President Biden Urged to Legalize Undocumented Immigrants in Infrastructure Plan

By: Lizaury Rodriguez Marine

A group of more than sixty economists urged President Joe Biden to create a path to citizenship for undocumented immigrants in his economic and infrastructure plan, arguing it would “raise U.S. wages, productivity and tax revenue.”[1]

The economists, which include President Barack Obama’s former top economist Jason Furman and David Kallick of the Fiscal Policy Institute, made the proposal in a letter to the White House.[2] The economists argue that legalizing millions of immigrants, especially those in jobs considered essential during the pandemic, would strengthen the economy while providing them with workplace protections.[3] As of 2018, there is an estimated 11 million undocumented immigrants in the United States.[4] As of 2017, approximately 7.6 million undocumented immigrants worked in the U.S. as of 2017, which accounts for nearly 5% of all U.S. workers.[5]

The economists believe that a broad path to citizenship would benefit the economy but acknowledged that relief for essential workers is especially important.[6] A significant number of undocumented immigrants work in essential jobs and other industries that are at risk for job loss during the pandemic.[7] “Offering them the chance to earn citizenship will help to ensure that the economic recovery reaches all corners of society, including those that have disproportionately been on the front lines of the pandemic and yet left out of prior relief bills, and establishes a more stable and equitable foundation on which future economic success can be built,” the economists wrote in the letter.[8] Millions of undocumented immigrants in the United States already pay millions in taxes per year using an individual taxpayer identification number (ITIN), even though they do not have a social security number.[9] On average, between 4.4 million and 4.6 million people filed taxes using an ITIN each year from 2012 to 2015.[10] Undocumented immigrants play an integral role in the U.S. economy.[11] Creating a path to citizenship is vital to the economic recovery of the country.[12]  

In his first few days in office, President Biden unveiled the US Citizenship Act of 2021, an immigration bill that, among other things, provides an eight-year path to citizenship for over 11 million undocumented immigrants if it becomes a law.[13] The letter demonstrates a willingness among administration allies to break up Biden’s proposed immigration overhaul into smaller pieces, in order to get key parts passed into law.[14] Adding a route to citizenship for undocumented immigrants, however, could complicate passage of the infrastructure bill because most congressional Republicans regard such proposals as improper “amnesty” for people who migrated to the U.S. without authorization.[15]

“The Covid-19 pandemic has made plain how our public health and economic fates are inextricably tied together, and how harmful shortcomings in one part of our economy affect us all,” the economists argued in the February 11 letter.[16] “The inverse is also true: conferring citizenship will bring expansive benefits to communities across the country, not only for the individuals directly affected, but for the larger systems — families, and the workforce — that they comprise.”[17]


[1] Jordan Fabian, Biden Urged to Legalize Migrants as Part of Infrastructure Plan, Bloomberg (Feb. 12, 2021, 2 AM), https://www.bloomberg.com/news/articles/2021-02-12/biden-urged-to-legalize-migrants-as-part-of-infrastructure-plan?utm_source=url_link.

[2] Id.

[3] Id.

[4] See Randy Capps, et. al, Unauthorized Immigrants in the United States: Stable Numbers, Changing Origins, Migration Policy Institute (Dec. 2020), https://www.migrationpolicy.org/sites/default/files/publications/mpi-unauthorized-immigrants-stablenumbers-changingorigins_final.pdf.

[5] See Jens Manuel Krogstad, et. al, A majority of Americans say immigrants mostly fill jobs U.S. citizens do not want, Pew Research Center (June 10, 2020), https://www.pewresearch.org/fact-tank/2020/06/10/a-majority-of-americans-say-immigrants-mostly-fill-jobs-u-s-citizens-do-not-want/.

[6] See Fabian, supra note 1.

[7] See Immigrant Essential Workers are Crucial to America’s COVID-19 Recovery, FWD (Dec. 16, 2020), https://www.fwd.us/news/immigrant-essential-workers/ (Out of the U.S. essential industry workforce, undocumented immigrants make up 11% of agricultural workforce, 9% of housing & facilities industry, 6% of food services and production, 4% of transportation workforce, 2% of health industry, and 2% of other sectors).

[8] See Fabian, supra note 1.

[9] The Facts About the Individual Taxpayer Identification Number (ITIN), American Immigration Council (July 1, 2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_facts_about_the_individual_tax_identification_number.pdf.

[10] Fact Sheet: Individual Taxpayer Identification Numbers (ITINs), National Immigration Forum (July 1, 2020), https://immigrationforum.org/article/fact-sheet-individual-taxpayer-identification-numbers-itins/#_ftn7.

[11] See Immigrant Essential Workers are Crucial to America’s COVID-19 Recovery, supra note 7.

[12] See Immigrant Essential Workers are Crucial to America’s COVID-19 Recovery, supra note 7.

[13] See Shelby Brown, Biden’s immigration reforms could put 11 million people on the path to US citizenship. What to know, Cnet (Feb. 2, 2021, 6:54 PM), https://www.cnet.com/how-to/bidens-immigration-reforms-could-put-11-million-people-on-the-path-to-us-citizenship-what-to-know/.

[14] Fabian, supra note 1.

[15] Fabian, supra note 1.

[16] Fabian, supra note 1.

[17] Fabian, supra note 1.

Law Firms Duty to Train Their Employees in Cybersecurity

By: Steven Kramer

Employees are one of the leading causes of data breaches: “[i]t is predicted insider data breaches, whether intentional or accidental, will make up 33% of data breaches in 2021, compared to 25% today.”[1] Even if one lawyer or non-lawyer in a firm is the sole cause of the breach the firm and or its lawyers can be found in violation of the New York Rules of Professional Conduct (“Rules”) which require lawyers to supervise and use reasonable efforts to prevent the unauthorized access to or distribution of confidential client information by the firm’s partners,[2] associates,[3] and non-lawyers inside and outside the firm.[4]

To prevent many types of cyberattacks, law firms can start by taking a simple measure; train their employees in what to look out for.[5]  The FBI and the Department of Homeland Security “advised companies to take a number of steps to mitigate the attacks, including restricting VPN access hours and training employees to be suspicious of unsolicited phone calls.[6]  Officials also advised employees to limit the amount of information they post on publicly accessible social media sites.”[7] This will help with mitigating types of “vishing” attacks on companies.[8] Employees should also be trained on when to or not to click on links in emails which can open backdoors and allow hackers to steal hundreds of thousands of dollars from a firms trust account.[9] One trick to teach employees is to have the employees “hover[] over links” before they open them to make sure the website it leads to is a legitimate website.[10] Another tip employees should be made aware of is that they should type in the website address or use a bookmark which they know is secure if they receive an email asking them to sign in to a certain website.[11] Employees should also be taught why multifactor authentication is “necessary and worth the slight inconvenience.”[12]

Because of the rapid changes in technology, just because a system is secure one day, does not mean it is secured the next.  Therefore, attorneys must stay up-to-date on the advances.[13] Lawyers also have an affirmative duty to stay up to date in current technological trends, including cybersecurity risks,[14] and cannot claim that they are unaware of basic technological advances and the risks associated with using them.[15] One good way to stay on top of this is to make it easy for employees and outsiders to report any possible security issues to the firm’s IT department, such as setting up and clearly posting a separate email address to send in important security information.[16] Diligent attorneys and firms who follow these steps and procedures to prevent cyber breaches have a good chance of showing they used reasonable care in protecting their clients’ data in accordance with the Rules.


[1] Jaliz Maldonado, Cybersecurity: Understanding Cyber Insurance for Law Firms, The National Law Review (Mar. 7, 2019), https://www.natlawreview.com/article/cybersecurity-understanding-cyber-insurance-law-firms.

[2] N.Y. Rules of Prof’l Conduct R.5.1.

[3] Id.

[4] N.Y. Rules of Prof’l Conduct R.5.3.

[5] Federal Trade Commission, Protecting Personal Information, FTC (Oct. 2016), https://www.ftc.gov/system/files/documents/plain-language/pdf-0136_proteting-personal-information.pdf.  See also Federal Trade Commission, OnGuardOnline, https://www.consumer.ftc.gov/features/feature-0038-onguardonline, (last visited Feb. 1, 2020) (Provides informational videos that can tech employees some basic security tips.).

[6] Ben Kockman, FBI, CISA Warn of ‘Voice Phishing’ Attacks On Teleworkers, Law360 (Aug. 22, 2020) https://www.law360.com/cybersecurity-privacy/articles/1303896/fbi-cisa-warn-of-voice-phishing-attacks-on-teleworkers.

[7] Id.

[8] Ben Kochman, Employees Present Cos.’ Biggest Cyber Risk During Pandemic, Law360 (Aug. 21, 2020) https://www.law360.com/cybersecurity-privacy/articles/1302406/employees-present-cos-biggest-cyber-risk-during-pandemic (“Attackers in such cases prey on employees’ innate desire to help teammates or coworkers, making it essential for companies to combat this tendency by spending time and money to train their workers about how to handle such unsolicited requests, attorneys say.”).

[9] Yamri Taddese, Law Firm’s Trust Account Hacked, ‘Large Six Figure’ Taken, Law times (Jan. 7, 2013), https://www.lawtimesnews.com/news/general/law-firms-trust-account-hacked-large-six-figure-taken/259808.

[10] 7 Layers: Data Security Basics, SDxCentral Studios (Dec. 8, 2020), https://www.sdxcentral.com/podcast/7-layers/7-layers-data-security-basics/2020/12/.

[11] Top tips for working more securely from home, Microsoft (last visited Dec. 23, 2020), https://support.microsoft.com/en-us/office/top-tips-for-working-more-securely-from-home-c3e6c940-43a6-43a3-b780-b8784776c2a8.

[12] 7 Layers: Data Security Basics, supra note 10.

[13] Id.; Jill D. Rhodes & Robert S. Litt, The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business Professionals 40 (2d ed. 2017).

[14] See Federal Trade Commission, Protecting Personal Information, FTC (Oct. 2016), https://www.ftc.gov/system/files/documents/plain-language/pdf-0136_proteting-personal-information.pdf (Some ways for attorneys to stay up-to-date are to “[b]ookmark the websites of groups like the Open Web Application Security Project, http://www.owasp.org, or SANS (SysAdmin, Audit, Network, Security) Institute’s The Top Cyber Security Risks, http://www.sans.org/top20, for up-to-date information on the latest threats—and fixes. And check with your software vendors for patches that address new vulnerabilities.”).

[15] N.Y. Rules of Prof’l Conduct R.1.1 cmt. 8.

[16] Federal Trade Commission, Start with Security: A Guide for Business, FTC (Jun. 2015), ftc.gov/system/files/documents/plain-language/pdf0205-startwithsecurity.pdf. See also Federal Trade Commission, supra note 14.

Amazon Workers Long Struggle toward Unionization

By: Jared Nossen

Amid the COVID-19 pandemic, Amazon is facing their largest labor battle in its twenty plus years of existence.[1]  On February 8, 2021, the National Labor Relation Board mailed 5,805 workers a ballot to decide whether they want the Retail, Wholesale, and Department Store Union to represent them.[2]  A union victory could lead to unionization attempts for hundreds of Amazon’s warehouses all over the United States.

Despite being one of the nation’s most prominent employers, Amazon has steadfastly opposed unionization. Amazon’s first delay tactic was to postpone a hearing concerning the election until after the busing holiday season, which was ultimately rejected by the National Labor Relation Board (NLRB).[3]  They also motioned to demand voting to take place in person, showing a complete disregard to the growing concerns about the pandemic.[4]  Amazon spun its position by claiming that mail-in ballots go against the company policy of getting as many people as possible to vote and the NLRB’s longstanding policy.[5]  Amazon proclaimed that they had developed a safe-on-site election process that has being approved by COVID-19 experts.

Nonetheless, Amazon has clearly ignored the NLRB’s new standard for establishing Mail and Manual ballot representation elections during the COVID-19 pandemic.[6]  The Board specified more defined parameters under which Regional Directors “should exercise their discretion in determining election type against the backdrop of COVID-19.”[7]  These factors includes: (1) the agency office tasked with conducting the election is operating under “mandatory telework” status; (2) either the fourteen-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing or the fourteen-day testing positivity rate in the county where the facility is located is five percent or higher; (3) the proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size; (4) the employer fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols; (5) there is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; and (6) other similarly compelling circumstances.[8]

Additionally, Amazon has been steadily pushing workers to vote against the Union through texts, messages, an anti-union website, and several anti-union captive audience meetings.[9]  Amazon has been employing scare tactics, telling workers that they will be giving up their right to speak for themselves and will have to start paying union dues if the union is voted for.[10]  Employees are even bombarded with anti-union propaganda in the bathrooms.[11]  In the eyes of Amazon, there is no reason the workers need to unionize.  They state that they pay their workers well above the federal minimum wage and provide healthcare, dental, and retirement benefits.[12] 

On the other side of the argument, Amazon workers have a lot riding on this critical vote. Amazon employees around the country will understand that now there is a possible path to unionization and a strong voice on the job.[13]  In this case, the desire to unionize stems from the grueling productivity quotas and workers wanting more input in the disciplinary process.[14] They  view this union fight as much more than a traditional demand for higher wages; these employees have framed the issue around “respect and dignity.”[15]

On a national scale, labor advocates believe that President Biden’s administration is in a position to help the labor union effort.[16]  The recent House of Representatives passage of the Protecting the Right to Organize Act, serves as an important victory for labor unions by: (1) enforcing penalties for companies and executives who violate worker’s right; (2) expanding collective bargaining rights; and (3) strengthening worker’s access to fair union elections and requiring corporations to respect the rules.[17]  The passage will alter federal labor laws by creating massive advantages for labor unions, reverting most of President Trump’s administration policies.[18]

As voting has started, employees have until March 29th  to mail in their ballot. A “yes” vote could change the dynamic and future of Amazon, by being the first warehouse to unionize.[19] However, a “no” vote would be exactly the result Amazon has been campaigning towards for decades.[20] The future of the tech industry and one of the world’s most profitable businesses is in the hands of Amazon’s 5,805 employees. 


[1] Jay Greene, Amazon’s Anti-Union Blitz Stalks Alabama Warehouse Workers Everywhere, Even The Bathroom, Washington Post (Feb. 2, 2021, 6:00 AM), https://www.washingtonpost.com/technology/2021/02/02/amazon-union-warehouse-workers/.

[2] Id.

[3] Id.

[4] Brian Heater and Megan Ross, Amazon Warehouse Workers To Begin Historic Vote To Unionize, Tech Crunch (Feb. 7, 2021 1:19 PM), https://techcrunch.com/2021/02/07/amazon-warehouse-workers-begin-historic-vote-to-unionize/.

[5] Id.

[6] NLRB Establishes Standard For Mail-and Manual Ballot Representation Election During the COVID-19 Pandemic, NLRB (Nov. 9, 2020), https://www.nlrb.gov/news-outreach/news-story/nlrb-establishes-standards-for-mail-and-manual-ballot-representation.

[7] Aspirus Keweenaw, 370 NLRB No. 45 (2020).

[8] Id.; NLRB supra note 6.  

[9] Michael Sainato, Amazon Intensified ‘Severe’ Effort To Discourage First-Ever US Warehouse Union, The Guardian (Feb. 3, 2021, 5:00 PM), https://www.theguardian.com/technology/2021/feb/03/amazon-intensifies-severe-effort-discourage-first-warehouse-union.

[10] Id.; Heater et. al, supra note 2.

[11] Greene supra note 1.

[12] Greene supra note 1.

[13] Greene supra note 1.

[14] See Jason Slotkin, In Alabama, Workers At Amazon Warehouse Are Poised For Union Vote, NPR (Feb. 7, 2020, 8:10 PM), https://www.npr.org/2021/02/07/965162338/in-alabama-workers-at-amazon-warehouse-are-poised-for-union-vote

[15] Greene supra note 1.

[16] Jeffrey Dastin and Krystal Hu, Amazon To Face U.S. Union Push In Year Ahead, Reuters (Dec. 23, 2020, 6:05 AM), https://www.reuters.com/article/uk-amazon-com-labor-yearend-focus-idUKKBN28X1A4.

[17] See generally Celine McNicholas, Margaret Poydock, and Lynn Rhinehard, Why Workers Need the Protecting The Right to Organize Act, EPI (Feb 9, 2021), https://www.epi.org/publication/why-workers-need-the-pro-act-fact-sheet/. (explaining some problems that the PRO Act tries to resolve.).

[18] The Protecting The Right To Organize PRO Act of 2019: An Outline Of Its Property Labor Reforms, JD Supra (Feb. 10, 2021), https://www.jdsupra.com/legalnews/the-protecting-the-right-to-organize-13320/.

[19] Dastin et. al. supra note 16

[20] See generally id (illustrating the impact the vote could have on Amazon’s future.).

The Supreme Court Will Weigh-In on the Computer Fraud and Abuse Act During A Crucial Time for Cybersecurity in the Work Place (Wherever That May Be…)

By: Srinidhi Krishnan

The global pandemic has put us in a position where technology is the crucial rope that the world is hanging from in an effort to keep work-life functioning as close to normal as possible. As a result, the Computer Fraud and Abuse Act[1] (hereinafter, “CFAA”) becomes more relevant than, arguably, ever before. The CFAA is the government’s most important computer crime statute that criminalizes a wide variety of “unauthorized” and fraudulent computer activities.[2] Its purpose was to “strike an appropriate balance between the Federal Government’s interest in computer crime and the interests and abilities of the States” to punish computer crimes appropriately.[3]

Ultimately, despite amendments that accompanied technological advancements and sophisticated crimes, the CFAA’s language has caused a circuit split.[4] This has become particularly important in the employment realm. Courts differ in their views of whether employees that have permission to access a computer, but use that access in an improper manner, are acting without authorization.[5] The First, Fifth, Seventh, and Eleventh Circuit Courts have adopted a broader approach, and thus treat employees the same as anyone who may misuse information obtained from a computer, regardless of whether they were authorized to obtain the information.[6] In contrast, the Second, Fourth, and Ninth Circuit Courts interpret the CFAA narrowly, concluding that the statute only prohibits unauthorized access and does not reach the actual use of the accessed information.[7]

This confusion impacts both the employer and employee. With a broad interpretation of the CFAA, employers are given the right to sue employees under the CFAA for actions like stealing and misusing the employer’s computer files even if they had access to said files.[8] On the other hand, with a narrow view of the CFAA, an employee that had access to those files could misuse that information without the employer’s ability to bring a claim under the CFAA.[9]

After staying quiet for decades about the CFAA’s confusing language, the Supreme Court has finally agreed to weigh in on whether an individual with authority to access a computer violated the statute by using that access for an unauthorized purpose, in United States v. Van Buren.[10] The case involves Nathan Van Buren, a former Georgia police officer who was charged with violating the CFAA after giving license plate information to an acquaintance for $6,000.[11] Van Buren argued that he did not violate the CFAA since he was authorized to access the computer database and the license plate information obtained.[12]

Had the court followed Van Buren’s argument, they would have followed a narrow interpretation of the CFAA, since this argument does not consider whether accessing the database and information for the license plate was for an authorized purpose.[13] However, this argument was rejected by the court and upon appeal, the Eleventh Circuit Court followed its own precedent by using a broad interpretation of the CFAA to uphold the conviction.[14]

The Supreme Court’s upcoming interpretation of the CFAA regarding whether an employee who is authorized to access information on a computer for some purposes, violates the statute when accessing that information for different purposes, will have a crucial impact on cybersecurity.[15] This is especially important now, during the COVID-19 pandemic, where many are working remotely using cloud-based technology, and there is a forty-nine percent increase in digital nomads that are working from around the world.[16] These new practices revolving around computers and other technological devices are likely to lead to potential CFAA claims, and the Supreme Court’s interpretation of the CFAA’s language will prove to be a crucial base for navigating these cases going forward.


[1] Pub L No 99-474, 100 Stat 1213 (1986) (codified as amended at 18 USC § 1030).

[2] See 18 U.S.C. § 1030 (2020).

[3] Office of Legal Educ. [OLE], Prosecuting Computer Crimes Manual, 1 (2d ed., 2010). 

[4] Id. at 2.

[5] See id. at 9.

[6] See generally Teva Pharms. USA, Inc. v. Sandhu, 291 F. Supp. 3d 659, 669 (E.D. Pa. 2018) (discussing the implication of the CFAA where an employee misused and sent company information that she had authorized access to at the time of conduct).

[7] Id.

[8]See Wayne D. Garris and Christine Zebrowski,XpertHR Employment Law Manual 2256 (2020).

[9] See Teva Pharms. USA, Inc. v. Sandhu, 291 F. Supp. 3d 659, 669 (E.D. Pa. 2018).

[10] Carlton Fields, U.S. Supreme Court to Weigh in on Computer Fraud and Abuse Act (CFAA) for the First Time, JD Supra (June 15, 2020), https://www.jdsupra.com/legalnews/u-s-supreme-court-to-weigh-in-on-39718/.

[11] Steven Grimes, Shannon T. Murphy, and Tess L. Erickson-Meyer, SCOTUS to Consider the Scope of Federal Anti-Hacking and Computer Fraud Law, Winston & Strawn: Privacy & Data Security Law Blog (May 8, 2020), https://www.winston.com/en/privacy-law-corner/scotus-to-consider-the-scope-of-federal-anti-hacking-and-computer-fraud-law.html.

[12] Fields, supra note 10.

[13] See id.; see also Teva Pharms. USA, Inc. v. Sandhu, 291 F. Supp. 3d 659, 669 (E.D. Pa. 2018) (discussing the implication of the CFAA where an employee misused and sent company information that she had authorized access to at the time of conduct).

[14] Fields, supra note 10; see Teva Pharms. USA, Inc. v. Sandhu, 291 F. Supp. 3d 659, 669 (E.D. Pa. 2018).

[15] Fields, supra note 10

[16] See Beth Braccio Hering, Remote Work Statistics: Shifting Norms and Expectations, FlexJobs (Feb. 13, 2020), https://www.flexjobs.com/blog/post/remote-work-statistics/; see also Kellie Wong, 25 Key Remote Work Statistics for 2020, Business 2 Community (Apr. 7, 2020), https://www.business2community.com/human-resources/25-key-remote-work-statistics-for-2020-02299342 (explaining the growth in remote work since the COVID-19 global pandemic struck); see also Justin Fox, Pandemic digital nomads jobs are rising in work from home era, Employee Benefit News (Oct. 30, 2020), https://www.benefitnews.com/articles/pandemic-digital-nomads-jobs-are-rising-in-work-from-home-era (discussing the significant increase in “digital nomads” working from around the world).

Biden Administration Begins Process of Overhauling Previous Administration’s Labor Policies

By: Zachary Miner

During President Trump’s lone term in office, his administration implemented a number of rules and regulations aimed at changing existing labor and employment law.[1]  Many of the labor and employment policy decisions issued by the Trump Administration will continue to impact law in years to come; however, President Biden has acted swiftly and copiously to reverse as many of his predecessor’s labor-related decisions as possible.[2] 

On January 20, 2020, President Biden’s first day in office, his White House Chief of Staff, Ron Klain, issued a memorandum to the heads of all executive agencies, informing them of  a “regulatory freeze pending review.”[3]  The regulatory freeze had three main components: request that each executive department and agency avoid the proposal or issuance of any rule until it could be reviewed by Biden appointed officials; renounce any rules that have been sent to the Office of the Federal Register, but not published in The Federal Register; and to consider postponing “rules that have been published “in any manner, but have not taken effect “60 days from [January 20. 2020].”[4]  The Biden administration’s aforementioned requests, are likely to prevent a January 6, 2020 Department of Labor ruling, clarifying the worker status of independent contractors, from entering into law under the Fair Labor Standards Act (FLSA).[5] 

The Department of Labor rule was set to classify workers as independent contractors or employees primarily based on: (1) “the nature and degree of control over the work” by the employer and (2) “the worker’s opportunity for profit or loss based on initiative and investment” in the business.[6]  White House Press Secretary Jen Psaki stated that the rule would “be reconsidered by the new administration,” which had previously expressed support for a vastly different employment classification test, the “ABC” test, while campaigning.[7]  Another ruling by the Trump administration’s Department of Labor now under jeopardy, is a “final rule” intended to change tipping regulations under the FLSA.[8]

The rule was issued on December 22, 2020, well within the requisite sixty day “regulatory freeze” period stated in the White House’s memorandum.[9]  The “final rule” would allow employers to force tipped workers, such as waiters and waitresses, to share earned “gratuity with non-tipped staff members such as dishwashers.”[10]  As well, the rule would do away with the “80-20 rule,” which prevents employers from forcing tipped employees (who earn a much lower federal minimum wage than non-tipped employees) from spending more than 20% of their shift performing non-tipped work, such as “rolling silverware or cleaning.”[11]  The rule has been attacked by multiple economists; some of which have stated that, “if finalized,” will cost workers more than $700 million annually”[12]  The Biden administration has yet to announce if they plan to greenlight the “final rule”; however, on January 26, 2021, the administration explicitly ordered the suspension of the “final rule” pending further review.[13]

Another one of the Biden Administration’s hastily taken labor moves was the swift removal of NLRB general counsel, Peter Robb, a 2018 President Trump appointee who refused to resign upon request.[14]  His term was set to run until November; however, he was fired, becoming the first NLRB General Counsel to be released from office prior to the end of his term “in more than half a century.”[15] 

While campaigning, President Biden spent a significant time maligning the Trump administration’s treatment of workers and its labor policies, explicitly stating on his campaign website that “there’s a war on organizing, collective bargaining, unions, and workers,” that’s “been raging for decades, and it’s getting worse with Donald Trump in the White House.”[16]  Such a statement makes clear that the Biden administration’s reversal of Trump administration labor policies should come as no surprise. Even more so, the aforementioned suggests there will only be more significant changes to labor and employment law in the years to come.


[1]See David Well, How has the Trump administration changed labor protections?, BrandeisNOW (Oct. 29, 2020), https://www.brandeis.edu/now/2020/october/election-labor-weil.html; Celine McNicholas, Margaret Poydock, & Lynn Rhinehart, Unprecedented: The Trump NLRB’s attack on workers’ rights, Econ. Pol’y Inst. (Oct. 16, 2019), https://www.epi.org/publication/unprecedented-the-trump-nlrbs-attack-on-workers-rights/.  

[2]See Daily Labor Report, DOL, Independent Agency Regulations Frozen by Biden Memo, Bloomberg l. (Jan. 22, 2021), https://www.bloomberglaw.com/bloomberglawnews/bloomberg-law-news/X5J4JA3S000000?bna_news_filter=daily-labor-report#jcite; Sonal Patel, Biden Effects Regulatory Freeze, Revokes Trump Actions, Rejoins Paris Agreement, Power (Jan. 21, 2021), https://www.powermag.com/biden-effects-regulatory-freeze-revokes-trump-actions-rejoins-paris-agreement/.

[3] See Regulatory Freeze Pending Review, Memorandum for the Heads of Executive Departments and Agencies, 86 Fed. Reg. 17, 7424 (Jan. 28, 2021), https://www.govinfo.gov/content/pkg/FR-2021-01-28/pdf/2021-01568.pdf.

[4] Id.

[5] See Allan S. Bloom, White House “Regulatory Freeze” Memo Dooms DOL Independent Contractor Rule, The Nat’l L. Rev. (Jan. 22, 2021),https://www.natlawreview.com/article/white-house-regulatory-freeze-memo-dooms-dol-independent-contractor-rule.

[6] See Allen Smith, DOL Clarifies Definition of Independent Contractor, SHRM (Jan. 7, 2021), https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/pages/dol-final-rule-independent-contractor.aspx.

[7]See The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions, BidenHarris, https://joebiden.com/empowerworkers/ (last accessed Feb. 7, 2021) ( “The ABC test will mean many more workers will get the legal protections and benefits they rightfully should receive. As president, Biden will work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws.”)

[8]See Tip Regulations under the Fair Labor Standards Act, 85 Fed. Reg. 250, 86756 (Dec. 30, 2020); also see

Final Rule: Tip Regulations under the Fair Labor Standards Act (FLSA),  Dep’t of Labor, https://www.dol.gov/agencies/whd/flsa/tips (last accessed Feb. 7, 2021).

[9] Id.; See also Eric Morath, Restaurants Can Require Servers to Share Tips Under New U.S. Rule, The Wall St. J. (Dec. 22, 2020), https://www.wsj.com/articles/workers-could-be-required-to-share-tips-under-new-u-s-rules-11608662802.

[10] Id.  

[11] See Charles Davis, New Trump rule could cost waiters more than $700 million in lost wages by allowing employers to take more of their tips to pay other workers, Insider (Dec. 23, 2020), https://www.businessinsider.com/restaurants-can-take-now-take-more-of-their-workers-tips-2020-12.  

[12] See Heidi Shierholz & David Cooper, Workers will lose more than $700 million annually under proposed DOL rule, Econ. Pol’y Inst (Nov. 30, 2019),  https://www.epi.org/blog/workers-will-lose-more-than-700-million-dollars-annually-under-proposed-dol-rule/; Charles Davis, New Trump rule could cost waiters more than $700 million in lost wages by allowing employers to take more of their tips to pay other workers, Insider (Dec. 23, 2020), https://www.businessinsider.com/restaurants-can-take-now-take-more-of-their-workers-tips-2020-12.

[13]See James Korte, UPDATE: Biden’s Department of Labor Withdraws Three Trump-Era Opinion Letters, Sherman & Howard (Jan. 27, 2021), https://shermanhoward.com/update-bidens-department-of-labor-withdraws-three-trump-era-opinion-letters/.

[14]Daily Labor Report, Biden Fires NLRB General Counsel After He Refuses to Resign (3), Bloomberg L. (last updated Jan. 20, 2021, 9:42 PM), https://www.bloomberglaw.com/bloomberglawnews/bloomberg-law-news/XC87J9O000000?bna_news_filter=daily-labor-report#jcite.

[15] Id.  

[16] See The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions, BidenHarris, https://joebiden.com/empowerworkers/ (last accessed Feb. 7, 2021).

Union Mail Ballot Voting Amid the Pandemic

By: Thomas Leddy

It would be incredibly difficult to find an industry whose standard operating procedure hasn’t been ravaged by the COVID-19 pandemic and amid this tumult.  In response, The National Labor Relations Board (NLRB) has worked to provide guidance to its officials reviewing union elections.  This guidance came in the form of a decision in November of last year that outlined six pandemic-related situations NLRB officials should consider when determining if a union election can be conducted through mail ballots.[1]  These guidelines came at a crucial time now that, according the decision, 90% of NLRB union elections have been conducted by mail since March.[2]

The first of the six circumstances outlined by the NLRB to justify mail ballot elections was if the NLRB office running an election was operating under “mandatory telework” status, noting that although the board’s offices were operating with permissive telework since June that situation could change.[3]  The next circumstance cited by the NLRB was if the 14-day trend for confirmed COVID-19 cases was increasing or if the 14-day testing positivity rate was 5% or higher in the county where a facility having the election is located.[4]  Another consideration was the inability to set up a physical election site without violating mandatory state or local health orders.  However, the NLRB noted any nonmandatory local guidelines would not be enough justification for mail ballot voting on its own.[5]  The NLRB also determined that an employer refusing to comply with the board’s suggested manual election protocols would be grounds for mail ballot voting, and mail ballot voting could also be based on a current COVID outbreak at a facility.[6]  The final circumstance was a broad, catchall determination that “other similarly compelling consideration” could warrant mail ballot elections and that the previous five circumstances described weren’t “exclusive or exhaustive”.[7]

            The guidelines put forth were recently put into practice in a decision issued by the NLRB in early February.  The decision concerned an employer, Detrex Corporation, contending that notwithstanding the pandemic a manual election was the safe and appropriate means to conduct an election while the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (petitioner) argued that the only appropriate method for voting was by mail.[8]  The board eventually sided with the petitioner, stating that under the six circumstances outlined by the earlier decision that a mail ballot election was appropriate.[9] The 14 day trend for confirmed COVID-19 cases was increasing, and the 14-day testing positivity rate was 5% or higher in Ashtabula, Ohio, two metrics which were aligned with the guidelines set forth by the NLRB.[10]

            The employer, Detrex, argued that the union’s actions of holding in-person meetings without following safety protocols should prevent the union from requesting a mail ballot vote.[11]  While the union denied that such meetings ever took place, the board wasn’t convinced that even if they had that these meetings would have any relevance to their decision at all.[12] The only relevant factor was the fact that Ashtabula’s positivity rate of 9.23% exceeded the 5% minimum the NLRB determined would subsequently require mail ballot voting in union elections.[13]

            The NLRB’s guidelines for determining when to conduct union elections by mail, offers employers and unions a clear framework to determine the form elections should take during the pandemic.  Furthermore, the board’s recent decision in Detrex demonstrates that the six factors are the strongest force when making election determinations, the satisfaction of one being more than enough to justify the move to mail ballots even amid alleged wrongdoing of the union.


[1] Danielle Nichole Smith, NLRB Sets Standard For Mail Elections During COVID-19, Law360 (Nov. 9, 2020), https://www.law360.com/articles/1327184 (last visited Feb. 7, 2021). 

[2] Id.

[3] Id, citing Decisions and Orders of the National Labor Relations Board (N.L.R.B), Aspirus Keweenaw and Michigan Nurses Association, Case 18-RC-263185, (Nov. 9, 2020).

[4] Id.

[5] Id.

[6] Id.

[7] Id, citing N.L.R.B, Case 18-RC-26315, (Nov. 9, 2020).

[8] Decisions and Orders of the National Labor Relations Board (N.L.R.B), Detrex Corporation and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Case 08-RC-269611, (Feb. 5, 2021).

[9] Kevin Stawicki, NLRB Official Says Maskless Meeting Can’t Stop Mail Vote, Law360 (Feb. 5, 2021), https://www.law360.com/employment/articles/1352848/nlrb-official-says-maskless-meeting-can-t-stop-mail-vote (last visited Feb. 7, 2021).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

Judicial Clash: What’s to Follow After Opposing Holdings on the H-1B Visa Suspension

By: John Mariolis

The year of 2020 has been one that will go down in history.  Although that phrase is commonly used in pleasant scenarios, anyone who lives on planet earth will certainly claim otherwise.  The whole world has been faced with the COVID-19 virus, which has caused major lockdowns in cities, states, and countries around the world.[1]  The lockdowns have caused businesses throughout the United States to enter into financial hardship, which has led to many layoffs, and unemployment to skyrocket.[2]  After unemployment reached 14.7 percent[3] President Trump believed action needed to be taken immediately.

To combat unemployment the Trump administration enacted Proclamation 10014, which was later extended by Proclamation 10052.[4]  With the goal of aiding American employees who have faced disruption because of COVID-19, the proclamations suspended and limited the entry of aliens.[5] The Proclamation suspends and limits “ (a) an H-1B or H-2B visa, and any alien accompanying or following to join such alien; (b) a J visa…; and (c) an L visa.”[6]  The goal of the proclamations was too help American workers get back on their feet, but instead it has caused lawsuits by big tech companies and their employees.[7]

There have been two cases that have recently been decided regarding the proclamation. One decision by Judge Jeffrey S. White of the U.S District Court for the Northern California District,[8] and the other decision by Judge Amit P. Mehta of the United States District Court for the District of Columbia.[9]  Judge White granted a preliminary injunction against the proclamation in National Associations of Manufacturers, et al., v. United States of Homeland Security, et al.[10] Among the many factors that helped Judge White reach is decision, one factor was “there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.”[11]

Additionally, Judge White believes that the proclamation did not address the issue, or provide a solution. The lawsuit was brought by National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation and TechNet.[12] These four organizations represent hundreds of thousands of companies, which vary from major technology companies, to manufacturing and pharmaceutical companies.[13]  With the decision of granting the preliminary injunction, the companies represented by these 4 organizations are not limited by the proclamation. [14]

Judge White came to his decision on October 1, 2020, but the previous month another district court judge made a decision with the opposite outcome in mind.[15]  Judge Amit P. Mehta of the United States District Court for the District of Columbia denied granting a preliminary injunction to a group of 169 Indian nationals just a month before Judge White’s decision.[16] Judge Mehta’s reasoning for his decision in Panda et al. v. Wolf, was based on the facts that the ban still exists, and requiring the US Department of State to process the visas “would be an exercise in futility.”[17] 

One issue has now been decided by two different courts, and they have concluded two different holdings. The plaintiffs in Panda et al. v. Wolf have already stated on the record that they are planning an appeal. After reviewing these holdings and the proclamation we are left with several questions.  Were these cases properly decided?  Did President Trump have the power to limit immigration into the United States?  Will there be another extension of the Proclamation, since it expires on December 31, 2020?  Moving forward how will these holdings affect a possible extension of the proclamation? These are questions moving forward that will only be answered by the progression in the United States’ economy and the unemployment rate.


[1] See Ted: The Economics Daily, U.S. Bureau of Labor Statistics,  https://www.bls.gov/opub/ted/ (Last visited Feb. 15, 2021 7:05 PM) (indicating the increase in unemployment on a state to state basis).

[2] Heather Long & Andrew Can Dam, U.S. unemployment rate soars to 14.7 percent, the worst since the Depression era, The Washington Post (May 8, 2020, 5:05 PM), https://www.washingtonpost.com/business/2020/05/08/april-2020-jobs-report/.

[3] Id.

[4]See Proclamation No. 10014, 85 Fed. Reg. 2344 (Apr. 27, 2020); Proclamation No. 10052, 85 Fed. Reg. 38263 (Jun 25, 2020).

[5] See Proclamation No. 10052, 85 Fed. Reg. 38263 (Jun 25, 2020).

[6] Id.

[7] See Panda v. Wolf, No. 20-cv-1907 (APM), 2020 U.S. Dist. LEXIS 169052 (D.D.C. Sep. 16, 2020; see also Nat’l Ass’n of Mfrs. v. United States Dep’t of Homeland Sec., No. 20-cv-04887-JSW, 2020 U.S. Dist. LEXIS 182267 (N.D. Cal. Oct. 1, 2020).

[8] Nat’l Ass’n of Mfrs., 2020 U.S. Dist. LEXIS 182267.

[9] Panda v. Wolf, No. 20-cv-1907 (APM), 2020 U.S. Dist. LEXIS 169052 (D.D.C. Sep. 16, 2020).

[10] Nat’l Ass’n of Mfrs., 2020 U.S. Dist. LEXIS 182267.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Panda v. Wolf, No. 20-cv-1907 (APM), 2020 U.S. Dist. LEXIS 169052 (D.D.C. Sep. 16, 2020).

[16] Id.

[17] Id.

Foul Ball: The Impact of MLB Owners Bad Faith Bargaining of the COVID Season

By: John Margolies

In 2020 the COVID-19 Pandemic swept across the globe, impeding all matters of life.[1] One of the things brought to a halt by the pandemic was Major League Baseball (hereinafter “MLB”).[2] On March 16th, MLB Commissioner Rob Manfred announced his intention to work with the MLB owners and players to ensure that some kind of season was played in 2020.[3] What would ensue over the course of the summer was a heated battle between the MLB owners and the Players Union over what this season would look like.[4] “Nothing was off the table” according to Commissioner Manfred, including radical changes to the manner in which the game is played and also when it would be played.[5] Several proposals went back and forth between the two parties, but underlying the entirety of the negotiations were allegations of bad faith bargaining being conducted by both sides.[6]

Offers went back and forth between the two sides, but at the end of the day, it seemed that the players claims were correct: the owners continuously acted stubbornly and would not budge in negotiations in order to come to an agreement.[7] After ownership time and time again submitted unworkable (and often unchanged) offers to the players union, the players became more and more upset with the ownership and the league.[8] While an agreement was eventually made,[9] the alleged bad faith practices of the Owners proved detrimental to the sport and the business of baseball.[10]

The toxicity and delay tactics of the negotiations degraded national enthusiasm for the sport, as well as prevented it from capitalizing on the opportunity to be the only sport playing over the summer.[11] The owners’ cries of financial losses fell upon deaf ears as the nation as a whole floundered economically, resulting in a very unsympathetic public opinion of the owners practices during the negotiations for the season.[12] But perhaps the biggest impact from the MLB owners poor practices has yet to come; the negotiation of the next collective bargaining agreement.[13] The current agreement between the league and the players expires in December of 2021, and the practices of this past summer have done nothing but amplify the already building tension between the two parties.[14]

While the MLB did play a season in 2020, somehow being able to survive the painstakingly draining negotiations for the season, it has set up an extremely interesting backdrop for which the next collective bargaining agreement will be made.  Simply put, the players frustration and public opinion will do no favors for the owners leverage during negotiations.[15] With many radical ideas on the line (many of which included in the 2020 season), the way in which the owners negotiated will have massive rippling impacts on the sport in decades to come.


[1] See generally World Health Organization, Archived: WHO Timeline Covid-19, (April 7 2020), https://www.who.int/news/item/27-04-2020-who-timeline—covid-19(containing a timeline of the spread of the COVID-19 virus across the globe).

[2] Bill Shakin, Jorge Castllo, MLB Suspends Spring Training Indefinitely Because of the COVID-19 Pandemic, L. A. Times, (Mar. 12, 2020 10:51 AM), https://www.latimes.com/sports/story/2020-03-12/mlb-suspends-spring-training-indefinitely-coronavirus-pandemic.

[3] Dayn Perry, Katherine Acquavella, R.J. Anderson, Timeline of how the COVID-19 pandemic has impacted the 2020 Major League Baseball season, CBS Sports, (July 29, 2020 10:44 AM), https://www.cbssports.com/mlb/news/timeline-of-how-the-covid-19-pandemic-has-impacted-the-2020-major-league-baseball-season/.

[4] Id.

[5] R.J. Anderson, MLB commissioner Rob Manfred vows baseball will return and says ‘nothing is off the table’ for 2020 season, CBS Sports, (Mar. 26, 2020 10:42 AM), https://www.cbssports.com/mlb/news/2020-world-series-mvp-race-why-corey-seager-has-slight-edge-over-dodgers-and-rays-players-for-coveted-award/.

[6] Craig Calceterra, MLB, MLBPA negotiations have turned very, very ugly, NBC Sports, (June 13, 2020 9:10 AM), https://mlb.nbcsports.com/2020/06/13/mlb-mlbpa-negotiations-have-turned-very-very-ugly/.

[7] Mark Powell, MLB owners demonstrating bad faith by calling counter-proposal ‘worst of all time’, Fansided, (July 2020), https://fansided.com/2020/06/18/mlb-owners-bad-faith-deal-worst-of-all-time/.

[8] Bill Baer, MLBPA says ‘players are disgusted,’ accuses MLB of ‘negotiating in bad faith’, NBC Sports, (June 15, 2020 7:18 PM), https://mlb.nbcsports.com/2020/06/15/mlbpa-says-players-are-disgusted-accuses-mlb-of-negotiating-in-bad-faith/.

[9] Ronald Blum, Details of MLB-players’ union agreement on 2020, ’21 seasons, Associated Press, (March 27, 2020), https://apnews.com/article/dd87bcc774d608e53624594fe56fab0c.

[10] See Ben Lindbergh, MLB Is (Maybe) Back. What Now?, Ringer, (June 23, 2020 11:18 PM), https://www.theringer.com/mlb/2020/6/23/21301295/60-game-season-player-owner-agreement.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

The Gig Economy: Modern Technology’s Newest Economic Innovation

By: Zachary Miner

As manufacturing has declined in the United States, the service industry has boomed, and the “gig economy” with it.[1] The gig economy traditionally features workers who bypass full-time employment, instead taking up part time jobs with multiple employers, whether as a result of necessity or choice.[2]  The gig economy, also known as the “sharing economy,” was coined with reference to each individual’s “piece of work” performed as “being akin to an individual ‘gig.’”[3]  The “gig economy” has only come about in modern times, as the advent of smartphones, the internet, and phone applications, has created an environment where patrons can quickly find workers to carry out any task they need performed.[4]  As the gig economy has grown and continually developed, scholars have come to generally recognize two different forms of “gig economy” work: “crowdwork” and “work-on-demand via app.”[5]

Crowdwork

 “Crowdwork” occurs on the internet.[6]  It mostly involves the completion of “microtasks.”[7]  Using “crowdwork,” companies will hire people around the globe remotely to complete generally menial technologically-based assignments in contribution to an overall task/project.[8]  “Crowdwork” “is executed through online platforms that put in contact an indefinite number of organizations, businesses, and individuals through the internet” “connecting clients and workers on a global basis.”[9] 

Work-on-Demand

 On the other hand, “work-on-demand” features the short term hiring of people to carry out everyday tasks, such as laundry, grocery shopping, and transportation, through the utilization of phone applications.[10] “Work-on-demand” operates on a local basis and has seen use skyrocket in recent years as application based technology has developed and improved.[11]  Two examples of companies that fall within the “work-on-demand” category are the rideshare services, Uber and Lyft.[12]  Another example of a “work-on-demand” company is the food transportation service, Grubhub.[13]

Conclusion

As a result of the “gig economy’s” growth,  services such as Uber, Grubhub, and Lyft have become immensely popular.[14]  However, the “gig economy’s” growth has come at the expense of other industries, such as the taxicab.[15]  Furthermore, the “gig economy” has presented unique jurisdictional regulatory challenges, particularly as to whether its workers should be classified as employees or independent contractors.[16]  Thus, while the “gig economy” has undoubtedly had positive effects on American society, only time will determine whether these effects remain positive in the years to come.


[1]  Alex Kirven, Comment: Whose Gig Is It Anyway? Technological Change, Workplace Control And Supervision, And Workers’ Rights In The Gig Economy, 89 U. Colo. L. Rev. 249, 256 (2018).

[2] Id. at 257.

[3] Nicole Kobie, What is the gig economy and why is it so controversial?, Wired (Sep. 14, 2018), https://www.wired.co.uk/article/what-is-the-gig-economy-meaning-definition-why-is-it-called-gig-economy.

[4] See Valerio De Stefano, The Rise of the “Just-In-Time Workforce”: On-Demand Work, Crowdwork, and Labor Protection in the “Gig-Economy, 37 Comp. Lab. L. & Pol’y J. 471, 474 (2016).

[5] Id. at 471.

[6] Id.

[7] Id. at 474.

[8] Id.

[9] Id.

[10] See generally Max Falb, When Your Phone is Your New Boss, Fueled (Mar. 8, 2020), https://fueled.com/blog/on-demand-apps-make-money-2/; see also What exactly is the gig economy?, Randstad (June 8, 2020), https://www.randstad.com/workforce-insights/future-of-work/what-exactly-gig-economy/ (pointing out that “the gig economy operates by offering marketplaces based on ratings and payment systems routed through apps”).

[11] Valerio De Stefano, The Rise of the “Just-In-Time Workforce”: On-Demand Work, Crowdwork, and Labor Protection in the “Gig-Economy, 37 Comp. Lab. L. & Pol’y J. 471, 474 (2016).

[12]Randstad, supra note 10 (stating that the on-demand economy “is embodied by companies like Uber”).

[13]See Luke Winkie, An interview with someone who’s worked for every gig economy app you can think of, Vox (May 15, 2018, 8:00 AM), https://web.archive.org/web/20190923004928/https://www.vox.com/the-goods/2019/5/15/18623161/uber-lyft-lime-grubhub-gig-economy-app-worker.

[14] Special to The Enterprise, 5 reasons ridesharing is on the rise, Enterprise (Feb. 24, 2017), https://www.davisenterprise.com/business/auto/5-reasons-ridesharing-is-on-the-rise/.

[15] Winnie Hu, Uber, Surging Outside Manhattan, Tops Taxis in New York City, N.Y. Times (Oct. 12, 2017), https://www.nytimes.com/2017/10/12/nyregion/uber-taxis-new-york-city.html; Ridesharing Grows Strongly In 2017; The Battle Between Uber and Lyft Rages On, SharesPost Blog (Feb. 21, 2018), https://sharespost.com/insights/articles/ridesharing-grows-strongly-in-2017-the-battle-between-uber-and-lyft-rages-on/.

[16] See generally Kirven, supra note 1; See FedEx Ground Package Sys., 758 F. Supp. 2d 638 (N.D. Ind. 2010) ( “Resolution of employment status at common law doesn’t allow for bright-line rules.”); Cotter v. Lyft, Inc., 60 F. Supp. 3d 1067 (N.D. Cal. 2015); Razak v. Uber Techs., Inc., No. 16-573, 2018 U.S. Dist. LEXIS 61230 (E.D. Pa. 2018) (“Transportation network companies (“TNCs”), such as Uber and its most frequent U.S. competitor, Lyft, present a novel form of business…[w]ith time, these businesses may give rise to new conceptions of employment status.”); Narayan v. EGL, Inc., 616 F.3d 895, 900 (9th Cir. 2010) (“Ultimate conclusion as to whether workers are employees or independent contractors’ is [not] one of law” and “subject to legitimate dispute.”).

Employer’s Dirty Laundry: How CVS Could be Facing a Class Action Lawsuit in New York

By: Thomas Leddy

A former minimum wage employee of CVS Pharmacy Inc., Ahkilah Benjamin, has brought a complaint alleging that she and other CVS employees were required to wear uniforms bearing the company’s logo without being compensated for laundering the uniform.[1]  Ms. Benjamin only worked at a Manhattan CVS from February through October of 2019 but her complaint alleges that a proposed class could consist of all former and current CVS employees paid minimum wage working in the state of New York from March 20, 2014 up until the present.[2]  Thousands of former and current employees could be eligible to join this proposed class.[3]

Ms. Benjamin’s and the proposed class’ claim arises out of an alleged failure of CVS to comply with the uniform maintenance allowance provision of NYCRR § 142-2.5.[4] Benjamin believes that a class action is the appropriate means to adjudicate the controversy due to the small size of each individual claim and the large number of potential claimants.[5] The relevant section of the statute outlines different levels of compensation employers owe their minimum wage employees to launder their required uniforms in addition to their minimum wage based on the amount of hours worked “where employees who work over 30 hours per week shall be paid the High rate, employees who work more than 20 hours but fewer than 30 hours shall be paid the Medium rate and employees who work 20 hours or fewer shall be paid the Low rate.”[6] 

In addition to differing rates of allowance based on the amount of hours worked each week, the statute also provides for different values depending on the size of the employer and where in the state the work was performed with New York City receiving the largest allowances up to an additional $18.65, and with other counties earning less and less the further upstate.[7] With CVS being a large employer and Ms. Benjamin working in New York City, she believes she is entitled to damages up to $18.65 per week she was employed with other members of the class earning anywhere from $4.75 to $18.65.[8] Although each individual claim of damages may be relatively small, totaling the amount of damages between about $5 to $20 per week depending on year and location among thousands of former and current employees, the authorization of the proposed class could present a huge financial loss for CVS.[9]

The complaint submitted by the plaintiff doesn’t specify the exact parameters of the uniform CVS has required its employees to wear without providing pay laundering means other than the fact that the uniform had the company’s logo on it.[10]  Under the statute, the question of what constitutes a uniform has a rather broad array on answers.  The statue itself defines a required uniform as “clothing worn by an employee, at the request of the employer, while performing job-related duties or to comply with any State, city or local law, rule or regulation” and excludes “clothing that may be worn as part of an employee’s ordinary wardrobe.”[11]  In the case of De La Cruz Moreno v. Happy Angel Nail Spa Inc., the United States District Court for the Southern District of New York determined that an apron, gloves, and masks constituted a uniform.[12] 

While the lawsuit is still in its infancy, and it is worth noting that the statute of limitations remains tolled due to COVID measures, the potential additional costs levied on employers such as CVS may motivate them to rethink their uniform policy. It may be wise for them to no longer provide uniforms and instead require formal clothing which wouldn’t fall under the language of the statute. Or perhaps they may increase the wages of their employees to be just above the minimum wage to escape the coverage of the statute in that way. Either way, should the proposed class be authorized and the lawsuit continue, it is likely that CVS stores will conduct their business differently in the future.


[1] Alexis Shanes, CVS Allegedly Owes NY Workers For Uniform Laundry Costs, Law360 (Oct. 30, 2020), https://www-law360-com.ezproxy.hofstra.edu/employment/articles/1324608/cvs-allegedly-owes-ny-workers-for-uniform-laundry-costs.

[2] Id. Complaint at 3, Ahkilah Benjamin v. CVS Albany LLC et al, Sup. Ct. N.Y. Co. (2020), (No. 159244/2020).

[3] Shanes, supra note 1.

[4] Complaint at 3, Benjamin v. CVS.

[5] Id at 6.

[6] N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.5(c) (2016).

[7] Id at § 142-2.5(c) (1)-(3).

[8] Shanes, supra note1

[9] Shanes, supra note1

[10] Complaint at 6, Benjamin v. CVS.

[11] N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.22 (2016).

[12] De La Cruz Moreno v. Happy Angel Nail Spa Inc., 2019 WestLaw 2438966, at 5-6 (S.D.N.Y. June 12, 2019).