ELECTRIC VEHICLES AS A PRESIDENTIAL CAMPAIGN POINT OF CONTENTION: NAVIGATING SUCCESS AND THE RISK OF JOB LOSS IN AUTO MANUFACTURING

By: Trina Thai

The Biden-Harris administration has established a groundbreaking climate regulation aiming to guarantee that most passenger cars and light trucks sold in the United States will be all-electric or hybrid models by 2032.[1]

Electric vehicles (EVs) possess the capacity to transform the transportation landscape in the United States, markedly reducing carbon emissions and paving the path for substantial advancements in addressing climate change.[2]  Transportation holds considerable sway in an individual’s daily routine,[3] and people tend to embrace significant changes more readily once those behaviors become socially accepted norms.[4]

Burning fossil fuels, such as gasoline and diesel, releases carbon dioxide, a major greenhouse gas, into the atmosphere.[5]  This buildup of CO₂ is warming the Earth’s atmosphere, causing noticeable shifts in climate patterns,[6] notably, marking 2023 as the hottest summer ever recorded.[7]  In the United States, the transportation sector is the largest source of emissions, accounting for 38 percent of energy-related emissions in 2021.[8]

Electric vehicles are central to President Biden’s plan to combat global warming, and, in turn, has become a contentious issue in the 2024 presidential campaign.[9]  Former President Donald Trump, who is running for reelection, has attempted to exploit the EV debate by criticizing their performance and cost. [10]

Labor support has been crucial to President Biden’s political coalition and his image as a champion for the middle class.[11]  The United Auto Workers (UAW), representing 146,000 workers at the Detroit Three automakers,[12] had endorsed Biden for reelection.[13]  However, shortly after the new proposed tailpipe emissions limits,[14] UAW president, Shawn Fain, stated the union was withholding its endorsement of Biden’s reelection campaign due to concerns about the transition to electric vehicles.[15]

As EV production ramps up, conventional vehicle production may decline, potentially leading to job losses from the closure of production lines that make internal combustion engine and transmission parts.[16]  The auto manufacturing workforce may shrink as EV sales grow, or high-wage assembly jobs could be replaced by lower-wage battery-related jobs.[17]  For example, when General Motors’ Ultium battery joint venture began production in 2022, employees started at $15.50 per hour, half of the top wage at assembly plants.[18]

Unionized auto workers are concerned about a rapid shift to electric vehicles, as they contain fewer parts and thus require fewer workers to manufacture.[19]  Additionally, many new EV plants are being constructed in southern United States, where the workforce is predominately non-union.[20]

This situation can be likened to concerns raised in the UAW strike against the Detroit Big Three in 2023, which was partly focused on the transition to electric vehicles.[21]  A major union demand, alongside a 40 percent wage increase backed by President Biden during his visit to a UAW picket line, is job security for union members amidst the auto industry reshaping itself.[22]  The union sought a guaranteed right to strike when internal combustion plants close and compensation for displaced workers during transitions, such as the shift to EVs.[23]

The auto industry employs thousands of voters in Michigan, a key swing state that could impact the presidential election outcome in November.[24]  President Biden will need both the cooperation from the auto industry[25] and support from unionized auto workers for implementation widespread use of EVs in the United States, as well as a successful election.[26] 

The widespread adoption of electric vehicles in America could pave the way to a more sustainable future.  However, this transition is complex, involving political challenges geared towards obtaining reelection and concerns over the auto manufacturer job stability.  The outcome hinges on the choices and compromises made, which could result in environmental progress, political conflict, disruptions in the job market, or a combination of the three.

---

[1] Coral Davenport, Biden Administration Announces Rule Aimed at Expanding Electric Vehicles, N.Y. Times (Mar. 21, 2024, 3:13 AM),https://www.nytimes.com/2024/03/20/climate/biden-phase-out-gas-cars.html [hereinafter Biden Administration Announces Rule]

[2] See Joseph Glandorf, On the Move: Unpacking the Challenges and Opportunities of Electric Vehicles, Env. and Energy Study Institute (Nov. 5, 2020), https://www.eesi.org/articles/view/on-the-move-unpacking-the-challenges-and-opportunities-of-electric-vehicles.

[3] See U.S. Dep’t of Transp., National Household Travel Survey Daily Travel Quick Facts, Subsection to Bureau of Transportation Statistics (May 31, 2017), https://www.bts.gov/statistical-products/surveys/national-household-travel-survey-daily-travel-quick-facts (stating that 87% of daily trips take place in a personal vehicle, 91% of people commute using a personal vehicle, Americans take 1.1 billion trips a day [four for every person in the U.S], and the U.S. daily travel averages 11 billion miles a day [almost 40 miles per person per day]).

[4] Anna Shestakova et al., Electrophysiological precursors of social conformity, 8 Soc. Cognitive and Affective Neuroscience 756, 756-763 (2013)(“…past research on social influence has demonstrated that people often change their behavior in light of other people’s behavior or opinions.  In general, people are motivated to win approval and avoid rejection by conforming to others’ expectations.”) (available at: https://doi.org/10.1093/scan/nss064).

[5] See Carbon Pollution from Transportation,EPA, https://www.epa.gov/transportation-air-pollution-and-climate-change/carbon-pollution-transportation (last updated on May 11, 2023).

[6] Id.

[7] Lauren Sommer & Rebecca Hersher, 2023 was the hottest year on record. Is this how it’s going to be now?, NPR (Jan. 9, 2024, 7:20 AM),https://www.npr.org/2023/12/28/1221827923/2023-hottest-year-record-climate-change.

[8] Id; see also Emissions of Carbon Dioxide in the Transportation Sector, Cong. Budget Off., (Dec. 2022), https://www.cbo.gov/publication/58861.

[9] See Biden Administration Announces Rule, supra note 1.

[10] See Allan Smith, With violent rhetoric, Trump fights electric vehicles to defeat Biden in Michigan, NBC News (Apr. 9, 2024, 11:00 AM),https://www.nbcnews.com/politics/2024-election/trump-fights-electric-vehicles-defeat-biden-michigan-violent-rhetoric-rcna145689.

[11] See Coral Davenport, Biden Administration Is Said to Slow Early Stage to Shift to Electric Cars, N.Y. Times (Feb. 17, 2024),https://www.nytimes.com/2024/02/17/climate/biden-epa-auto-emissions.html [hereinafter Slow Early Stage to Shift to Electric Cars].

[12] See Elizabeth Blessing, Big Three Automakers: Definition, Companies, Market Cap and Share, Investopedia (Apr. 18, 2022),https://www.investopedia.com/terms/b/bigthree.asp (“The Big Three often refers to the three largest car manufacturers in North America: General Motors, Stellantis [formerly Chrysler], and Ford Motor Company.”).

[13] Joseph White, Biden’s drive for EVs collides with Detroit’s profit machines, Reuters (Feb. 15, 2024, 11:56 AM),https://www.reuters.com/business/autos-transportation/bidens-drive-evs-collides-with-detroits-profit-machines-2024-02-15/.

[14] Camila Domonoske & Michael Copley, In a boost for EVs, EPA finalizes strict new limits on tailpipe emissions, NPR (Mar. 20, 2024, 11:34 AM),https://www.npr.org/2024/03/20/1239092833/biden-epa-auto-emissions-evs (discussing EPA’s finalized strict rules on vehicle emissions to accelerate its transition to electric vehicles, to meet goal that President Biden set in 2021).

[15] See Slow Early Stage to Shift to Electric Cars, supra note 11.

[16] Growth in Electric Vehicle Manufacturing: A Factor in the 2023 United Auto Workers (UAW) Negotiations 1, Cong. Rsch. Serv., (Nov. 16, 2023), https://crsreports.congress.gov/product/pdf/IN/IN12279.

[17] Id.

[18] Id.

[19] See Slow Early Stage to Shift to Electric Cars, supra note 11.

[20] See Ben Tracy & Analisa Novak, EV battery manufacturing energizes southern communities in “Battery Belt”, CBS News (Oct. 4, 2023, 9:30 AM),https://www.cbsnews.com/news/ev-battery-manufacturing-energizes-southern-communities-battery-belt/.

[21] See Jim Motavalli, The UAW Strike Is About the EVs, Sierra (Oct. 5, 2023),https://www.sierraclub.org/sierra/uaw-strike-about-evs.

[22] Id.

[23] See id.

[24] See Biden Administration Announces Rule, supra note 1.

[25] Slow Early Stage to Shift to Electric Cars, supra note 11 (“The Alliance for Automotive Innovation, which represents 42 car companies that produce about 97 percent of the new vehicles sold in the United States, asked the administration for the slowdown sought by the United Auto Workers.”).

[26] Id. (“Some analysts said the trade-off, relaxing the rules to give auto companies and workers what they want, could be worth it if it helps Biden win the election, since Trump has made it clear that if he wins, he plans to roll back the rules entirely.”); see also See Biden Administration Announces Rule, supra note 1.

The End to Refining Crude Chevron Deference (not Oil) for the NLRB?

By: Michael Zanni

The Supreme Court recently heard arguments in January 2024 for Loper Bright Enterprises v. Raimondo,[1] revisiting the question of whether the Court should overrule Chevron v. Natural Resources Defense Council,[2] or at least clarify whether statutory silence on powers creates ambiguity requiring deference to administrative agencies.[3]  Chevron established that courts ordinarily should defer to policymaking decisions made by federal agencies, such as the National Labor Relations Board (“NLRB”), when interpreting statutes because agencies typically have greater expertise in the areas they regulate than judges, and thus are more likely to make reasonable policy decisions.[4]  Without Chevron deference, every complicated question would lead to litigation, with judges who may know little or nothing about the subject matter presiding over the case.[5]

The NLRB, created to enforce the National Labor Relations Act (“NLRA”), which “encourage[s] the practice and procedure of collective bargaining,” and protects an employee’s right to unionize and “engage in other [protected] concerted activity” related to the terms of their employment, has already been specifically targeted by employers, who are now challenging their constitutionality.[6]  Employers have brought forward several arguments including that the NLRB: infringes on the separation of powers doctrine;[7] undermines the authority of the judiciary;[8] creates regulatory instability;[9] impermissibly shields members and judges;[10] and violates the Fifth and Seventh Amendments.[11]

The NLRB has been able to stave off many of these claims, however, many feel that Loper needs to be taken seriously.[12]  That is because a majority of the current-sitting Supreme Court justices have either expressed opposition to Chevron deference or have called to limit the doctrine’s application.[13]  The Court has already begun peeling back Chevron, with many recent decisions regarding federal agencies’ power turning on the newly invoked “major questions doctrine,” which states that agencies are not presumed to have delegated authority for actions with “deep economic and political significance,” unless Congress expresses otherwise.[14]  Though the major questions doctrine gives the Court a veto power over policymaking decisions it deems too significant, Chevron has largely prevented lower court judges from micromanaging common regulatory decisions that the government makes all the time.[15]

If Chevron were to be overturned, or significantly limited, multiple recent NLRB actions and decisions could end up in litigation and in serious jeopardy of being struck down by the courts.[16]  Proponents of pro-labor fear that expanding the policymaking power of a judiciary that has been historically hostile to employee’s interests will be detrimental to recent labor advances.[17]  Additionally, administrative agencies like the NLRB would only have persuasive power on a case-by-case basis using Skidmore deference which considers an agencies “thoroughness evident in its consideration, the validity of its reasoning, its consistency [over time],” and other persuasive powers.[18]

In any event, overturning Chevron does not necessarily mean there will be a complete overhaul of the standards governing the judicial review of the NLRB’s statutory constructions.[19]  Judges, particularly on the appellate level, were already circumventing Chevron in reviewing NLRB decisions, so there would simply be a higher rate of challenges of the Board’s rules and opinions, with a higher likelihood that an appellate court reverses.[20]  If anything, perhaps judges will stop using their ideological animus when reviewing Board decisions if precedent no longer forces them to do so.[21]  Therefore, it seems that for better or for worse, the NLRB’s existing power to shape labor policy may not be dramatically different in a post-Chevron legal era.[22]

---

[1] Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S. argued Jan. 17, 2024).

[2] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[3] Loper Bright Enterprises v. Raimondo, SCOTUSblog, https://www.scotusblog.com/case-files/cases/loper-bright-enterprises-v-raimondo/ (last visited Apr. 2, 2024); see, e.g., Dan McLaughlin, How Chevron May Fall, Nat’l Rev. (Jan 23, 2024, 1:09 PM), https://www.nationalreview.com/2024/01/how-chevron-may-fall/.

[4] Chevron, U.S.A., Inc., 467 U.S. at 865-866. The Chevron doctrine’s two-step dance asks first, whether Congress has by statute, directly addressed the precise question at issue. Id. at 842. If so, both the court and the agency are bound by Congress’s statutory instructions. Id. at 842-843. However, if the statute is “silent or ambiguous” as to the precise question at issue, the court, applying step two, asks only whether the agency’s answer is based on a permissible construction of the statute. Id. at 843. In that case, “the reviewing court must uphold the agency’s construction provided it is a reasonable interpretation of the statute, even if it is not what the court regards as the best interpretation.” Jonathan R. Siegel, The Constitutional Case for “Chevron” Deference, 71 Vand. L. Rev. 937, 944-45 (2018).

[5] See Ian Millhiser, A New Supreme Court Case Seeks to Make the Nine Justices Even More Powerful, Vox (May 2, 2023, 7:30 AM), https://www.vox.com/politics/2023/5/2/23706535/supreme-court-chevron-deference-loper-bright-raimondo (giving an overview of the potential effects of overturning Chevron).

[6] 29 U.S.C. §§ 151, 157; see Aaron Vance, National Labor Relations Board is… Unconstitutional?, Nat’l L. Rev. (Mar. 13, 2024), https://www.natlawreview.com/article/national-labor-relations-board-unconstitutional.

[7] See John Fry, Understanding the Latest Constitutional Attacks on the NLRB, OnLabor (Jan. 20, 2024), https://onlabor.org/understanding-the-latest-constitutional-attacks-on-the-nlrb/ (highlighting the arguments in SpaceX’s lawsuit against the NLRB); Alexander Thomas MacDonald, Is the NLRB Unconstitutional? The Courts May Finally Decide, The Federalist Soc’y (Nov. 10, 2023), https://fedsoc.org/commentary/fedsoc-blog/is-the-nlrb-unconstitutional-the-courts-may-finally-decide (discussing the flaws with the NLRB). The common argument regarding separation of powers is that the NLRB mixes executive, judicial, and legislative functions. Fry, supra note 7; see also Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (the resulting concentration of power in federal agencies “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”).

[8] See Siegel, supra note 4, at 940. The judiciary is considered to be undermined because Chevron is a “doctrine for the abdication of the judicial duty” that prevents judges from exercising independent judgment when interpreting statutes. Gutierrez-Brizuela, 834 F.3d at 1152; see Siegel, supra note 4, at 940.

[9] See Adam J. White, Chevron Deference vs. Steady Administration, Yale J. on Regul. (Jan. 24, 2024), https://www.yalejreg.com/nc/chevron-deference-vs-steady-administration/ (explaining that major policy changes between administrations create immense regulatory uncertainty).

[10] See Fry, supra note 7. The NLRA states that the board president can only fire an NLRB member for “neglect of duty or malfeasance in office.” 29 U.S.C. § 153. The Supreme Court held in Humphrey’s Executor that Congress intended to “create a body of experts . . . which shall be independent of executive authority” and who can only be removed for good cause. Humphrey’s Executor v. United States, 295 U.S. 602, 625 (1935). Employers such as SpaceX claim that NLRB members “exercise substantial executive power” such that they should not be considered an independent agency. Fry, supra note 7.

[11] See MacDonald, supra note 7. Many take issue with the NLRB’s “unchecked power to decide cases” which violates the Seventh Amendment’s right to a trial by jury. Id. Additionally, while agencies may use administrative proceedings to adjudicate labor rights, employers take issue with the NLRB’s expanded list of remedies, which they say violates the Fifth Amendment’s Takings Clause. See Alexander Thomas MacDonald, Does Modern Labor Law Violate the Fifth Amendment?, The Federalist Soc’y (Jan. 4, 2024), https://fedsoc.org/commentary/fedsoc-blog/does-modern-labor-law-violate-the-fifth-amendment; see, e.g., Board Rules Remedies Must Compensate Employees for All Direct or Foreseeable Financial Harms, NLRB (Dec. 13, 2022), https://www.nlrb.gov/news-outreach/news-story/board-rules-remedies-must-compensate-employees-for-all-direct-or.

[12] See Vance, supra note 6; see also William Welkowitz, ANALYSIS: If Loper Bright Doesn’t Kill the NLRB, Elon Musk Might, BL (Mar. 27, 2024, 5:00 AM), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-if-loper-bright-doesnt-kill-the-nlrb-elon-musk-might (discussing both the Loper case and the newly filed SpaceX lawsuit).

[13] See Michael Kagan, Loud and Soft Anti-Chevron Decisions, 53 Wake Forest L. Rev. 37, 37-38 (2018).

[14] See, e.g., King v. Burwell, 576 U.S. 473, 486 (2015); W. Virginia v. Env’t Prot. Agency, 597 U.S. 697, 723 (2022) (“[I]n certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there . . . The agency instead must point to ‘clear congressional authorization’ for the power it claims.” (quoting Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014))); see cf. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (holding that Chevron deference applies when “Congress delegated authority to the agency generally to make rules carrying the force of law.”); Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187 (2006) (analyzing the initial inquiries that determine whether Chevron applies).

[15] Millhiser, supra note 5.

[16] Id.; see generally Ending Chevron Deference: Impacts on Worker Protections, Ctr. for Am. Progress (Jan. 10, 2024), https://www.americanprogress.org/wp-content/uploads/sites/2/2024/01/Worker-Protections-1.pdf (highlighting some of the workplace protections and benefits that would be put at risk by eliminating Chevron).

[17] See Jason Vazquez, The NLRB in a Post-Chevron World, OnLabor (Nov. 28, 2023), https://onlabor.org/the-nlrb-in-a-post-chevron-world/.

[18] Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944) (“[T]he rulings, interpretations and opinions of the Administrator . . . while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”). The NLRB also believes that they can rely on Supreme Court decisions made after Skidmore, but prior to Chevron, that grant deference to the board absent “unreasonable or unprincipled” interpretations. See, e.g., Ford Motor Co. v. N.L.R.B., 441 U.S. 488, 497 (1979).

[19] See Vazquez, supra note 17.

[20] See Welkowitz, supra note 12; see generally Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017) (presenting findings on how federal courts of appeals have applied Chevron deference). There is also a forum shopping concern. Welkowitz, supra note 12.

[21] See generally James J. Brudney, Chevron and Skidmore in the Workplace: Unhappy Together, 83 Fordham L. Rev. 497 (2014) (describing how despite the existence of the Chevron doctrine, there has been inaction from Congress and judges alike).

[22] See Vazquez, supra note 17.

Game Over: Total Number of Game Developers Lay off in 2024 Surpasses All of 2023 Despite Strong Profits

By: Christopher Griffin

In 2023, the total revenue of the video game industry (hereinafter the industry) grew to an estimated $406 billion, with some estimating that the industry will reach earnings of $666.69 billion in 2029.[1]  But profits are not the only record-breaking numbers in 2024, as this year has also seen some of the worst numbers regarding lay-offs.[2]  In 2023, the estimated number of industry laid-offs reached 11,250 people; and an estimated 6,000 were laid-off by the end of January 2024.[3]  By the end of March 2024, over 8,000 people were laid off, with Microsoft currently having the most known layoffs with 1,900 reported on January 25, 2024.[4]

            To explain why there is a seemingly sudden boom in layoffs, some of the answers go back to the COVID-19 pandemic.[5]  When the pandemic hit, people were forced to spend far more time indoors, and many began to purchase video game consoles.[6]  This boom in sales led to companies hiring more staff, commissioning more games, and creating new studios.[7]  Companies also began to use this influx of cash for acquisitions of other studios, such as the nearly $70 billion acquisition of Activision Blizzard by Microsoft.[8]  But, this high spending would soon come to an end, and companies soon began to start laying off their developers and selling acquired studios.[9]  In 2023, this growth began to decline, with revenue decreasing by 4% in the US, despite expectations by the industry that it would only continue to grow.[10] 

Another factor contributing to the spike in layoffs is the rapid increase in spending on game development, with some budgets reaching over $200 million, and with marketing costing double that at times.[11]  The problem with this is that these ballooning budgets are making the industry more unsustainable, as companies are now having to increase the prices of big-budget games to $70.[12]  But this will not be enough to cover costs, and the push in the industry to use more expensive technology will only further destabilize this industry.[13]

            This spike in layoffs has also led game developers to share their thoughts and fears about the safety of their jobs.[14]  At the 2024 Game Developers Conference, the conference posted its annual survey where, of the 3,000 participating developers, 56% of the participants stated they were worried about future layoffs.[15]  This can be especially hard for some developers who were required to relocate, only to be laid off in a city without a significant industry presence.[16]  Games are not like Hollywood where most businesses are centralized in one location; game companies can be found all over the world, and many workers often need to move to new cities or countries to find work.[17]  When speaking to Bloomberg reporter, Jason Schreier, developers who worked in Providence, Rhode Island, and Boston, Massachusetts said the worst part of their studios closing was “knowing that those cities did not have a significant gaming-industry presence and they would have to relocate for new opportunities.”[18]  These sentiments were shared by developers whose companies required they return to the office, only to be laid off soon after.[19]  While companies have argued that working in the office encourages productivity, that increase is overshadowed by the erosion of trust employees have when they are forced to return to or move to a new state or country to go to the office, only to be laid off in a few weeks.[20]

---

[1] See J. Clement, Video Game Market Revenue Worldwide 2019-2029, Statista (Mar. 18, 2024), https://www.statista.com/statistics/1344668/revenue-video-game-worldwide/.

[2] See Phil Hornshaw, Video Game Industry Layoffs are Worse Than Ever. How did We get Here?, Gamespot, (Mar. 12, 2024) https://www.gamespot.com/articles/video-game-industry-layoffs-are-worse-than-ever-how-did-we-get-here/1100-6521799/.

[3] See Ted Litchfield & Wes Fenlon, The Impact of 16,000 Games Industry Layoffs, In One Chart, PC Gamer, (Feb. 7, 2024) https://www.pcgamer.com/the-impact-of-16000-games-industry-layoffs-in-one-chart/.

[4] See Ivan Šimić, Esports Layoffs Tracker 2024, Esports Insider, (Mar. 22, 2024) https://esportsinsider.com/2024/03/esports-layoff-tracker-2024.

[5] See Chris Dring, What is Going on with Layoffs in the Video Games Industry?, Eurogamer, (Mar. 4, 2024) https://www.eurogamer.net/what-is-going-on-with-the-video-games-industry.

[6] See id. (“Due to lockdowns, PC and console game sales grew by as much as 50 percent in certain territories, per data from chart numbers firm GSD. Mobile games revenue grew 26 percent worldwide, per Sensor Tower.”).

[7] See id.

[8] See id.

[9] See Chris Morris, What’s Driving the Flood of Layoffs in the Video Game Industry? Fast Company, (Feb. 29, 2024) https://www.fastcompany.com/91044059/whats-driving-the-flood-of-layoffs-in-the-video-game-industry (providing an example with Embracer Group, a Swedish company who acquired over 100 companies since 2017, but due to a failed $2 billion deal with the Saudi Arabia Public Investment Fund, they have laid off nearly 1,400 people since June 2023, and canceled over 24 games).

[10] See Nicole Carpenter, What’s Going on With All These Video Game Industry Layoffs? Polygon, (Feb 19, 2024, 12:01 PM). https://www.polygon.com/gaming/24074767/video-game-industry-layoffs-explainer.

[11] See Chris Morris, supra note 9.

[12] See Gene Park, Layoffs are Tearing Through the Game Industry. This Year Could be Worse, Washington Post (Feb. 15, 2024, 3:59 PM), https://www.washingtonpost.com/entertainment/video-games/2024/02/15/game-industry-layoffs/.

[13] See id.

[14] See Rebekah Valentine, ‘I Stopped Believing in Myself’: Game Developers Share the Human Impact of Over a Year of Mass Layoffs, IGN, https://www.ign.com/articles/game-developers-mass-layoffs-human-impact-sony-ea (last updated Mar. 20, 2024, 10:50 PM).

[15] See 2024 State of the Game Industry, Game Developers Conference, https://reg.gdconf.com/state-of-game-industry-2024?_mc=pr_gdcsf_pr_3pvr_le_x_47_2024&kcode=SOTIPR (last visited Apr. 6, 2024).

[16] See Jason Schreier, Video-Game Companies Make Workers Relocate, Then Fire Them, Bloomberg (Jan. 26, 2024, 3:12PM), https://www.bloomberg.com/news/newsletters/2024-01-26/video-game-companies-make-workers-relocate-then-fire-them.

[17] See id.

[18] Id.

[19] See id.

[20] See id.

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]

---

[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.

---

^[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.