver and to complete the ride.”^[8]  Other factors affecting fare payments include the number of drivers nearby, the number of ride requests, and how busy the destination location is at the time of the rideshare order.^[9]  Similarly, Uber’s website for drivers explains the company’s use of surge pricing: as demand for rides increases, earnings for rides – and deliveries, for UberEats workers – go up.^[10]  At DoorDash, the delivery company offers “Peak Pay,” which is truthfully just surge pricing by a different name.^[11]  Where available, the workers – called “Dashers” – have “the ability to earn more while on a dash for completing deliveries that a Dasher accepts during the dates, times, and in areas Peak Pay is in effect.”^[12]  Peak Pay charges consumers higher payment fees, which in return provide its Dashers with bonus money on top of base pay and customer tip.^[13]

Given that Wendy’s employees aren’t paid through an app like workers of the aforementioned companies, the question of how employee wages may be affected with surge pricing remains.  Prior to the fast food giant’s PR walk-back, the brick-and-mortar anomaly had consumers asking whether Wendy’s would “increase the pay of the employees who work during the surge periods proportionally to the size of the price increase.”^[14]  For better or worse, hardly any major or minor news outlets have considered this employee-centric aspect of surge pricing.  Then again, this consideration could have large-scale ramifications on wage practices.  Much of the existing media coverage and public speculation has discussed how increased prices for customers can provide additional bonuses for workers.^[15]  If the plan is, as Wendy’s public relations team now reports, to offer discounts for customers during slower periods, the reverse consideration for wages necessarily follows.^[16]  As the current state of dynamic pay increases for workers with the increase of demand, will the future of dynamic wages include reduced pay for reduced demand?

---

^[1] See Ron Ruggless, Wendy’s Expects to Test Dynamic Pricing and Daypart Offers in 2025, Nation’s Restaurant News (Feb. 15, 2024), https://www.nrn.com/quick-service/wendy-s-expects-test-dynamic-pricing-and-daypart-offers-2025.

^[2] Id.

^[3] Jennifer Dublino, What Is Dynamic Pricing, and How Does It Affect E-Commerce?, business.com, https://www.business.com/articles/what-is-dynamic-pricing-and-how-does-it-affect-ecommerce/ (Nov. 6, 2023).

^[4] Jordan Valinsky, Wendy’s Will Test New Menus That Change Prices Throughout the Day, CNN, https://www.cnn.com/2024/02/27/food/wendys-test-surge-pricing/index.html (Feb. 28, 2024, 7:11 AM).

^[5] See Alison Griswold, The Devilish Change Uber and Lyft Made to Surge Pricing, Slate (Aug. 23, 2023, 2:42 PM), https://slate.com/technology/2023/08/lyft-uber-surge-prime-time-upfront-pricing.html; see also Motley Fool, Uber Eats vs. DoorDash: Who Pays More?, The Globe and Mail (Aug. 14, 2023), https://www.theglobeandmail.com/investing/markets/stocks/UBER-N/pressreleases/19345725/uber-eats-vs-doordash-who-pays-more/.

^[6] See, e.g., Lyft, The Driver’s Guide to Pay, https://www.lyft.com/driver/earnings (last visited Mar. 10, 2024) (“The [driver] fare also depends on what’s going on in your area, such as . . . [t]he number of ride requests in the area [and] [h]ow busy it is at the destination.”); see also id. (“Peak Pay adds an additional amount to the guaranteed active hourly rate.”).

^[7] Id.

^[8] See id.

^[9] See id.

^[10] See Your Earnings, Explained, Uber, https://www.uber.com/us/en/drive/how-much-drivers-make/?uclick_id=602e5f2d-f14a-4a18-98ac-c03370cc14b3 (last visited Mar. 10, 2024).

^[11] See DoorDash Dasher Support: Peak Pay, DoorDash, https://help.doordash.com/dashers/s/article/Peak-Pay?language=en_US (last visited Mar. 10, 2024).

^[12] Id.

^[13] See id.

^[14] Aerotwelve, Comment to Wendy’s Will Experiment with Dynamic Surge Pricing for Food in 2025, Hacker News (Feb. 28, 2024), https://news.ycombinator.com/item?id=39538533.

^[15] See Philip Huthwaite, What Is Surge Pricing – and Is it Appropriate for my Business?, BlackCurve (Aug. 18, 2023), https://blog.blackcurve.com/what-is-surge-pricing-and-is-it-appropriate-for-my-business.

^[16] See Valinsky, supra note 4.

Major U.S. Corporations Are Trying to Challenge the Constitutionality of the NLRB

By: Vasileios Karamanlis

Within the past year, large U.S. corporations have been targeted for violations of worker’s rights by the National Labor Relations Board (“NLRB”). For example, Amazon has been accused of attempting to end efforts to unionize by interrogating workers, threatening to call the police on them and demoting workers involved in union organizing.[1]  Similarly, SpaceX was accused of requiring employees who were laid off or fired to sign agreements that barred them from joining class-action lawsuits against them.[2]  These accusations come at the wake of a surge in union drives and contemporary equality efforts.[3]  Conversely, this also comes at the wake of lawsuits challenging the constitutionality of various regulatory agencies.[4]  Within the last couple of years alone, administrative law has been shifting in a direction that makes it more difficult for the government to protect workers.[5]  With increased pressure from the NLRB and a new found wave of conservative support, these corporate behemoths are choosing to capitalize on the Supreme Court’s conservative majority and are fighting back.[6]

            Filed January 2024, SpaceX was one of the first companies to take action in an attempt to hobble the NLRB.[7]  Following these claims are also filings made by Trader Joe’s[8], Amazon[9], and Starbucks[10] in an effort to remove the regulatory powers of the agency. The recent SpaceX filing claims that the NLRB is engaging in “an unlawful attempt . . . to subject SpaceX to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”[11]  SpaceX contends that the existence of the NLRB violates the separation of powers since it mixes executive and judicial functions.[12]  Additionally, they contend that the NLRB’s use of administrative judges[13] is a violation of the constitutional right to a fair trial.[14] 

These claims can simply be answered using case law. In 1937, the Supreme Court upheld the constitutionality of the NLRB.[15]  In doing so, the court made it clear that workers have the right to organize and bargain collectively.[16]  With the Jones & Laughlin Steel decision, the court reinforced that Congress had the power to create these agency structure guidelines which would help the agency function well.[17]  For example, by not allowing presidents to replace all of the NLRB’s administrative law judges for any reason or just because they feel like it, Congress intended to ensure the independence of those judges.[18]

These lawsuits can be seen as an attempt to remove these independent agencies and prevent a neutral process.[19] Moreover, considering the current conservative majority and their history, it is a toss-up whether the court will adhere to their historical rulings.[20]  If these corporations succeed in their endeavors, there is a fear that the court could be shifting backwards toward a more big-business focused perspective, similar to the approach of the “Lochner Era.”[21]  While there is room for optimism,[22] an issue currently on the docket regarding Chevron means the future of the NLRB could be uncertain.[23]

---

[1] See Kate Andrias, Amazon, SpaceX and Other Companies Are Arguing the Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, The Conversation (Mar. 25, 2024, 8:40 AM), https://theconversation.com/amazon-spacex-and-other-companies-are-arguing-the-government-agency-that-has-protected-labor-rights-since-1935-is-actually-unconstitutional-225611.

[2] Daniel Wiessner, SpaceX Forced Workers to Sign Illegal Severance Agreements, US Agency Claims, Reuters, (Mar. 21, 2024, 9:05 PM), https://www.reuters.com/business/spacex-forced-workers-sign-illegal-severance-agreements-us-agency-claims-2024-03-21/.

[3] See Steven Greenhouse, Major US Corporations Threaten to Return Labor to ‘Law of the Jungle’, The Guardian (Mar. 10, 2024, 7:00 AM), https://www.theguardian.com/us-news/2024/mar/10/starbucks-trader-joes-spacex-challenge-labor-board.

[4] Id.

[5] See W. Virginia v. Env’t Prot. Agency, 597 U.S. 697, 700 (2022) (holding that Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan); see also Epic Sys. Corp. v. Lewis, 584 U.S. 497, 497 (2018) (holding that neither the Arbitration Act’s saving clause nor the National Labor Relations Act (NLRA) supersede Congress’s instructions in the Federal Arbitration Act).

[6] See Greenhouse, supra note 3.

[7] See Complaint for Declaratory and Injunctive Relief, Space Expl. Technologies Corp. v. NLRB, 2024 WL 98691 (S.D.Tex. Jan 4, 2024).

[8] Max Nesterak, Trader Joe’s Argues National Labor Relations Board Is Unconstitutional — And Other Labor News, Minn. Reformer (Feb. 2, 2024, 9:58 AM), https://minnesotareformer.com/2024/02/02/trader-joes-argues-national-labor-relations-board-is-unconstitutional-and-other-labor-news/.

[9] Haleluya Hadero, Amazon Argues That National Labor Board Is Unconstitutional, Joining SpaceX and Trader Joe’s, AP News, https://apnews.com/article/amazon-nlrb-unconstitutional-union-labor-459331e9b77f5be0e5202c147654993e (last updated Feb. 16, 2024, 5:31 PM).

[10]  Andrew Afifian, Starbucks Worker: NLRB Is Unconstitutional, Dall. Express (Feb. 3, 2024), https://dallasexpress.com/national/starbucks-worker-nlrb-is-unconstitutional/.

[11] Space Expl. Technologies Corp., 2024 WL 98691, at 1.

[12] See Andrias, supra note 1.

[13] Who We Are, NLRB, https://www.nlrb.gov/about-nlrb/who-we-are (last visited Mar. 24, 2024).

[14] See Andrias, supra note 1.

[15] See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937) (“Our conclusion is that the order of the Board was within its competency and that the act is valid as here applied.”).

[16] See id. at 33.  

[17] See Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935) (referencing Congress’s power to discharge its duties independently).

[18] See id. at 629.

[19] See Eric Katz, Supreme Court Appears Ready to Deal Another Blow to Federal Agencies’ Administrative Powers, Gov’t Exec. (Nov. 29, 2023), https://www.govexec.com/management/2023/11/supreme-court-appears-ready-deal-another-blow-federal-agencies-administrative-powers/392348/.

[20] See id.

[21] Kate Andrias, Constitutional Clash: Labor, Capital, and Democracy, 118 Nw. U. L. Rev. 985 (2024).

[22] See id. at 992.

[23] Amy Howe, Supreme Court Likely to Discard Chevron, SCOTUSblog (Jan. 17, 2024, 6:58 PM),

https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/.

Fighting Corporate Greed: Flight Attendants Go on Strike for Higher Wages

---

By: Jennifer Parlow

On February 13, 2024, thousands of flight attendants participated in a “Worldwide Day of Action” to renegotiate their contracts.[1]  The action took place for a total of 24 hours at 32 airports around the world, involving three separate flight attendant unions that represent major airlines in the United States.[2]  At the time, roughly two thirds of flight attendants in the United States were involved in contract negotiations, including flight attendants at United, American, Southwest, and Alaska Airlines.[3] Flight attendants picketed and rallied to demand higher pay.[4]  They are frustrated by the fact that pilots were granted historic pay raises last year, while flight attendants continue to get paid at a rate that has not increased in years.[5]  For instance, flight attendants at American Airlines have not received a raise in approximately five years.[6]  Most flight attendants argue that they have not been adequately compensated for working through the pandemic, dealing with the rising costs of inflation, and taking on the responsibility of passenger safety.[7] 

            Boarding pay is one of the major issues that has contributed to flight attendants’ frustrations.[8]  The hourly pay for flight attendants begins when the aircraft door closes.[9]  However, there are numerous tasks that flight attendants must complete before that point, which involve briefings, pre-flight safety checks, and boarding the passengers, which is considered a laborious process.[10]  Some passengers require special assistance, especially unaccompanied minors and people with service animals.[11]  Therefore, flight attendants argue that it’s unfair that these tasks are completed before “the actual clock is ticking . . . to start getting paid.”[12]  Last December, flight attendants at Southwest Airlines rejected a proposed contract agreement because it failed to include boarding pay.[13]  Although American Airlines’ flight attendants reached an agreement that grants them half of their hourly wage during the boarding process, they are still not satisfied.[14]  Hence, flight attendants are willing to strike until they receive what they deserve: a decent paycheck.[15]

            Fortunately, following the Worldwide Day of Action, thousands of flight attendants entered into contract negotiations in the United States.[16]  To the success of these demonstrations, the union representing approximately 20,000 flight attendants at Southwest Airlines reached a tentative agreement on a new contract this past March.[17]  The terms of the contract are currently being negotiated, but the union plans to include full retroactive pay that dates back to the last contract agreement.[18]  Flight attendants could receive nearly $20,000 in retroactive pay; the union plans to grant such a large amount of retroactive pay due to the many years it has taken to reach a new agreement.[19]  Southwest’s tentative agreement amounts to a huge win for its flight attendants, and it should help other flight attendant unions who are in the process of negotiating their contracts.[20]  Hopefully, Southwest’s agreement “sets the standard for other flight attendants who are also bargaining.”[21]

---

[1] Flight Attendants Fight Back: Historic, Powerful Worldwide Day of Action, Ass’n of Flight Attendants-CWA (Feb. 16, 2024),

https://www.afacwa.org/flight_attendants_fight_back_historic_powerful_worldwide_day_of_action.

[2] See id.; Flight Attendants Hold Picket Signs and Rallies in Protest for New Contracts, Pay Raises, CBS News, https://www.cbsnews.com/news/airlines-american-flight-attendants-protest-higher-pay-new-contracts/ (last updated Feb. 13, 2024, 7:47 PM) (explaining the scope of the Worldwide Day of Action and the entities that were involved).

[3] See Andrea Hsu, Flight Attendants Across the Country Picket for Better Pay and Working Conditions, NPR (Feb. 13, 2024, 5:13 PM), https://www.npr.org/2024/02/13/1231221280/flight-attendants-across-the-country-picket-for-better-pay-and-working-condition.

[4] See Flight Attendants Hold Picket Signs and Rallies in Protest for New Contracts, Pay Raises, supra note 2.

[5] See id.

[6] See Hsu, supra note 3.

[7] See id. (outlining the different reasons why flight attendants feel that their current rate of pay is inadequate).

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] Id.

[13] See id.; see Flight Attendants Hold Picket Signs and Rallies in Protest for New Contracts, Pay Raises, supra note 2 (highlighting the importance of boarding pay in recent contract negotiations).

[14] See Hsu, supra note 3.

[15] See id.

[16] See Flight Attendants Fight Back: Historic, Powerful Worldwide Day of Action, supra note 1.

[17] See Southwest Flight Attendants to Vote on New Contract After Rejecting Previous Offers, Reuters, https://www.reuters.com/business/aerospace-defense/southwest-airlines-reaches-tentative-agreement-with-flight-attendants-union-2024-03-20/ (last updated Mar. 20, 2024, 11:56 PM).

[18] See Gary Leff, $6.3 Billion Game-Changer: Everything Southwest Airlines Flight Attendants Scored with New Contract, View From the Wing (Mar. 27, 2024), https://viewfromthewing.com/6-3-billion-game-changer-everything-southwest-airlines-flight-attendants-scored-with-new-contract/.

[19] See Gary Leff, Southwest Airlines Flight Attendants Will Get $20,000 Checks, View From the Wing (Mar. 26, 2024), https://viewfromthewing.com/southwest-airlines-flight-attendants-will-get-20000-checks/.

[20] See Leff, supra note 21.

[21] Id.

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A Peek Behind the Curtain: New Pay Transparency Laws Give More Power to Employees

By Robert M. Calvin

An emerging labor trend in the United States is to require pay transparency during the job application and promotion process.[1]  The States enacting these laws aim to narrow the gender and racial wage gaps as well as empower job applicants during the hiring process.[2]  Pay transparency is salient because it helps deter discrimination, unfair promotion practices, and helps bring management “closer to the people” with uniformity in pay practices.[3]  Some of the leading States in this matter are California and New York.[4]

            California added the pay transparency law in January of 2023.[5]  It requires anyone with fifteen or more employees to include a pay scale for all job postings.[6]  That includes when using third-party job posting services.[7]  They are also required to maintain records of job title and wage rate history for all employees for the duration of employment plus three years.[8]  Employers with less than fifteen are not immune though, as they would be required to produce a pay scale upon reasonable request.[9]  Violations of the law will result in civil penalties.[10]

            New York features a similar law, which went into effect in September of 2023.[11]  New York’s law applies to all employers, regardless of size, and requires the pay range to be disclosed for job postings, promotions, and transfers.[12]  The pay range is the maximum and minimum wage that the employer expects to pay for the position.[13]  New York also protects out of state employees so long as those employees report to a supervisor, office, or site within New York State.[14]  They also protect against retaliation against people who exercise their rights under this law[15] with civil penalties.[16]

            California and New York’s transparency laws are extremely similar with only minor differences. Both ultimately serve the same function and aim to make the workplace fairer.[17]  The  States are the laboratories of democracy, and as such, have the ability to try out these kinds of ideas.[18]  The nation should pay close attention to the effects of these laws in the coming years and consider enacting them across the board. 

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[1] See Caitlin Harrington, Pay Transparency is Sweeping Across the US, Wired (Sept. 18, 2023 7:00 AM), https://www.wired.com/story/pay-transparency-is-sweeping-across-us/.

[2] See Alonzo Martinez, U.S. Legislation That May Impact Background Screening in 2023: Part Three – Pay Transparency Laws Address Wage Equality and Negotiation Empowerment, Forbes (June 8, 2023 8:00 AM), https://www.forbes.com/sites/alonzomartinez/2023/06/08/us-legislation-that-may-impact-background-screening-in-2023-part-three–pay-transparency-laws-address-wage-equality-and-negotiation-empowerment/?sh=3b0cada14430.

[3] See Gowri Ramachandran, Pay Transparency, 116 Penn St. L. Rev. 1043, 1062-1067 (2012).

[4] See Michelle Peng, How to Prepare for New Pay Transparency Laws in California and Washington, Time (Dec. 20, 2022 4:11 PM), https://time.com/charter/6242729/ca-pay-transparency/.

[5] See Roy Maurer, State by State: Salary History Bans and Pay Transparency Laws, SHRM (Aug. 23, 2023), https://www.shrm.org/topics-tools/news/talent-acquisition/state-state-salary-history-bans-pay-transparency-laws.

[6] Cal. Lab. Code § 432.3(c)(3) (Deering 2023).

[7] Cal. Lab. Code § 432.3(c)(5) (Deering 2023).

[8] Cal. Lab. Code § 432.3(c)(4) (Deering 2023).

[9] Cal. Lab. Code § 432.3(c)(1) (Deering 2023).

[10] Cal. Lab. Code § 432.3(d)(4) (Deering 2023).

[11] See Maurer, supra note 5.

[12] N.Y. Lab. Law § 194-b(1)(a) (Consol. 2023).

[13] N.Y. Lab. Law § 194-b(6)(a) (Consol. 2023).

[14] N.Y. Lab. Law § 194-b(1)(a) (Consol. 2023).

[15] N.Y. Lab. Law § 194-b(2) (Consol. 2023).

[16] N.Y. Lab. Law § 194-b(5)(b) (Consol. 2023).

[17] See Martinez, supra note 2.

[18] See Bradley A. Blakeman, States Are the Laboratories of Democracy, The Hill (May 7, 2020 7:30 AM), https://thehill.com/opinion/judiciary/496524-states-are-the-laboratories-of-democracy/.