Kicking off Equality in Canada Soccer

By Jillian Cammer

Canada’s soccer team is making international headlines – this time for their clothes.^[1] Ahead of the SheBelieves Cup, the team is protesting pay inequality and unequal treatment with inside-out warmup shirts, flipping them to conceal the Canadian logo.^[2] Not long ago, the team was making headlines for their showing in the Tokyo Olympics, in which they brought the gold back to Canada.^[3] Later, in their opening game, the team chose to wear purple shirts conveying the words “enough is enough” before taking the field.^[4]

The tension began earlier this year when Canada Soccer announced significant budget cuts to the national team’s program.^[5] Responding on Twitter, the team argued that the cuts were just in time for the approaching Women’s World Cup – an obstacle the men’s team didn’t face in last year’s Men’s World Cup.^[6] “Now that our World Cup is approaching, the Women’s National Team players are being told to prepare to perform at a world-class level without the same level of support that was received by the Men’s National Team in 2022…to simply make do with less.”^[7] Reports show that Canada Soccer spent $11 million on the men’s team and $5.1 million on the women’s in 2021.^[8]

As a result, the team had originally planned a strike for the upcoming SheBeleives Cup.^[9] Threatened with reports of legal action, the players attended SheBeleives Cup amid the threat of monetary damages – albeit with a less-than-formal wardrobe.^[10] The planned strike was met with scrutiny from Canada Soccer, who cited its illegality according to Ontario Labor Law.^[11]

Without compensation for 2022, the women’s national team, represented by the Canadian Soccer Players Association Union, has been engaged in collective bargaining with Canada Soccer for over a year.^[12] In Ontario, the parties negotiating under collective bargaining fall under the Labour Relations Act.^[13] The law is clear that while under a collective bargaining agreement, strikes are unlawful.^[14] However, this changes under the Act, where “No collective agreement is in operation, no employee shall strike…until the Minister has appointed a conciliation officer.”^[15] The officer then may subjectively issue a “no board report” upon conclusion parties are not ready for a collective agreement.^[16]  Notably, the act also issues that “no employee shall threaten an unlawful strike.”^[17]

Reportedly, the union requested a “no board report,” which, if issued, allowed for a 17-day countdown before the union may be in a legal position to strike.^[18] However, no confirmation of issuance was reported before the players took to Twitter to retract the strike under threat of a lawsuit.^[19]

The Men’s national team, as well as prominent American players such as Megan Rapinoe, have put out statements in support and pointed out Canada’s bid to co-host the 2026 Men’s World Cup, asking for the Minister of Sport to intervene.^[20] “Treat your world-class players as world-class.”^[21]  Canada Soccer has since been asked to a meeting at the House of Commons Heritage Committee, which reviews, inter alia, policies surrounding sports initiatives and is made up of members of the sitting parliament who will make recommendations to the current government over these very allegations.^[22]

As the legal dispute draws out, support for the team has been ramping up. “What do they have to do, win a gold medal? Sell out stadiums? Oh wait…It’s 2023, wake up @CanadaSoccerEn you’re on the clock.”^[23] With protests developing and the option to strike still a contender for the future, time will tell who will emerge the champion in Canadian women’s soccer.

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^[1] Neil Davidson, Canadian Women Make Gender Equality Statement, CBC (Feb. 16 2023), https://www.cbc.ca/sports/soccer/canada-united-states-shebelieves-cup-labour-distractions-1.6751486.

^[2] Id.

^[3] Id. 

^[4] Id.

^[5] Ameé Ruszkai, Canada Soccer Vs Canada Women’s Team: Strike Threats For SheBeleives Cup & Legal Dispute Explained, Goal (Feb. 16, 2023), https://www.goal.com/en-us/news/canada-soccer-vs-canada-women-strike-threats-shebelieves-cup-legal-dispute-explained/blt4d1b06c435d1f3d3.

^[6] @PlayersCanadian, TWITTER (Feb. 10, 2023, 4:35 PM),

The time is now, we are taking job action. pic.twitter.com/QbVbhTcdDU

— CanadianSoccerPlayers (@PlayersCanadian) February 10, 2023

^[7] Id.

^[8] Neil Davidson, Liberal MP Wants To Expedite Having Canada Soccer Before Parliamentary Committee, CBC (Feb. 13, 2023), https://www.cbc.ca/sports/soccer/canada-soccer-women-liberal-mp-parliamentary-committee-1.6747190.

^[9] Ruszkai, supra note 4.

^[10] Id.

^[11] Canada Soccer Statement, Canada Soccer (Feb. 11, 2023), https://www.canadasoccer.com/news/20230211-canada-soccer-statement/.

^[12] Ruszkai, supra note 4.

^[13] Labour Relationship Terms, Laurentian University Faculty Association, https://www.lufappul.ca/?page_id=186 (last visited Feb. 18, 2023).

^[14] Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A.

^[15] Id.

^[16] Labour Relations Act, supra note 13; see also Collective Bargaining, Ontario, https://www.ontario.ca/page/collective-bargaining (last visited Feb. 18, 2023); Labour Relationship Terms, supra note 11.

^[17] Labour Relations Act, supra note 13.

^[18] Rick Westhead, Canada Soccer Threatens To Sue Players Over Job Action: Sources, TSN (Feb. 11, 2023), https://www.tsn.ca/soccer/canada-soccer-threatens-to-sue-players-over-job-action-sources-1.1918073.

^[19] Ruszkai, supra note 4.

^[20] See @rwesthead, Twitter (Feb. 10, 2023, 5:59 PM),

https://twitter.com/rwesthead/status/1624181389502427138?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1624181389502427138%7Ctwgr%5Ed453019bcbd7f70089d299b7841b45cfac5d3324%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.goal.com%2Fen-us%2Fnews%2Fcanada-soccer-vs-canada-women-strike-threats-shebelieves-cup-legal-dispute-explained%2Fblt4d1b06c435d1f3d3; Ruszkai, supranote 4.

^[21] Ruszkai, supra note 4.

^[22] About: Standing Committee On Canadian Heritage, Parliament of Canada House of Commons, https://www.ourcommons.ca/Committees/en/CHPC/About (last visited Feb. 18, 2023); see also Neil Davidson, Liberal MP Wants To Expedite Having Canada Soccer Before Parliamentary Committee, CBC (Feb. 13, 2023), https://www.cbc.ca/sports/soccer/canada-soccer-women-liberal-mp-parliamentary-committee-1.6747190.

^[23] @alexmorgan13, Twitter (Feb. 10, 2023, 5:07 PM), https://twitter.com/alexmorgan13/status/1624168203914993687?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1624168203914993687%7Ctwgr%5Ed453019bcbd7f70089d299b7841b45cfac5d3324%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.goal.com%2Fen-us%2Fnews%2Fcanada-soccer-vs-canada-women-strike-threats-shebelieves-cup-legal-dispute-explained%2Fblt4d1b06c435d1f3d3.

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Does Your Company’s Pizza Party Violate OSHA?

By: Emily Manning 

The Occupational Safety and Health Administration (OSHA) posted a Tweet back in January with the following question: “Is your pizza party incentive program unreasonable?”^[1] Everyone loves a classic pizza party, but this tweet has incited a myriad of questions in terms of its legalities.^[2] A safety incentive program encourages or rewards workers for reporting injuries, illnesses, near-misses or hazards, and rewards worker involvement in the safety and health management system.^[3] Employers reward and recognize their employees for safe behavior through things like gift cards, extra days off, or even monetary awards.^[4] But why should employers be incentivizing health and safety measures that they should be doing anyways?^[5] This all may seem unnecessary at times, but it’s hard to argue with these incentives when they actually work.^[6]    

            Back in 2021, the state of Ohio announced its Vax-a-Million promotion.^[7] Those who received the COVID-19 vaccine were automatically entered into a drawing to win up to $1 million.^[8] Vaccinations in Ohio were up by a third after this incentive program was announced.^[9] In a study concerning construction companies, those who had a safety incentive program had a 44% reduction in their injury rates.^[10] Comparing this to a construction company without a safety program, they had a 42% increase in injuries.^[11] Incentives like this are proven to work, but on the other hand, they can also act as disincentives for injury reporting and decreased reporting is seen to increase accident risk.^[12] For reasons like this, OSHA has not made their position on safety incentives programs entirely clear.^[13]

            OSHA first released guidance concerning safety incentive programs back in 2012.^[14] Here, they claim that reporting a work-related injury/illness is a core right and go on to list various policies and practices that might be discriminatory for those who do report injuries.^[15] For example, “an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time.”^[16] OSHA states this type of program may be well-intentioned, but there are better ways to encourage safe work practices, such as a program that encourage workers to identify such hazards.^[17]  

A more recent statement on the issue was released in 2018.^[18] Here, OSHA seems to touch on the revered pizza party issue by stating that programs like this are considered a rate-based incentive and are allowable under § 1904.35(b)(1)(iv) as long it is not executed in a way that discourages reporting.^[19] They elaborate by stating:  

“Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”^[20]

Looking back to the recent tweet from OSHA regarding pizza parties, it is even more unclear where they stand.^[21] This tweet seems to deviate from the 2018 guidance because it states that such programs are unreasonable if 1) it denies benefits/bonuses to employees based on reported injuries or is related to recordable injury rates 2) “[e]xclude[s] workers who report injuries from prizes or awards” or 3) “[p]rovide[s] rewards or parties for workers or crews who remain injury free.”^[22] This suggestion may seem to contradict formal guidance from OSHA by stating that withholding participation in a pizza party for someone who reports an injury could be a violation.^[23] More guidance is needed to ensure correct adherence to these confusing regulations, but until then, employers might want to cut back on the pizza parties to avoid violations.^[24]     

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^[1] OSHA DOL (@OSHA_DOL), Twitter (Jan. 13, 2023, 2:02 PM), https://twitter.com/OSHA_DOL/status/1613974688337633280?cxt=HHwWgICx7bDb_uUsAAAA  

^[2] John Surma, OSHA Serves Up a Slice of Confusion: Can an Employer’s Pizza Party Workplace Safety Incentive Program Be ‘Unreasonable’?, Olgetree Deakins (Feb. 7, 2023), https://ogletree.com/insights/osha-serves-up-a-slice-of-confusion-can-an-employers-pizza-party-workplace-safety-incentive-program-be-unreasonable/

^[3] R. Scott Russel, OSHA Compliant Safety Incentives: Why is Workplace Safety So Important?, C.A. Short (June 16, 2020), https://www.cashort.com/blog/why-is-workplace-safetyimportant#:~:text=What%20Is%20A%20Safety%20Incentives,safety%20and%20health%20management%20system

^[4] Haddy Rojas, Safety Recognition Incentive Programs May Be the Key, National Safety Council,

 https://www.nsc.org/getmedia/73deb8df-e9ec-43e4-af8a-d13073bde4fc/incentive-programs-haddy-rojas.pdf (last visited Feb. 12, 2023).

^[5] Connor Michael, Doughnuts, Pizza, and Free Beer: What Vaccine Incentives Say About Safety, The Laboratory Safety Institute (June 18, 2021), https://www.labsafety.org/doughnuts-pizza-and-free-beer-what-vaccine-incentives-say-about-safety  

^[6] Id.

^[7] Ohio’s Final Vax-a-Million Drawing Winners Announced, Ohio Department of Health (June 23, 2021),

https://odh.ohio.gov/media-center/odh-news-release-06-23-21

^[8] Id.  

^[9] Id.  

^[10] Paul Goodrum, Safety Incentives A study of their effectiveness in construction, Professional Safety, page 30 (September 2010).  

^[11]  Id.

^[12] Michael, supra note 5.

^[13] Surma, supra note 2.

^[14] Memorandum from Richard E. Fairfax, U.S. Department of Labor (Mar. 12, 2012) (on file with the U.S. Department of Labor).

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Memorandum from Kim Stiles, U.S. Department of Labor (Oct. 11, 2018) (on file with the U.S. Department of Labor).

^[19] Id.

^[20] Id.

^[21] Surma, supra note 2.

^[22] OSHA DOL, supra note 1.

^[23] Surma, supra note 2. 

^[24] Id.

Long Overdue: Congress Delivers Maternal Protection with the Pregnant Workers Fairness Act

By: Amber Makda 

The Pregnant Workers Fairness Act (”PWFA”) is designed to protect employees and applicants experiencing pregnancy-related medical conditions or limitations from being denied reasonable accommodations in the workplace.^[1]  The law is distinct from its predecessors, filling in the gaps left by the Americans with Disabilities Act (“ADA”) and Pregnancy Discrimination Act (“PDA”) by codifying protections not expressly mentioned in either piece of legislation.^[2]  Under the PDA, employers need only provide accommodations to pregnant employees when other similarly situated employees are granted accommodations.^[3]  In effect, the PDA fails to realize that pregnancy calls for unique accommodations; not merely the same treatment as other conditions.^[4]  The ADA also leaves pregnant women largely unprotected, as pregnancy is neither listed or interpreted as pregnancy as a disability.^[5]  However, a limited number of pregnancy-related impairments might qualify under the ADA as disabilities, enabling employees who have been refused reasonable accommodations to seek redress under the statute.^[6]  In effect, the PWFA essentially mirrors protections afforded by the ADA, instead applying to pregnant employees.^[7]

The PWFA requires employers to provide reasonable accommodations to employees experiencing medical conditions related to pregnancy, lactation, and child-birth, except when doing so would impose undue hardships upon the employer.^[8]  Any determination concerning reasonable accommodations must be preceded by an “interactive process,” requiring a good-faith conversation between the employer and the employee seeking an accommodation.^[9]  Employees cannot be forced to accept accommodations that are unreasonable, or be required to take leave if providing accommodation is possible and does not pose an undue burden to the employer.^[10] Employers are also barred from denying employees other opportunities necessitating accommodations when their denial is based on a desire to not accommodate the employee, as opposed to a true undue hardship.^[11]  Further, covered employees are also protected from retaliatory actions arising out of their requests for reasonable accommodation or participation in a protected activity.^[12]

The PWFA applies to public and private sector employers with more than 15 employees, and all government employers.^[13]  Damages for violations may include front and back pay, compensatory and punitive damages, attorneys’ fees, and reinstatement, if elected.^[14]  The PWFA will be enforced by the Equal Employment Opportunity Commission (“EEOC”), which will begin reviewing PWFA-related charges on June 27, 2023.^[15]  In the interim, employees can continue to seek redress for perceived unlawful pregnancy-related employment actions under Title VII of the Civil Rights Act of 1964, or the ADA.^[16]

The EEOC is expected to issue regulations illustrating examples of reasonable accommodations within one year of enactment, subject to review before later finalization.^[17]  However, in the absence of formal guidance from the EEOC, the House Committee on Education and Labor Report on the PWFA has provided examples of reasonable accommodations, including: “seating; water; closer parking; flexible hours; appropriately sized uniforms and safety apparel; additional breaktime to use the bathroom, eat, and rest; excusing the worker from strenuous activities; and excusing the worker from activities that involve exposure to compounds not safe for pregnancy.”^[18]

Before the PWFA takes effect, employers should take steps to ensure their policies reflect that pregnancy, lactation, and child-birth related medical conditions are listed as grounds for reasonable accommodations.^[19]  Further, employers should hold trainings for staff in supervisory positions detailing guidelines for appropriate interactions with protected staff under the PWFA.^[20] This is especially important for preparedness during the “interactive process,” a prerequisite conversation to the approval or denial of accommodations.^[21]

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^[1] Pregnant Workers Fairness Act, 117 S. 4431, 117th Congress, 2nd Session (2022).

^[2] See Renee Chacko, Special Delivery: Pushing For Pregnant Workers Fairness Rights, 37 J. Legal Medicine, 195, 196 (2017).

^[3] See id.

^[4] See id.

^[5] See 42 USCS § 12102; see Matthews v New Light, Inc., 2022 US Dist LEXIS 191346 (W.D. Pa. Oct. 20, 2022, Civil Action No. 22-427) (“although complications and impairments caused by pregnancy may constitute a disability under the ADA, pregnancy alone is not a disability within the meaning of the ADA”) (internal citations omitted). 

^[6] See Varone v. Great Wolf Lodge, No. 15-304, 2016 U.S. Dist. LEXIS 47867, 2016 WL 1393393, *3 (M.D. Pa. Apr. 8, 2016) ( “[a]lthough pregnancy is not an impairment within the meaning of the ADA and is never a disability on its own, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA”).

^[7] See Pregnant Workers Fairness Act, supra note 1 (mirroring the language and provisions of the Americans With Disabilities Act, including “reasonable accommodations”). 

^[8] See Pregnant Workers Fairness Act, supra note 1 at § 3.

^[9] See id. at § 2(7); see Christine Gant-Sorenson, What do the Pump Act and PWFA Mean for Employers?, Haynsworth Sinkler Boyd (Feb. 8, 2023) https://www.hsblawfirm.com/Connect/Blog/2023/What-do-the-PUMP-Act-and-PWFA-mean-for-employers.

^[10] See Pregnant Workers Fairness Act, supra note 1 at § 3(4).

^[11] See id. at 3(3). 

^[12] See id. at 3(5); see What You Should Know About the Pregnant Workers Fairness Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last accessed Feb. 18, 2023). 

^[13] See Pregnant Workers Fairness Act, supra note 1 at § 2(2).

^[14] See id. at § 4. 

^[15] See id. at § 2(1); see What You Should Know About the Pregnant Workers Fairness Act supra note 12. 

^[16] See What You Should Know About the Pregnant Workers Fairness Act supra note 12. 

^[17] See id. 

^[18] H.R, 117th Cong., Rep No. 117-27 at 11 (2021) https://www.congress.gov/congressional-report/117th-congress/house-report/27/1?overview=closed.

^[19] See What You Should Know About the Pregnant Workers Fairness Act, supra note 12.

^[20] See id.

^[21] See id.

Being Black in the Workplace: The CROWN Act and its Protection of Cultural Expression

By: Diandra Burton 

Over the past few years, social media has been inundated with videos and stories of black hair being policed in all areas of everyday life, including both school and the workplace.^[1]  Whether an individual’s hair is in locs, braided, or natural, these hairstyles have been highly monitored.^[2]  As stated by Rep. Ayanna Pressley, a national leader in promoting CROWN Act legislation, “For too long, black girls have been discriminated against and criminalized for the hair that grows on our heads and they way we move through and show up in this world.”^[3]  While black hair is often associated with uniqueness and creativity, many black employees who choose to wear their hair in the creative and cultural way mentioned supra are subjected to discipline at the hands of their employers.^[4]  A study conducted in 2019 by JOY Collective found that black women were 80% more likely to feel pressure to change their hairstyles in order to fit in at the office.^[5]  

In addition to being an outlet for creativity, the hairstyles black employees choose to wear can have deeper cultural implications in addition to religious significance.^[6]  As a result of the unfair discipline black employees have faced in choosing to wear their hair in natural styles, California, along with other states following its lead, passed the CROWN Act.^[7]  The CROWN Act, (Create a Respectful and Open World for Natural Hair) provides protection to those who face race-based discrimination in the workplace.^[8]  The Act protects individuals from being let go, fired, or being excluded from schools and other places of business based on the style of their hair.^[9]  

In 2019, California and other states, including New York, New Jersey, Virginia, Colorado, Washington, and Maryland, recognized the need for this Act and adopted it as a full and understood law.^[10]  Other states including Georgia, Florida, and Arizona were amongst the second wave of states that continued to support the validity of this Act by introducing CROWN legislation in their respective state legislatures.^[11]  The Act gained federal recognition when passed by the House on March 18, 2022.^[12]  The bill specifically mentions the prohibition of discrimination based on a person’s hair texture with regard to employment.^[13]  The Dove study mentioned supra found that black women are made to be more aware of corporate grooming practices than white woman.^[14]  In addition, the study found that black women’s hair is more policed in the workplace and ultimately contributes to a “a climate of group control” in the company culture and can be perceived as a professional barrier.^[15]  In terms of “corrective action” within the workplace, black women are 1.5 times more likely to be sent home from their place of work because of their hair.^[16]

While the Act is currently in the hands of the Senate, the passage of the Bill would make hair discrimination based on texture of natural hair illegal under Titles VI and VII of the Civil Rights Act of 1964,^[17] and allow for black employees to engage in the creativity held close to many without the fear of an adverse employment action that could be as severe as termination.^[18]

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^[1] Angela Onwuachi-Willig, POV: Why the CROWN Act is Needed, BU Today (July 26, 2022), https://www.bu.edu/articles/2022/why-the-crown-act-is-needed/.

^[2] Odhi Empowers, The Importance of the Crown Act, Odhi (Jan. 28, 2021), https://www.odihi.com/post/the-importance-of-the-crown-act?gclid=CjwKCAiA0JKfBhBIEiwAPhZXDxBCEDSlNWSUznB2bp1W08G_0LvaM0xpUKvDbzA_Kw1RaOdM-jnClhoC_-8QAvD_BwE

^[3] Jaclyn Diaz, The House Passes the CROWN Act, a Bill Banning Discrimination on race-based hairdos, NPR (Mar. 18, 2022), https://www.npr.org/2022/03/18/1087661765/house-votes-crown-act-discrimination-hair-style.

^[4] The Crown Research Study, Dove, https://static1.squarespace.com/static/5edc69fd622c36173f56651f/t/5edeaa2fe5ddef345e087361/1591650865168/Dove_research_brochure2020_FINAL3.pdf (last visited Feb. 9, 2023). 

^[5] See Diaz supra note 3. 

^[6] See Odhi supra note 2. 

^[7] See Odhi supra note 2.

^[8] See Odhi supra note 2.

^[9] See Odhi supra note 2.

^[10]See Odhi supra note 2.

^[11]See Odhi supra note 2.

^[12] H.R.2116, 117^th Cong. (2021-2022). 

^[13] Id. 

^[14] See The Crown Research Study supra note 4.

^[15] See The Crown Research Study supra note 4. 

^[16] See The Crown Research Study supra note 4. 

^[17] The CROWN Act, Dove, https://www.dove.com/us/en/stories/campaigns/the-crown-act.html?gclid=CjwKCAiA0JKfBhBIEiwAPhZXD7AOy10zOIHK8_lOMvHaQVrwcg_szpmj3C-d15ad6j_sZB7FvPImghoCCbQQAvD_BwE&gclsrc=aw.ds (last visited Feb. 9, 2023). 

^[18] Id. 

New York’s Plans to Protect Employees in 2023

By: Megan Beloff

Employee rights has moved into focus across the country over the past few years.^[1]  Many states are implementing laws to address a variety of issues employees face in the workplace ranging from employee privacy to attendance policies in the workplace.^[2]  In 2023, New York has pushed employee rights further through the expansion of paid family leave as well as removing no fault attendance policy from New York businesses.^[3]

As of January 1, 2023, New York expanded the New York paid family leave law.^[4]  N.Y. has had some of the nation’s strongest worker protection laws and this addition only furthers its goal to protect state employees.^[5]  The law was signed into place by Governor Hochul in order to allow employees to take paid family leave to care for “siblings with serious health conditions.”^[6]  For the purposes of the act, sibling is defined as “a biological or adopted sibling, half-sibling or stepsibling.”^[7]  Prior to this amendment, the paid family leave law applied to “spouses, domestic partners, children stepchildren, parents, parents-in-law, grandparents and grandchildren.”^[8]  With this addition, employers will need to ensure that their policies reflect the change to avoid potential issues in the future. 

            Along with this law, New York has also implemented the Protection Against Lawful Absences From Work.^[9]  This law was signed in on November 21, 2022 by Gov. Hochul, but will not go into effect until February 19, 2023.^[10]  This amendment to Section 215 of the New York Labor law is made to target “no-fault attendance rules.”^[11]  These kinds of rules create a “points-based attendance” policy in which employee’s incur points, and if they rack up a specific number of “penalty points,” the employee could be either disciplined or even discharged.^[12]  These points are accrued over a period of time, and it is irrelevant what the employee’s reason for absence is:^[13] “This type of policy doesn’t differentiate between something like jury duty, which New York employers are required to provide time off for, and accrued vacation days, which are not mandated by law.”^[14]  This is an issue for a lot of employees because it can lead them to believe that they may not take time off even when it is legally protected under federal and state laws: “Family and Medical Leave Act, Americans with Disabilities Act, New York Paid Family Leave Law, New York State Paid Sick Leave Law and New York City Earned Safe and Sick Time Act.”^[15]  

This law will  make sure that employers can’t “threaten, penalize, or in any other matter discriminate or retaliate” against their employees for protected acts stated above.^[16]  It also states that “employers may not assess any demerit, occurrence, or any other point, or deduction from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”^[17]

            The implementation of these laws in early 2023 show the direction New York, and hopefully the rest of country, will continue to move in.  These two acts, when considered together, will expand employee rights in the workplace while also ensuring that these rights are protected.^[18]  The Paid Family Leave Act will allow families across New York to have the opportunity to properly care for their families.^[19]  And, due to the protections implemented against absences from work, these employees will not have to fear repercussions at work for lawful absences.^[20]  

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^[1] New York Paid Family Leave Updates for 2023, New York State, https://paidfamilyleave.ny.gov/2023; Robert Holtzman and Rachel A. Schuman, Developments in Employment Law as We Head into 2023, JDSupra, (Dec. 22, 2022) https://www.jdsupra.com/legalnews/developments-in-employment-law-as-we-5604964/; Leah Shepard, New York Bill Would Curtail No-Fault Attendance Policies, SHRM (August 29, 2022), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-no-fault-attendance-policies.aspx.

^[2] Id.

^[3] Id.

^[4] See Holtzman supra note 1; State Session Laws – New York, 2021 vol. 1, 1442 (2021) Chapter 551.

^[5] See New York Paid Family Leave Updates for 2023, supra note 1. 

^[6] Supra note 3. 

^[7] Id.

^[8] Id.

^[9] See Holtzman supra note 1; Leah Shepard, New York Bill Would Curtail No-Fault Attendance Policies, SHRM (August 29, 2022), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-no-fault-attendance-policies.aspx.

^[10] Id.

^[11] N.Y. Lab. L. § 215; see supra note 8. 

^[12] Id.

^[13] Id.

^[14] Id.

^[15] Id.

^[16] See Holtzman supra note 8.

^[17]

^[18] See supra note 1.

^[19] See New York Paid Family Leave Updates for 2023 supra note 1.

^[20] See Shepard supra note 1.

A New Standard for Workplace Religious Accommodations is on the Horizon in 2023

By: Lindsey Barrett-Coimbra

As we move into 2023, the year is shaping up to be a significant one for religious rights in the workplace. This is due to a case currently before the Supreme Court, Groff v. DeJoy, which could potentially overturn a landmark ruling from 1977, Trans World Airlines v. Hardison.^[1]  In what some are calling an act of judicial activism, several justices have recently hinted at their desire to revisit this decades-old case standard, which established how employers balance their business needs with the religious beliefs of their employees.^[2]

Currently, religious accommodations in the workplace are governed by Title VII of the Civil Rights Act of 1964.^[3] This law requires employers to make changes to job duties, dress code, and scheduling policies that conflict with an employee’s religious belief, unless doing so would cause an undue hardship for the employer.^[4]  There is currently no legal requirement that the employee prove the sincerity of their belief.^[5]

 The standard for determining undue hardship came from the Hardison decision, which held that an employer does not have to make such an accommodation if it would present them with more than a “de minimis” cost.^[6]  In other words, employers must attempt to accommodate their employees’ religious beliefs unless it would impose more than a minimal burden on the employer.^[7]  It is a relatively low burden that has been criticized by organizations seeking to expand workplace religious liberties.^[8]  Examples of the types of burdens under which an employer can refuse a request include increased safety risks, decreased efficiency, significant financial costs, or a violation of a union agreement.^[9]

When the Supreme Court hears oral arguments later this year, the DeJoy case will address whether the Hardison standard is indeed the correct test for undue hardship under Title VII.^[10]  If it is overturned, the outcome could have far-reaching implications for how employers accommodate their employees’ religious practices and beliefs.^[11]

An example of the potential impact of the overturn of the Hardison standard can be seen in the ongoing cases filed by religious healthcare practitioners against CVS.^[12]  In one of these cases, the plaintiff claimed that her Christian faith prevented her from prescribing contraceptive drugs at the CVS health clinic where she worked.^[13]  CVS granted her accommodation for a time, requiring female patients to seek out other locations who would be willing to prescribe them.^[14]  When CVS later deemed such prescriptions an essential function of the job, she was fired after refusing to comply, and her complaint explains her position that she was forced to enter into a conflict between her job and her religious beliefs.^[15]

 This case highlights the ongoing tension between protecting one’s right to practice their religion along with essential employer functions, such as ensuring patient access to healthcare.^[16] Up until now, a negative impact on patient care may have been enough for an employer to refuse an accommodation under the Hardison standard.^[17]  But if the Supreme Court is to implement a higher standard, requiring employers to prove more than a minimal cost, the pharmacy chain may no longer be able to deny such an accommodation, and would have to allow its employees to refuse to prescribe certain medications based on their religious beliefs.^[18]

 As the legal landscape surrounding religious accommodations continues to evolve, it will be imperative for employers and employees to familiarize themselves with the new rights and obligations that may arise should the Supreme Court establish a new precedent during the upcoming term.

---

^[1] Petition for Writ of Certiorari, Groff v. DeJoy, (2022) (No. 22-174); Amy Howe, Court grants review in new batch of cases, including dispute on religious rights of employees, Scotusblog (Jan. 13, 2023, 6:13PM), https://www.scotusblog.com/2023/01/court-grants-review-in-new-batch-of-cases-including-dispute-on-religious-rights-of-employees/.

^[2] Patterson v. Walgreen Co., 727 F. App’x 581 (11th Cir. 2018), cert. denied, 140 S. Ct. 685 (2020) (Justice Alito writing “[w]e should reconsider the proposition, endorsed by the opinion in [Hardison], that Title VII does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.”); Linda Greenhouse, This Is What Judicial Activism Looks Like on the Supreme Court, NY Times: Opinion (Apr. 8, 2021), https://www.nytimes.com/2021/04/08/opinion/Supreme-Court-religion-activism.html.

^[3] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e – 2000e17.

^[4] U.S. Equal Employment Opportunity Commission, What You Should Know: Workplace Religious Accommodation, EEOC, https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation (last visited Jan. 29, 2023).

^[5] Id.

^[6] TWA v. Hardison, 432 U.S. 63, 84 (1977).

^[7] Id.

^[8] Becket,  Becket Takes on Religious Employment Discrimination, Hardison Info Central, https://www.becketlaw.org/hardison/ (last visited Jan. 28, 2023).

^[9] Religious Discrimination in the Federal Workplace, U.S. Department of Labor, https://www.dol.gov/agencies/oasam/civil-rights-center/internal/policies/religious-discrimination-accommodation (last visited Jan. 29, 2023). 

^[10] See supra, at note 1.

^[11] See generally, Pierson, supra note 12 (discussing the potential impacts of the Hardison case being oveturned)

^[12] Brendan Pierson, CVS sued by fired nurse practitioner who refused to prescribe birth control, Reuters (Jan. 11, 2023, 5:55 PM), https://www.reuters.com/legal/litigation/cvs-sued-by-fired-nurse-practitioner-who-refused-prescribe-birth-control-2023-01-11/.

^[13] Id.

^[14] Id.

^[15] Id.

^[16]  Id.

^[17] See supra, at note 4.

^[18] See generally, Pierson, supra note 12 (discussing the potential impacts of the Hardison case being oveturned)

Supreme Court to Decide Whether the NLRA Preempts State Tort Claims Arising Out of Labor Strikes

By: William Keller

Worker strikes and public support for labor unions have reached historic levels in recent years.^[1] According to Cornell University’s School of Industrial and Labor Relations, there were 374 labor strikes in 2022, a 39% increase from the year before.^[2] Whether the number of labor strikes continues to increase in the coming years may depend on a case pending before the United States Supreme Court—Glacier Northwest v. International Brotherhood of Teamsters, Local Union 174.^[3]

 In summer of 2017, truck drivers working for Glacier Northwest—a ready-mix concrete company located in Seattle, Washington—became frustrated after months of failed contract negotiations with their employer, and decided to go on strike.^[4] On August 11, 2017, the truck drivers, who are part of the International Brotherhood of Teamsters, Local Union 174 (hereinafter the “Teamsters Union”), reported for work and those drivers with morning runs had their trucks loaded with cement.^[5] Then, at the agreed upon hour, the truck drivers drove their trucks back to company headquarters and walked off the job.^[6]

Several of the trucks were still loaded with cement, and the workers left those trucks running to prevent the cement from hardening inside the trucks’ drums.^[7] However, Glacier Northwest was unable to deliver the cement left in the trucks and some of it hardened, requiring it to be discarded.^[8] One week later, Glacier Northwest and the Teamsters Union reached an agreement and the strike ended.^[9]

Glacier Northwest then brought suit against the Teamsters Union for tortious destruction of company property in Washington State Court, alleging that the Teamsters Union decided to conduct the strike after the cement had been loaded into the trucks to ensure its destruction.^[10] The case was eventually dismissed by the Supreme Court of Washington, which held that state tort law could not the applied to a labor dispute covered by a federal law, the National Labor Relations Act (hereinafter “NLRA”).^[11]

On October 3, 2022, the United States Supreme Court granted Glacier Northwest’s petition for certiorari.^[12] The Supreme Court is now tasked with deciding whether the NLRA preempts employers from bringing tort suits under state law based on property destroyed as a result of labor disputes.^[13]

The NLRA grants employees the right to collectively bargain and the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”^[14] Furthermore, it is the task of the National Labor Relations Board (hereinafter “NLRB”) to determine whether union conduct is protected by the NLRA.^[15] In San Diego Building Trades v. Garmon, the Supreme Court held that the NLRA preempts state law claims whenever such claims involve conduct that is “arguably” protected under the NLRA.^[16] The Garmon Court interpreted this preemption effect broadly to ensure that labor law applies uniformly to all labor disputes.^[17]

Glacier Northwest’s argument that its lawsuit should be allowed to proceed rests on two major premises.^[18] First, that the Teamsters Union’s conduct was not clearly protected by the NLRA.^[19] And second, even if the Teamsters Union’s conduct is protected by the NLRA, the lawsuit should still be allowed to proceed because the state’s interest in preventing property destruction satisfies an exception to the preemption doctrine set out in Garmon.^[20] The exception set out the following, for torts “so deeply rooted in local feeling and responsibility that . . . [the Court] could not infer that Congress had deprived the States of the power to act.”^[21]

Much of the press coverage of this case is focused on the implications of a potential ruling in favor of Glacier Northwest.^[22] Many believe that such a ruling would undermine workers’ rights to strike, arguing that workers will be less willing to strike when they can be held liable for their employers’ economic loss resulting from the strike.^[23]Advocates point out that the purpose of a strike is to create an economic incentive for the employer to bargain seriously with the union.^[24] They argue that there is a fine line between the negative economic effects of a strike on a business (for which workers should not be held liable), and egregious worker behavior (for which workers should be held liable), e.g., violence in the workplace or obvious vandalism of company property.^[25]

Yet others strongly believe that such a ruling in no way alters workers’ rights to strike peacefully, but instead ensures that employers are able to recover damages from the intentional destruction of employer property carried out during the course of workers’ strikes.^[26]

Until the Supreme Court releases its decision, the extent to which litigants are exempt from the NLRA’s preemption effect for lawsuits arising out of labor disputes remains unclear.^[27]

---

^[1] See Emily Peck, Worker strikes surged in 2022, Axios (Dec. 19,  2022), https://www.axios.com/2022/12/19/worker-strikes-surged-in-2022.

^[2] Id. 

^[3] See Sharon Block, Cement-truck drivers went on strike. A lawsuit by their company may pave the way for restricting workers’ rights, SCOTUSblog (Jan. 6, 2023), https://www.scotusblog.com/2023/01/cement-truck-drivers-went-on-strike-a-lawsuit-by-their-company-may-pave-the-way-for-restricting-workers-rights/.

^[4] See id. 

^[5] See Glacier Northwest, Inc. v. International Brotherhood of Teamsters, Legal Info. Inst., https://www.law.cornell.edu/supct/cert/21-1449 (last visited Jan. 27, 2023).

^[6] See id.

^[7] See Block, supra note 3.

^[8] See id.

^[9] See id.

^[10] See id.

^[11] Glacier Nw., Inc. v. Int’l Bhd. of Teamsters Local Union, 500 P.3d 119, 123 (2021).

^[12] See Legal Info. Inst, supra note 5.

^[13] See id.

^[14] Nat’l Lab. Rel. Act, 29 U.S.C.S. § 157.

^[15] See Block, supra note 3.

^[16] See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959).

^[17] See id. at 242–243; see also Block, supra note 3.

^[18] See Block, supra note 3.

^[19] See id.

^[20] See id.

^[21] Garmon, 359 U.S at 244 (alteration in original). 

^[22] More Perfect Union, How The Supreme Court Could Soon Destroy The Right To Strike, YouTube (Jan. 9, 2023), https://www.youtube.com/watch?v=yGajmX4b6kc.

^[23] See id.

^[24] See id.

^[25] See id.

^[26] See, e.g., Sean P. Redmond, Supreme Court Hears Labor Liability Case, U.S. Chamber of Com. (Jan. 17, 2023), https://www.uschamber.com/employment-law/supreme-court-hears-labor-liability-case.

^[27] See Legal Info. Inst, supra note 5.

Are the Mass Layoffs at Twitter in Violation of the WARN Act?

Brandon Kaminker

            On Thursday, October 27^th, 2022, after many months of negotiation, Elon Musk officially acquired Twitter for a total of $44 billion.^[1] Soon after the deal was finalized, Musk fired many of Twitter’s top executives, including its CEO Parag Agrawal and CFO Ned Segal.^[2] A little over a week after ousting the companies top executives, Musk decided to initiate layoffs at the company totaling approximately 50% of the companies 7,500 person workforce.^[3] Of the over 3,000 employees who were laid off, 784 were based out of Twitter’s headquarters in San Francisco and another 199 of the laid off employees were based out of its office in either San Jose or Los Angeles.^[4] Musk cites the companies loss of over $4 million per day as the reason for these mass layoffs.^[5] But, when conducting these layoffs, Musk may have been in violation of both the federal and state of California’s Worker Adjustment and Retraining Notification Act (“WARN Act”).^[6]

            The California WARN Act is an employee protection law that requires employers to notify its employees of mass layoffs at the company at least 60 days prior to when those layoffs will begin. ^[7] A mass layoff under California law is defined as “a layoff during any 30-day period of 50 or more employees at a covered establishment”.^[8] If an employer is found to be in violation of the WARN Act, it could be liable for up to 60 days of back pay plus the accrued employee benefits, or half of the days the employee has worked at the company, depending on which is less.^[9] The main intentions of California’s WARN Act are to give employees and their families the ability to prepare for a loss in employment, allow time for the employee to search for another job, and sometimes even to give the employee time to develop new skills to keep them marketable to new employers. ^[10]

            Soon after the layoffs were announced, a class action lawsuit was filed against Twitter in a Federal District Court alleging violations of both the federal and state of California’s versions of the WARN Act.^[11] The class of plaintiffs are made up of five people who currently work at Twitter or were recently laid off from the company.^[12]

The plaintiffs in the case are being represented by Shannon Liss-Riordan, a highly skilled and experienced labor attorney who is known for litigating cases against large companies such as Uber and Lyft for misclassifying its workers as independent contractors rather than employees.^[13] Liss-Riordan stated that the lawsuit was filed “to ensure that Twitter should be held accountable to our laws and to prevent Twitter employees from unknowingly signing away their rights”.^[14]

This is not Elon Musk’s first experience dealing with a possible WARN Act violation either.^[15] In a lawsuit filed earlier this year, a class of Tesla factory workers accused the company of failing to provide adequate notice of mass layoffs to its employees in violation of the WARN Act, and were therefore entitled to back pay.^[16] This claim is currently being arbitrated. ^[17]

Amid rising interest rates and a slowing economy, which have already caused several technology companies to conduct mass layoffs, it will be interesting to see whether these companies will comply with the necessary rules and procedures included in the WARN Act. 

---

^[1] See Amanda Silberling & Taylor Hatmaker, It happened: Elon Musk officially owns Twitter, tech crunch (Oct. 27, 2022) https://techcrunch.com/2022/10/27/elon-musk-bought-twitter/.

^[2] See id.

^[3] Sheila Dang et. al., Twitter lays off staff, Musk blames activists for ad revenue drop, Reuters (Nov. 4, 2022) https://www.reuters.com/technology/twitter-start-layoffs-friday-morning-internal-email-2022-11-04/.

^[4] See id. 

^[5] See id. 

^[6] Lora Kolodny, Twitter cut more than 950 California employees after Elon Musk took over, WARN notice shows, cnbc (Nov. 4, 2022) https://www.cnbc.com/2022/11/04/twitter-cut-more-than-950-california-employees-after-elon-musk-took-over-warn-notice-shows.html.

^[7] See Cal. Lab. Code § 1401(a) (Westlaw 2022)

^[8] Cal. Lab. Code § 1400.5(d) (Westlaw 2022). 

^[9] See Cal. Lab. Code § 1402(a)(1) (Westlaw 2022).

^[10] See Employment Development Department State of California, https://edd.ca.gov/en/Jobs_and_Training/Layoff_Services_WARN (last visited, Nov. 18, 2022). 

^[11] See Sheila Dang et. al., Twitter lays off staff, Musk blames activists for ad revenue drop, Reuters (Nov. 4, 2022) https://www.reuters.com/technology/twitter-start-layoffs-friday-morning-internal-email-2022-11-04/.

^[12] See Phil Helsel, Twitter sued over short-notice layoffs as Elon Musk’s takeover rocks company, nbc news (Nov. 4, 2022) https://www.nbcnews.com/business/business-news/twitter-sued-layoffs-days-elon-musk-purchase-rcna55619.

^[13] See Nate Raymond & Daniel Wiessner, Lawyer who sued Uber launches Massachusetts attorney general campaign, Reuters (Feb. 2, 2022) https://www.reuters.com/legal/transactional/lawyer-who-sued-uber-launches-massachusetts-attorney-general-campaign-2022-01-25/.

^[14] Sarah Perez & Ivan Mehta, Twitter sued in class action lawsuit over mass layoffs without proper legal notice, techcrunch (Nov. 4, 2022) https://techcrunch.com/2022/11/04/twitter-faces-a-class-action-lawsuit-over-mass-employee-layoffs-with-proper-legal-notice/.

^[15] See Jon Brodkin, Lawsuit: Tesla broke US law by not providing 60-day notice before mass layoff, ars technica (June 21, 2022, 3:47 PM) https://arstechnica.com/tech-policy/2022/06/lawsuit-tesla-broke-us-law-by-not-providing-60-day-notice-before-mass-layoff/.

^[16] See id. 

^[17] See Christina Tabacco, Tesla Workers’ WARN Act Labor Suit Heads to Arbitration, Law|Street (Sept. 28, 2022) https://lawstreetmedia.com/news/tech/tesla-workers-warn-act-labor-suit-heads-to-arbitration/.

We Got it Covered: EEOC Commissioner Targets Employers Offering Abortion Travel Benefits

By: Caitlyn Shu

In a post-Dobbs world^[1], employers’ policies that offer time off or reimburse travel expenses for employees who must travel to another jurisdiction to undergo an abortion, have come under scrutiny.^[2] The most recent attack on these policies has been orchestrated by Andrea Lucas, a republican Commissioner for the Equal Employment Opportunity Commission (EEOC).^[3] Lucas has done this by filing commissioner charges against at least three companies who provide abortion travel benefits to their employees.^[4] In these charges, Lucas alleges that these employers are discriminating against pregnant and disabled workers by not providing them with equivalent medical benefits.^[5]

A commissioner charge is a rarely utilized tactic.^[6] These charges authorize the EEOC to investigate possible discrimination on its own, rather than simply investigating discrimination charges that have been filed by individuals.^[7]Once a commissioner charge has been filed, a directed investigation conducted by an EEOC district office, of the employer ensues.^[8] In the event that the investigation concludes with a finding that the commissioner charge had been filed with “reasonable cause”, the next step will be to attempt conciliation.^[9] In the event that conciliation is unsuccessful and the employer refuses to voluntarily comply, then the commission may bring civil suit against the employer.^[10]Needless to say, the investigation and potential for litigation renders commissioners charges as a matter to be taken seriously by commissioners, EEOC district offices, and employers.^[11]

While Lucas is the first to file commissioner charges asserting claims of discrimination against employers offering abortion access benefits, she is not the first to propose the notion.^[12] Former counsel of the EEOC, Sharon Gustafson, recently came under fire in October for sending letters to employers, warning them that by offering abortion benefits to employees, they were at risk of EEOC Commissioner charges.^[13] Gustafson, in one of her letters, specifically claimed that the offering of abortion travel benefits actively encourages employees to have abortions, which is evidence that supports a class claim of pregnancy discrimination.^[14] The Pregnancy Discrimination Act of 1978 prohibits “sex discrimination on the basis of pregnancy.”^[15] The Act requires that women have been affected by pregnancy must not be treated differently for employment-related purposes and does not require employers to provide abortion benefits.^[16]However, the Act also declares that “nothing herein shall preclude an employer from providing abortion benefits…”^[17]As a result of Gustafson’s letters and potentially misinformed claims, management-side firm, Littler Mendelson, requested that the EEOC’s current legal counsel investigate Gustafson for her attempts to scare and intimidate employers.^[18]

Lucas and Gustafson’s efforts to target employers that offer abortion travel benefits illustrate the era of uncertainty that accompanies the aftermath of Dobbs. While the decision immediately triggered abortion laws in thirteen states,^[19] it also prompted pledges from employers nationwide, to provide abortion travel benefits to its employees.^[20] Employers and employees alike are burdened with the difficult task of navigating these competing efforts to either restrict or expand the right to abortion. 

---

^[1] Dobbs v. Jackson Women’s Health Org., 142 U.S. 2228 (2022) (holding that the Constitution does not confer a right to abortion). 

^[2] See Jennifer Ellerkamp & Tasos C. Paindiris, The Aftermath of U.S. Supreme Court’s Dobbs: Where Are the States in Fall 2022?, Jackson Lewis(Oct. 28, 2022), https://www.jacksonlewis.com/publication/aftermath-us-supreme-court-s-dobbs-where-are-states-fall-2022.

^[3] See J. Edward Moreno, EEOC Official Quietly Targets Companies over Abortion Travel, Bloomberg Law (Nov. 14, 2022), https://www.bloomberglaw.com/product/labor/bloomberglawnews/daily-labor-report/BNA%20000001845910dcf5a9947fd7b9040001?bna_news_filter=daily-labor-report.

^[4] Id.

^[5] Id. 

^[6] Id. (“[O]nly three commissioner’s charges were filed in both fiscal years 2021 and 2020.”).

^[7] Commissioner Charges and Directed Investigations, Equal Emp. Opportunity Comm’n https://www.eeoc.gov/commissioner-charges-and-directed-investigations (last visited Nov. 16, 2022). 

^[8] See id.

^[9] Id.

^[10] Id.

^[11] See Moreno, supra note 3. 

^[12] Id. 

^[13] See J. Edward Moreno & Rebecca Rainey, Law Firm Calls Out Ex-EEOC Counsel’s Note on Abortion Travel (3), Bloomberg Law (Oct. 25, 2022), https://www.bloomberglaw.com/product/labor/bloomberglawnews/bloomberg-law-news/XFH4EL4000000?#jcite.

^[14] Id.

^[15] The Pregnancy Discrimination Act of 1978, Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/statutes/pregnancy-discrimination-act-1978 (last visited Nov. 16, 2022). 

^[16] Id.

^[17] Id.

^[18] See Moreno & Rainey, supra note 13.

^[19] See Ellerkamp & Paindiris, supra note 2. 

^[20] See #WhatAreYourReproBenefits, Rhia Ventures, https://rhiaventures.org/corporate-engagement/whatareyourreprobenefits/ (last visited Nov. 16, 2022) (providing a database of companies with more than 500 employees, that will provide abortion care coverage).

Insights in Labor Arbitration…From Kyrie Irving?

William Sherman

On October 27^th, 2022, Kyrie Irving the star point guard for the Brooklyn Nets posted an Amazon link to an antisemitic movie to his Twitter and Instagram accounts.^[1]  Irving was strongly condemned for the offensive post, and on November 3^rd, following a maligned press conference was suspended by the Brooklyn Nets “for at least 5 games”.^[2] The punishment also included that the suspension would continue until Irving satisfied a series of objective remedial measures that addressed his conduct.^[3]  These six requirements included; that Irving must apologize, make a $500,000 donation to anti hate causes, complete sensitivity training, complete anti-semetism training, meet with Anti-Defamation League (ADL) and Jewish leaders, and meet with team ownership to demonstrate understanding.^[4]

            The reaction from the National Basketball Players Association (NBPA), the players certified union, has been one of concern.^[5]  Jaylen Brown, current Celtics forward and NBPA vice president, noted that the concern was over the lack of guidelines in place in the current collective bargaining agreement for player discipline.^[6] Currently, under the NBA collective bargaining agreement, discipline is handled with the discretion of the league regarding matters such as criminal conviction, substance abuse, and firearms.^[7] However, the CBA is notably lacking in regards to employee/player discipline in specific matters of discrimination related to misconduct.^[8]  Rather, the NBA reserves the right to enact discipline if a player engages in acts prejudicial to or against the best interest of basketball. ^[9]

            As the union is likely to appeal in arbitration, the issue will be whether the NBA excessively punished Irving pursuant to the CBA and National Labor Relations Act (NLRA).^[10] As we saw in the “Deflate-gate” case, suspensions upheld in arbitration under a CBA are valid so long as they “draw from the essence of the contract” and was not “an arbitrators’ own brand of industrial justice”.^[11] As stated above, the NBA has discretion to discipline for acts prejudicial to basketball. However, not all is lost for Irving, as the National Labor Relations Bureau (NLRB) ruled in the Care Onedecision.^[12] In that case the NLRB found that employers can exercise discretion in employee discipline so long as the action taken “is similar in kind and degree to what the employer did in the past within the structure of established policy or practice”.^[13]  This means that the league’s punishment may be evaluated in relation to the punishments handed out in other cases. 

            For examples of similar incidents, in 2021, Miami Heat center Meyers Leonard was suspended for a week and fined $50,000 for use of anti-semetic slur.^[14]  Furthermore, in September 2022, Minnesota guard Anthony Edwards was fined $40,000 for use of a homophobic slur.^[15]  These prior suspensions and fines become important in the labor arbitration context when evaluating whether the punishment given to Irving was with “just cause”.^[16]  In arbitration, “just cause” is the principle that decisions relating to discipline or discharge of employees must be made with a “just” reason.^[17]  While there is no bright line rule for evaluating “just cause”, arbitrators most commonly use a 7-factor test in making the determination.^[18]  For this situation, the factor of equal treatment would be the area most in issue as reflected in the comments by NBPA members.  

In this context equal treatment means that employers cannot implement considerably harsher discipline on one employee compared to another who committed the same or substantially similar offense.^[19]  As shown above, the league has implemented a punishment that required more steps and a much more substantial fine on Irving than was given to Leonard or Edwards.^[20]

While this scenario plays out, there are important lessons that can be gleaned. First, the NBPA, can test the current iteration of the CBA for protection from disparate punishment.  With the Current CBA set to expire in 2023, this could prove to be an area of contention in future negotiations as the players seek a level system of discipline.^[21]  Furthermore, this serves as a chance to gain insight in employee/employer discipline disputes relating to social media. Regardless, the ensuing arbitration could lead to new changes in the CBA and the business of basketball as a whole. 

---

^[1] Brian Lewis & Brian Wacker, Kyrie Irving Raises Eyebrows with Tweet to Movie Filled with Anti-Semitic Disinformation, N.Y. Post (Oct. 28, 2022, 8:36 PM), https://nypost.com/2022/10/28/kyrie-irving-raises-eyebrows-with-tweet-to-movie-filled-with-anti-semitic-disinformation/.

^[2] Jasmyn Wimbish, Net Give Kyrie Irving Six Requirements to Fulfill Before He Can Return from Suspension, Per Report, CBS Sports (Nov. 7, 2022, 4:26 PM), https://www.cbssports.com/nba/news/nets-give-kyrie-irving-six-requirements-to-fulfill-before-he-can-return-from-suspension-per-report/

^[3] Id.

^[4] Id.

^[5] Paul Rudder, The NBAPA Isn’t On Board with the Specifics of Kyrie Irving’s Punishment, but What Did They Have to Say?, Diario AS (Nov. 8, 2022, 2:48 PM), https://en.as.com/nba/the-nbapa-isnt-on-board-with-the-specifics-of-kyrie-irvings-punishment-but-what-did-they-have-to-say-n/?omnil=resrelrecomv.   

^[6] Id.

^[7] See Collective Bargaining Agreement, NBA Player’s Association (Jan. 19, 2017) https://www.nbpa.com/cba. 

^[8] See Id.

^[9] Id. at A-24.

^[10] See Rudder, supra note 5.

^[11] Natl. Football League Mgt. Council v. Natl. Football League Players Ass’n, 820 F.3d 527 (2d Cir. 2016).

^[12] 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (June 23, 2020).

^[13] Id.

^[14] Malika Andrews, Miami Heat’s Meyers Leonard Fined $50,000, Suspended for Week for Using Anti-Semitic Slur, ESPN (Mar. 11, 2021), https://www.espn.com/nba/story/_/id/31044935/miami-heat-meyers-leonard-fined-50000-suspended-week-using-anti-semitic-slur

^[15] Jamal Collier, NBA Fines Minnesota Timberwolves Star Anthony Edwards $40K for Anti-Gay Comments on Social Media, ESPN (Sep. 20, 2022), https://www.espn.com/nba/story/_/id/34631645/nba-fines-minnesota-timberwolves-star-anthony-edwards-40k-anti-gay-comments-social-media.

^[16] Alyson Raphael, Arbitrating “Just Cause” for Employee Discipline and Discharge in the Era of Covid-19, 34 Geo. J. Legal Ethics 1240 (2022). 

^[17] The Seven Tests of Just Cause, United Electrical, Radio and Machine Workers of America (Last accessed Nov. 10, 2022), https://www.ueunion.org/stwd_jstcause.html

^[18] Id.

^[19] Id.

^[20] See Wimbish, supra note 2.

^[21] Adrian Wojnarowski, NBA Pursuing Upper Spending Limit in New Agreement with NBPA, ESPN (Oct. 28, 2022), https://www.espn.com/nba/story/_/id/34896826/sources-nba-pursuing-upper-spending-limit-new-agreement-nbpa