The NCAA’s Lack of Clarity regarding Coaches Liability for Abuse of Players

By: Alexandra Laird

Hillary Dole’s first Friday at Cornell ended with a broken nose and a bloody face. The event she participated in was an annual tradition for the Cornell University Softball Team, all new recruits were instructed to pull beanie hats over their eyes and stand in a line.[1] Next, they were effectively blindfolded, and their teammates and coach yelled at them to run. “It was confusing, chaotic, intimidating, and I didn’t know what to do.” [2] “I ran because the culture in sports is such that you just kind of do what you’re told that’s just how it is when you play on a team. And so I ended up running 40 yards face-first into a brick wall.” [3] Dole assumed she wouldn’t be put in danger by the team, which is still led by coach Julie Farlow. She suffered a severe concussion that left her with headaches and sensitivity to light, which the coach forced her to play through on the brightly lit field. [4] 

In a separate instance, The Daily Orange reported that since 2018, 12 players have quit/ transferred the Syracuse Softball Team. Those players say that they dealt with adverse mental health effects brought on by the environment within the head coaches’ program.[5] Allegations ranged from verbal harassment and abuse to bizarre mistreatment, including one claim where a player was forced to hand-launder uniforms, but wasn’t allowed to dry them. That incident led to the team competing in damp uniforms, ultimately resulting in several players contracting urinary tract and yeast infections.[6]

Both Title VII and Title IX are available to a coaches/employee to address workplace settings concerning the coach’s employment conditions. [7] But nothing discusses the coaches as employees of the universities and their obligations to their players. NCAA states in their manual that intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes and to protect the health of, and provide a safe environment for participating student-athletes.^[8] It is the responsibility of each member institution to ensure that coaches and administrators exhibit fairness, openness and honesty in their relationships with student-athletes’.[9] Although players do not have an employer/employee relationship the NCAA defines the  necessary relationship as the following: “ the responsibility of each member institutionto establish and maintain an environment that fosters a positive relationship between the student-athlete and coach.” [10]  Lastly, they describe the head coaches’ level of responsibility as: “An institution’s head coach shall promote an atmosphere of compliance within the program and shall monitor the activities of all institutional staff members involved with the program who report, directly or indirectly, to the coach”. [11]

NCAA Failure to Take a Role:

“The NCAA needs to take an active role,” said Ramogi Huma, a former college football player and executive director of the National College Players Association, an advocacy group for college athletes. “Instead, they sit on their hands time and time again. They’ll investigate players for making a few bucks from selling their own autographs, but if that player is beat up by a coach, or put back into a game with a concussion, risking his life because the coach wants to win a game, the NCAA does nothing.” [12]

The NCAA has punished coaches for breaking recruiting rules and certain other kinds of misconduct, with the most serious sanction being the association’s show-cause penalty, which requires a coach’s current institution (if he or she has kept a job) or prospective future employer (if he or she has been fired) to meet with the NCAA to justify the coach’s employment.[13] Such punishments are reserved for recruiting violations or academic fraud.[14] Coaches are rarely, if ever, punished by the NCAA for abusive behavior, because there are no NCAA rules devoted to verbal and physical abuse of players.[15] Therefore, there needs to be a change in the liability for coaches’ actions for abusive behavior.

---

[1] Lindsey Dodgson, Female college athletes from across the US say they’ve been bullied, manipulated, and psychologically abused by their coaches, The Insider (Oct. 20, 2020) https://www.insider.com/players-say-psychological-abuse-college-women-sports-coaches-2020-7.

[2] Id.

[3] Id.

[4] Id.

[5] Anthony Alandt & Connor Smith, Former SU softball players allege abuses by head coach Shannon Doepking, The Daily Orange (May 13, 2021) https://dailyorange.com/2021/05/former-syracuse-softball-players-allege-abuses-by-shannon-doepking/.

[6] Id.

[7] Kim Turner, The Rights of School Employee Coaches Under Title VII and Title IX in Educational Athletic Programs, 32 ABA Lab. & Emp. L. J. 229, 230 (2017).

[8] NCAA, 2020-2021 NCAA Division I Manual art. 2.2.3, at 2 (2020)

[9] See NCAA, supra note 8, art 2.2.5 at 2.

[10] See NCAA, supra note 8, art. 2.2.4 at 2.

[11] See NCAA, supra note 8, art. 11.1.1.1 at 47.

[12] Jake New, Abused Athletes, Insider Higher Ed. (Sept. 1, 2016) https://www.insidehighered.com/news/2016/09/01/advocates-say-uncs-hiring-coach-accused-abuse-points-lack-ncaa-oversight.

[13] Id.

[14] Id.

[15] Id.

Prescience: There Will be More Religious Protections, Even With This Setback

By D’Andre Chapman

Religious protections have been a huge topic sense the perils of the pandemic.^[1]  Recently, a case concerning religious accommodations under Title VII, gave the courts another opportunity to extend religious protections.^[2]

Small v. Memphis Light Case

In Small v. Memphis Light, Gas & Water, Jason Small (“Small”) worked as an electrician for Memphis Light, Gas & Water (“Memphis Light”) for more than a decade.^[3]  Additionally, Small is a devout Jehovah’s Witness.^[4]  In 2013, Small was injured on the job.^[5]  This injury required Small to change positions.^[6]  Small desired to be a revenue inspector.^[7]  However, Memphis Light instead offered him a position as a service dispatcher.^[8]   Memphis Light did not make any other offers, and threatened termination if Small did not acquiesce and take the service dispatcher position.^[9]

Around this same time, Small conveyed the new position would conflict with the practice of his religion.^[10]  Small told Memphis Light that he had services on Wednesday and Sunday evenings, and that he had community work on Saturdays.^[11]  Small asked the company to reassign him; however, Memphis Light conveyed “that the accommodations would impose an undue hardship on the company and that its union required shifts be assigned based on seniority.”^[12]  Instead, Memphis Light suggested that Small should attempt to swap shifts with his colleagues.^[13]  Thereafter, Small sued Memphis Light for religious discrimination, inter alia, in the United States District Court or the Western District of Tennessee at Memphis.^[14]  Memphis Light motioned for summary judgement.^[15]  The summary judgement motion was granted and the present appeal ensued.^[16]

Pursuant to Title VII, religion refers to “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”^[17]  Caselaw has effectuated the statute and constructed a burden shifting framework to determine whether an employer failed to make religious accommodations for an employee.^[18]  Accordingly, for its prima facie, the employee must prove that: (1) the employee has a bona fide sincerely held, religious belief, the practice of which conflicts with an employment duty, (2) the employee informed their employer of the belief and conflict, and (3) the employer threatened the employee or subjected the employee to discriminatory treatment, including discharge, because of their inability to fulfill the job requirements.^[19]  

If the employee proves a prima facie case, the burden shifts to the employer.^[20]  The employer must show either that it initiated good faith efforts to accommodate reasonably the employee’s religious practices, or that it could not do so without undue hardship to it’s business.^[21]  An “undue hardship” means “anything more than a de minimis cost.”^[22]  Essentially, if an accommodation is costly to an employer, they do not have to accommodate the employee.^[23]  

Here, Memphis Light averred that “additional accommodations would have impeded the company’s operations, burdened other employees, and violated its seniority system.”^[24]  The court held these accommodations are sufficient to constitute undue hardship.^[25]  Thereby affirming the district court’s grant of summary judgement.^[26]

What does the Future Hold?

The de minimis cost standard has been scrutinized as essentially disregarding one’s freedom of religion in the employment context.^[27]  For example, last year Justice Thomas implied the Supreme Court should consider overruling the de minimis cost standard.^[28]  Additionally, Justice Gorsuch reiterated Justice Thomas’ sentiments.^[29]  The Court had the opportunity to review the Memphis Light case mentioned herein.^[30]  However, the Supreme Court declined to hear Small’s appeal.^[31]  In his dissent of the decision to deny certiorari, Justice Gorsuch whom was joined by Justice Alito reasoned that Title VII statute does not contain the words “de minimis cost.”^[32]  Additionally, Gorsuch stated, religious rights under employment law “are the odd man out” because “alone among comparable statutorily protected civil rights an employer may dispense with [religious rights] nearly at whim.”^[33]  Accordingly, because of the plain language of Title VII, and the lack of protection afforded religious rights Gorsuch would have reviewed Small’s case.^[34]

In brief, although the Court chose not to review the case of Smalls, Justices Thomas, Alito, and Gorsuch have all recently lambasted the de minimis cost standard.^[35]  Hence, religious rights are in the purview of the Supreme Court, and the de minimis cost standard may not last much longer.^[36]  

---

^[1] Andre Chung & Lawrence Hurley, U.S. Supreme Court Rebuffs Claims of Workplace Religious Bias, Reuters (Apr. 5, 2021 9:57 AM), https://www.reuters.com/article/us-usa-court-religion-idUSKBN2BS18G; Leah Litman, Supreme Court’s Decision to bar Restrictions on Religious Services in New York is an Ominous Sign, the appeal (Dec. 9, 2020), https://theappeal.org/supreme-courts-decision-to-bar-restrictions-on-religious-services-in-new-york-is-an-ominous-sign/. 

^[2] Id; see Small v. Memphis Light, Gas & Water, 952 F.3d 821 (6th Cir. 2020)

^[3] 952 F.3d at 823.

^[4] Id.

^[5] Id. 

^[6] Id. 

^[7] Id. 

^[8] Id.

^[9] Id.

^[10] Id. at 824.

^[11] Id. 

^[12] Id. 

^[13] Id. 

^[14] Id. 

^[15] Id.

^[16] Id. 

^[17] 42 U.S.C. § 2000e(f) 2020.

^[18] See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing the burden shifting framework for claims of discrimination under title VII); TWA v. Hardison, 432 U.S. 63, 79 (1977) (explicating the definition of undue hardship and conveying that courts will not interfere with otherwise valid collective bargaining agreements); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986). Most religious cases are accommodation cases. 

^[19] See 411 U.S. at 802-03.

^[20] Id. 

^[21] 952 F.3d at 825.

^[22] Id.

^[23] Id.

^[24] Id.

^[25] Id. (“Our court has found similar cost to be more than de minimis”). 

^[26] Id.

^[27] Chung & Hurley, supra note 1.

^[28] Id. 

^[29] Id.

^[30] Id.

^[31] Id.

^[32] Id.

^[33] Id.

^[34] Id.

^[35] Id.

^[36] Id.

NURSING UNIONS: THE IMPACT OF COVID-19 ON MEMBERSHIP AND ACTIVISM

By: Alexia Willis

The National Labor Relations Act granted nurses (and other professions) the power to unionize in 1935.^[1]  Since then, nursing union membership has been steadily increasing despite many other industries abandoning unionization.^[2]  Over the years nursing unions have been used to negotiate higher wages, overtime policies, overall worker safety, and more.^[3]  The treatment of nurses during the COVID-19 pandemic has caused many non-unionized nurses to reconsider their non-membership leading to an overall spike in interest.^[4]

The United States has had over 30 million cases of COVID-19.^[5]  The United States continues to rely on healthcare workers to take care of these patients.^[6]  In order to do this, healthcare workers have had to work incredibly long hours, deal with shortages of personal protective equipment (PPE), and an overall lack or resources.^[7]  National Nurses United, the world’s largest nursing union, reported that 81% of nurses were forced to reuse single use PPE.^[8]  As a result, frontline healthcare providers are put at an increased risk of contracting COVID-19.^[9]  Almost four thousand healthcare works died in 2020 while helping to fight the pandemic– with an overwhelming percentage being nurses.^[10]  Understandably, nurses are facing an increase in burnout, stress, anxiety and other mental health disorders.^[11]

Nursing unions across the country have mobilized to aggressively advocate for their members because of these conditions.^[12]  In 2020, 20.4% of nurses belonged to a collective bargaining unit.^[13]  This number is expected to drastically increase as a direct result of the COVID-19 pandemic.^[14]  Nurse unions have held strikes, especially in New York, in protest of adequate staffing, hospital failures in implementing appropriate COVID-19 protocols, lack of PPE, and the over-assignment of patients to nurses.^[15]  

Most significantly, nurses unions have been filing lawsuits against their employers for the lack of action taken to protect healthcare workers during the pandemic.^[16]  The New York State Nursing Association filed three separate lawsuits against the New York Department of Health (“DOH”), Montefiore Medical Center and Westchester Medical Center, in order to compel these institutions to provide safer working environments during the pandemic.^[17]  While these have since been dismissed, the lawsuit against Montefiore Medical Center has compelled the hospital to participate with the union in arbitration.^[18]  The nurses union was able to negotiate for more N95 masks and sick pay for nurses out with COVID-19.^[19]

As non-unionized nurses are seeing the impact the unions are having on the health and safety of their members, more workers are considering joining a union for the first time.^[20]  Already unionized nurses are becoming louder and more active in order to keep their members safe, especially amid the pandemic.^[21]  This trend will likely increase as the pandemic continues to run its course and as nursing unions keep seeing success in their collective bargaining efforts.^[22]

---

^[1] 29 U.S.C. § 151.

^[2] Catherine Burger, Do Unions Benefit or Harm Healthcare & Nursing Industries?, Registered Nursing.org (Dec. 14, 2020), https://www.registerednursing.org/articles/do-unions-benefit-harm-healthcare-nursing/#:~:text=According%20to%20the%20Bureau%20of,nearly%2040%20years%20ago%2C%20a.

^[3] Id.

^[4] See Aneri Pattani, Health Workers Unions See Surge in Interest Amid Covid, Kaiser Health News (Jan. 12, 2021), https://khn.org/news/article/health-workers-unions-see-surge-in-interest-amid-covid/; How Unions and Labor Law Empower NYC Nurses During the Pandemic, Joey Jackson Law, PLLC. (Mar. 17, 2021), https://www.joeyjacksonlaw.com/blog/2021/03/how-unions-and-labor-law-empower-nyc-nurses-during-the-pandemic/; Stephanie Goldberg, Why the Pandemic has Energized Hospital Unions, Modern Healthcare (June 15, 2020), https://www.modernhealthcare.com/hospitals/why-pandemic-has-energized-hospital-unions.

^[5] COVID Data Tracker, CDC, https://covid.cdc.gov/covid-data-tracker/#cases_totalcases (last visited Apr. 4, 2021). 

^[6] See Sangeeta Mehta et. al, COVID-19: A Heavy Toll on Health-Care Workers, The Lancet (Feb. 5, 2021), https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(21)00068-0/fulltext.

^[7] Id.

^[8] Erin Michael, Nurses’ Union Expresses Concern Over Hospital Conditions, Aerosol Transmission of COVID-19, Healio News (Mar. 11, 2021), https://www.healio.com/news/primary-care/20210311/nurses-union-expresses-concern-over-hospital-conditions-aerosol-transmission-of-covid19.

^[9] See Goldberg, supra note 4.

^[10] Lost on the Frontline, The Guardian, https://www.theguardian.com/us-news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-coronavirus-us-healthcare-workers-deaths-database (last visited Apr. 18, 2021).

^[11] Mehta, supra note 6.

^[12] Goldberg, supra note 4.

^[13] Burger, supra note 2.

^[14] Joey Jackson Law, supra note 4.

^[15] Id.

^[16] Amy Goldstein, Lawsuit Accuses Nation’s Largest Hospital Firm of not Protecting Workers from COVID-19, Washington Post (Aug. 20, 2021), https://www.washingtonpost.com/health/lawsuit-accuses-nations-largest-hospital-firm-of-not-protecting-workers-from-covid-19/2020/08/20/10c9f74e-e31f-11ea-b69b-64f7b0477ed4_story.html; Shannon Muchmore, New York Nurses Sue Montefiore, Westchester Hospitals Over Pandemic Working Conditions, Healthcare Dive (Apr. 21, 2020), https://www.healthcaredive.com/news/new-york-nurses-sue-montefiore-westchester-hospitals-over-pandemic-working/576435/.

^[17] Carl Ginsburg, NYS Nurses Association Files Three Lawsuits to Protect Nurses Health and Safety, New York State Nurses Association (Apr. 20, 2020), https://www.nysna.org/press/2020/nys-nurses-association-files-three-lawsuits-protect-nurses-health-and-safety#.YHDYahNKjvV.

^[18] Samantha Liss, Judge Dismisses New York Nurses Lawsuit Over COVID-19 Concerns, but Urges Resolution (May 4, 2020), https://www.healthcaredive.com/news/judge-dismisses-new-york-nurses-lawsuit-over-covid-19-concerns-but-urges-r/577278/.

^[19] Id.

^[20] See Pattani, supra note 4.

^[21] Id.

^[22] Id.

COVID-19’s Impact on the Future of NFL Liability for Player Injuries

By: Kelly Fitzgerald

The National Football League (NFL) has faced continuous criticism regarding its handling of player injuries. Within the NFL, there is no uniform standard of care implemented regarding players, as club teams are assigned to handle the medical care of their players.[1]  When players enter the league and sign their contracts, they agree to be bound by the NFL Constitution which provides that immediately following assignment to their club, the club becomes responsible for that player.[2]  This assignment includes injury care, which is administered by the team physicians.[3]  This allocation means that teams possess wide latitude regarding how they medically treat their players and allows the NFL to remove itself from liability for player injuries.[4]  In litigation regarding these injuries the NFL has chosen to settle, with one of the main conditions being that the NFL denies any wrongdoing.[5]  However, the increased involvement of the NFL in the health and safety of players may lead to an expansion of liability for player injuries in the future.

The recent Coronavirus pandemic (COVID-19) has highlighted an increased level of control over player health and safety. Prior to the start of the 2020 season, the NFL and National Football League Players Association (NFLPA) released a joint COVID-19 Protocol document detailing the requirements and expectations for teams and players during the season.[6]  The protocol stated the education and standards set and presented to players “was jointly-developed by the NFL and the NFLPA …”[7] The collaborative nature of this COVID-19 Protocol shows that the NFL has taken some amount of control regarding player health and safety.[8]  The screening and testing protocol prior to the start of the season was referred to as the “NFL return to work plan” and continues to be monitored by both the NFL and the NFLPA.[9]  

The testing mechanisms for COVID-19 required by the protocol and implemented by teams have to be approved by both the NFL and the NFLPA in order to be considered in compliance.[10]  Further, prior to their first game teams were required to submit an Infectious Disease Emergency Response Plan which would detail the team’s plan for “mitigating risk” of a COVID-19 outbreak.[11]  These plans were required to be reviewed by both the NFL and NFLPA to ensure they met the standards of the COVID-19 protocol.[12]  The protocol also states that when a player tests positive or experiences symptoms consistent with COVID-19, the club must notify the NFL Chief Medical Officer.[13]  The club must also provide information to the NFL such as the date of the positive test, the method of detection, facility access the person had, and the people the infected person was in contact with.[14] 

In order for a player to return to the club facility, the team physician must approve the return and the NFL Chief Medical Officer has to be notified regarding the return.[15]  These newly implemented procedures highlight the involvement of the NFL in the health and safety of players regarding the COVID-19 pandemic.  This increased level of involvement by the league displays that the NFL is taking more responsibility for player health and safety and may not be able to escape liability for injuries and threats to player health and safety for much longer.

---

[1] See NFL Const. art. XVII, §16.

[2] See NFL Const. art. XV, §1.

[3] See NFL Const. art. XVII, §16.

[4] See id.

[5] In re Nat’l Football League Players’ Concussion Injury Litig., 307 F.R.D. 351, 425-26 (E.D. Pa. 2015), amended sub nom. In re Nat’l Football League Players’ Concussion Injury Litig., No. 2:12-MD-02323-AB, 2015 WL 12827803 (E.D. Pa. May 8, 2015), and aff’d sub nom. In reNat’l Football League Players Concussion Injury Litig., 821 F.3d 410 (3d Cir. 2016), as amended (May 2, 2016).

[6] NFL & NFLPA, NFL-NFLPA COVID-19 Protocols for 2020 Season (2020).

[7] See id. at 3.

[8] See id. at 1 (stating that the NFL and the NFLPA with their “respective infectious disease experts have developed material that Club medical staffs must use” when educating their employees about COVID-19).

[9] See id. at 58.  

[10] See id. at 59 ( “all testing required by this Protocol must be mutually approved by the NFL and NFLPA and FDA approved”).

[11] See id. at 45 (stating that the Infectious Disease Emergency Response Plan is subject to review and approval by the NFL, NFLPA, and Infection Control for Sports).

[12] See id.

[13] See id. at 25.

[14] See id.

[15] See id. at 36 (showing a flow chart displaying the necessary steps a team must take once an individual within the club tests positive for COVID-19).

The Rise of COVID Liability Shield Laws

By: Santiago Uribe

The COVID-19 pandemic has had an indelible impact on our nation.[1] It is clear that “[t]he economic and social disruption caused by the pandemic is devastating: tens of millions of people are at risk of falling into extreme poverty . . .”[2] At the start of the pandemic “140,104 [business] were marked temporarily closed on Yelp.com, but by August that had fallen to 65,769.”[3] At first glance, that statistic seems to give rise to the conclusion that more than half of the business that closed due to the pandemic had reopened by August. “That drop, however, is not entirely driven by businesses reopening; instead, many have simply gone under. More than 97,966 businesses have permanently shut down during the pandemic . . .”[4]

Although it may be pre-mature, some scientists believe that the nation is on the track to normalcy.[5] That glimmer of hope is attributable to improved vaccine availability, which is paving the way for herd immunity.[6] “Now that the vaccine rollout is underway” states are beginning to lift to restrictions on business who survived the pandemic.[7] Nonetheless, the imposition and lifting of COVID restrictions and legislature “remains largely up to state and local official . . .”[8]

A disturbing trend that his arisen in light of the pandemic is the rise of COVID liability shield laws.[9] These laws “protect businesses, universities, health care providers and individuals from claims stemming from the virus.”[10] Lawmakers feel the need to “[p]rovide assurances to businesses that reopening will not expose them to liability for [employees’ and consumers’] exposure to COVID-19.”[11] Frankly, COVID liability shield laws harm the public because businesses will escape liability for failing to maintain safe work environments.

States that have enacted liability shield laws included West Virginia, Indiana, Alabama, and Georgia.[12] The West Virginia statute was passed on March 19, 2021 and will serve as the model statute for the purposes of examining the scope of the liability shield laws.[13] These laws have not been met without resistance.[14] Notably, lawmakers in Pennsylvania “passed similar legislation, but it was vetoed . . . by Gov. Tom Wolf . . .” who stated the bill created a potential safety risk and went too far in shielding businesses from coronavirus-related claims.”[15]

The key provision in West Virginia statute provides that, “. . . there is no claim against any person, essential business, business, entity, health care facility, health care provider . . . for loss, damage, physical injury, or death arising from COVID-19 . . .”[16] The statute notes the proliferation of: “lawsuits . . . filed across the country . . . against businesses seeking damages associated with a person’s exposure to COVID-19.”[17] As such, lawmakers concluded that the state’s reopening efforts would be hindered by the “[t]he threat of liability . . .”[18] Without citing any medical literature or reliable data, the state concluded that the “COVID-19 diagnosis and treatment has rapidly evolved . . . without the opportunity for the medical community to develop definitive evidence-based medical guidelines, making it difficult, if not impossible, to . . . establish applicable standards of care by which the acts or omissions of health care providers can fairly and objectively be measured.”[19] Appallingly, only businesses who engage in “in intentional conduct with actual malice” fall outside the scope of the immunity provided by the statute.[20]

Lawmakers must realize that the economic benefits of liability limitation are substantially outweighed by the risk that business will fail to maintain safe environments. Stopping the spread does not correlate with limiting liability.

---

[1] See Kimberly Chriscaden, Impact of COVID-19 on people’s livelihoods, their health and our food systems, World Health Org. (Oct. 13, 2020), https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people’s-livelihoods-their-health-and-our-food-systems.

[2] Id.

[3] Anne Srades & Lance Lambert, Nearly 100,000 establishments that temporarily shut down due to the pandemic are now out of business, Fortune (Sept. 28, 2020), https://fortune.com/2020/09/28/covid-buisnesses-shut-down-closed/#:~:text=Nearly%20100%2C000%20establishments%20that%20temporarily%20shut%20down%20due%20to,are%20now%20out%20of%20business&text=More%20than%2097%2C966%20businesses%20have,com’s%20Local%20Economic%20Impact%20Report.

[4] Id.

[5] See Sarun Charumilind et al., When will the COVID-19 pandemic end?, McKinsey & Comp. (Mar. 26, 2021), https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/when-will-the-covid-19-pandemic-end#

[6] See Id.

[7] See Coronavirus Restrictions and Mask Mandates for All 50 States, (updated Mar. 26, 2021), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html

[8] Id.

[9] See Hailey Konnath, W.Va. Becomes Latest State With COVID Liability Shield Law, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1367010/w-va-becomes-latest-state-with-covid-liability-shield-law

[10] Id.

[11] S. B. 277, 2021 Reg. Sess. (W. Va. 2021).

[12] See Hailey Konnath, W.Va. Becomes Latest State With COVID Liability Shield Law, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1367010/w-va-becomes-latest-state-with-covid-liability-shield-law

[13] See Id.

[14] See Id.

[15] Id.

[16] S. B. 277, 2021 Reg. Sess. (W. Va. 2021).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

Can Employers Require Employees To Get Vaccinated When The Vaccine Is Authorized For Emergency Use Only?

By: Michael Garafalo

As we pass the one-year mark of the COVID-19 pandemic,[1] the world is slowly recovering[2] from the first pandemic caused by coronavirus.[3]  Assumably, this recovery is, in part, thanks to the several vaccines that have been developed in record-breaking time.[4]  This means that employers are now more likely to start requiring employees who worked remotely during the height of the pandemic to return to the workplace.[5]

One unique aspect of the existing COVID-19 vaccines is that they are only available pursuant to the FDA’s Emergency Use Authorization, as opposed to the FDA’s “usual processes.”[6]  This fact has led to some reasonable concerns regarding the safety of the available vaccines.[7]  The implication here is that a vaccine approved only under the Emergency Use Authorization is not going to be as well understood with respect to potential complications when compared to a vaccine that is rolled-out under the FDA’s standard procedures.[8]  

Generally speaking, employers in the private sector are lawfully permitted to require employees to get vaccinations.[9]  This authority is not limitless, however, as employers do have to provide appropriate accommodations for employees whose medical needs or religious beliefs conflict with getting vaccinated.[10]  Yet, even in certain employment contexts, vaccination mandates will be upheld despite a burden on an employee’s religious beliefs or practices.[11] 

It still unclear whether employers can be held liable if an employee who had previously objected to getting vaccinated developed a life-threatening complication as a direct result of the vaccine.[12]  Litigation interpreting the FDA’s Emergency Use Authorization procedures are marginal.  It is possible that courts will follow some rule that would permit employers to require vaccinations while at the same time does not limit an employee’s right to refuse vaccination.[13]  Under such a rule, it is unlikely an employer could be held liable if an employee maintained a right to refuse vaccination.

---

[1] Bill Chappell, Coronavirus: COVID-19 Is Now Officially A Pandemic, WHO Says, NPR (Mar. 11, 2020), https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronavirus-covid-19-is-now-officially-a-pandemic-who-says (quoting WHO Director-General Tedros Adhanom Ghebreyesus).

[2]One Year After COVID-19 Declared a Pandemic: Consumers Turning the Corner?, CISION (Mar. 22, 2021), https://www.prnewswire.com/news-releases/one-year-after-covid-19-declared-a-pandemic-consumers-turning-the-corner-301251297.html (discussing various indicators of a global rebound after the COVID-19 pandemic).

[3] Chappell, supra note 1.   

[4] Zara Kaplan, Record-breaking Covid-19 Vaccines: How Were They Made So Quickly?, The Boar (Jan. 21, 2020), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employer-mandate-covid-vaccine-eua.aspx (“Before the coronavirus pandemic, the mumps vaccine licensed in 1967 held the record for the fastest ever vaccine development; from research to approval it took four years. The lightning-fast creation of multiple coronavirus (Covid-19) vaccines has therefore left a lot of us surprised, or even confused.”).

[5] It’s Time to Reimagine Where and How Work Will Get Done, PwC’s US Remote Work Survey (Jan. 12, 2021), https://www.pwc.com/us/en/library/covid-19/us-remote-work-survey.html (“Some firms might move more quickly as vaccines become more available or slow down if vaccinations occur slower than anticipated.”).

[6] Id.

[7] See Jeffrey Kluger, Too Many Americans Still Mistrust the COVID-19 Vaccines. Here’s Why, Time (Jan. 5, 2021), https://time.com/5925467/covid-19-vaccine-hesitancy/ (“’I think it’s reasonable to be skeptical about anything you put into your body, including vaccines,’ says Dr. Paul Offit, professor of pediatrics at the Children’s Hospital of Philadelphia and director of its Vaccine Education Center. Coming from Offit, a vocal proponent of universal vaccination and a particular boogeyman of the anti-vax camp, that carries particular weight. He goes further still, acknowledging that the speed with which the COVID-19 vaccines were developed can cause people special concern. ‘The average length of time it takes to make a vaccine is 15 to 20 years,’ he says. ‘This vaccine was made in a year.’”).

[8] See id.

[9]  Lisa Nagele-Piazza, Can Employers Mandate a Vaccine Authorized for Emergency Use?, SHRM (Mar. 23, 2021).

[10] Id.

[11] See Robinson v. Children’s Hosp. Boston, CV 14-10263-DJC, 2016 WL 1337255 at *10 (D. Mass. Apr. 5, 2016) (upholding an employer-hospital’s influenza vaccine mandate as applied to an employee seeking religious accommodations on the ground that to accommodate here would impose too great of a risk of influenza transmission within the hospital); see also Kiel v. Regents of Univ. of Cal., 2020 WL 7873525 (Cal. Super. Ct. Sept. 30, 2020) (denying plaintiff’s request for a preliminary injunction to enjoin the enforcement of a university’s new policy requiring students, faculty, and staff members to be vaccinated against influenza as prerequisite to use the university’s facilities, which, for teachers and staff, could conflict with their ability to attend work).

[12] See Jennifer M. Schwartzott & Theresa E. Rusnak, Can Private Sector Employers Require Employees to Be Vaccinated for Covid-19?, 93 N.Y. St. B.J. 36 (Feb. 4, 2021) (“As with most COVID-19-related legal predicaments, there are very few guiding judicial opinions to rely upon because we are still in the midst of the pandemic, and judges have not yet had an opportunity to weigh in.”).

[13] Id. (“While more guidance from both the FDA and the EEOC is expected, the EEOC’s reference to the EUA process in its guidance can be taken to mean it considered the FDA’s position and does not consider it determinative as to whether employers can mandate vaccinations. In other words, an individual’s right to refuse the vaccine does not necessarily prohibit employers from requiring its employees who are present in the workplace to be vaccinated.”).

NLRB Attempt to Stabilize its Position on Student-Workers is Withdrawn; Consequences of the Board’s President-Appointment System.

By: Moxi Szodfridt

To protect the rights of employees and employers, Congress passed the National Labor Relations Act (“NLRA”) in 1935.[1] The Act created an independent federal agency tasked with protecting “the rights of private sector employees to join together with or without a union to improve their wages and working conditions” called the National Labor Relations Board (“Board”).[2] Members of the Board are appointed by the President and confirmed by the Senate to five-year terms.[3] Symptomatic of this appointment power and relatively short service term is a sitting President’s ability to wield a heavy influence over the policy determinations of the Board’s administrative proceedings.[4] As such, the Board’s priorities change from one administration to another with regular oscillation in determinations. One area of labor law that has fallen victim to the Board’s fondness for seesawing is the categorization of student-employees.[5]

Under Section 2(3) of the NLRA “employees” include “any employee and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise…”[6] The NLRA does not explicitly categorize student workers as employees covered under the Act.[7] Consequently, the Board’s position on student-employees has been an uncertain one since it first asserted jurisdiction over private colleges and universities in its 1970 Cornell University decision.[8]

Four years post the Cornell decision, the Board excluded teaching and research assistants from the NLRA’s coverage deeming these workers to be “primarily students” excepting them from bargaining units composed of school-faculty members.[9] Years later, the Board explicitly held that graduate student research assistants are not employees for purposes of the Act.[10] In 2000, the Board reversed itself in its New York University decision, holding graduate assistants to be employees within the meaning of Section 2(3) of the NLRA.[11] The Board expanded its New York University ruling in Brown University and Columbia University to include “externally-funded graduate research assistants and undergraduate student assistants” as employees under the Act.[12] The Board cited the plain policy of the Act in its decision; “to encourage the practice and procedure of collective bargaining” and to “protect the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing.”[13]

Resultant of the student-worker classification flip-flopping, institutions of higher education, and the student workers themselves, have struggled with the lack of certainty as to whether student-workers are “employees” within the meaning of Section 2(3) of the NLRA.[14] The Board turned to rulemaking to resolve this classification catastrophe, publishing a Notice of Proposed Rulemaking in the Federal Register (“NPRM”).[15] Debuting in September 2019, the proposed rule exempts “undergraduate and graduate students who perform services for some form of financial compensation at a private college or university in connection with their studies from coverage as employees under Section 2(3) of the Act” from the Board’s jurisdiction.[16]

The policy behind this proposal stems from Board’s position under the Trump administration, stating that the “relationship undergraduate and graduate students have with their school is predominately educational, rather than economic.”[17] While the statutory definition of “employee” under the Act is sufficiently broad enough to cover student workers, the Board clinches on the predominately education facet of student-work positions to back its proposed exclusion.[18] To support its assertion, the Board supports its proposed rule with a number of “facts,” most notably: many graduate or research assistantships are prerequisites for graduation, students spend a limited amount of time on their research duties because their principal commitment is to academics, and the faculty role to student-workers is unlike the traditional employer/employee relationship which makes the situation ill-suited for collective bargaining.[19]

After the Board published its NPRM, a 60-day comment period commenced for the public to submit input on the proposed rule.[20] In response to the NPRM, “tens of thousands” of public comments poured into the Federal Register.[21] On March 12, 2021 the Board announced that it will published a Notice of Withdrawal of the student-worker NPRM on the 15^th of March. The Board’s ambiguous announcement stated only that “[i]n light of competing agency priorities, the Board has determined to focus its time and resources on the adjudication of cases currently in progress.”[22]

This withdrawal effectively means that Columbia University standard, classifying student teachers and research assistants to be employees within the meaning of the Act will continue to be the controlling standard.[23] The Board’s decision to withdraw its NPRM follows the long-line of administrative un-doing of past opposing-administration doings. With the new democratic-appointees to the Board under President Biden, the decision to withdraw the student-worker NPRM is a shock to none, to say the least.

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[1] National Labor Relations Act, 29 U.S.C.A. §§ 151 to 169 (West)

[2] Who We Are, nlrb,  https://www.nlrb.gov/about-nlrb/who-we-are (last visited Mar. 12, 2015)

[3] Id.

[4]  Susan K. Snyder & Barry R. Weingast, The American System of Shared Powers: The President, Congress and the NLRB, 16 L.J. Econ. & Org. 269, 273 – 276 (2000).

[5] Id. at 270.

[6] National Labor Relations Act, 29 U.S.C § 152(3) (2000).

[7] Id.

[8] Cornell Univ., 183 NLRB 329 (1970)

[9] Adelphi Univ., 195 NLRB 639, 640 (1972)

[10] NLRB v. Leland Stanford Jr. Univ., 715 F/2d 473 (9^th Cir. 1983)

[11] New York Univ., 332 NLRB 1205 (2000)

[12] Brown Univ., 342 NLRB 483 (2004); Columbia Univ., 364 NLRB 90 2016)

[13] See generally,  29 U.S.C § 151 (2012) (recognizing that one of the main purposes of the NLRA is to encourage the practice and procedure of collective bargaining” and to “protect the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing”).

[14] Michael R. Bertoncini et. al., Labor Board Withdraws Proposed Rule Excluding Student Workers from NLRA Coverage, The Nat. L. R. (Mar. 15, 2021), https://www.natlawreview.com/article/labor-board-withdraws-proposed-rule-excluding-student-workers-nlra-coverage

[15] Jurisdiction-Nonemployee Status of University and College Students Working in Connection with their Studies, 84 FR 49691 (proposed Sept. 23, 2019) (to be codified at 29 C.F.R. pt. 103).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Paul Salvatore et. al., NLRB Withdraws Proposed Rule Concerning Employee-Status of Student Teachers and Research Assistants, Proskaur, L. relations Update. (Mar. 12, 2021), https://www.laborrelationsupdate.com/nlrb/breaking-nlrb-withdraws-proposed-rule-concerning-employee-status-of-student-teachers-and-research-assistants/

[22] Id.

[23] Id. (“With this withdrawal of the proposed student assistant rule, the Board’s standard on student-employee status as articulated in its 2016 Columbia University decision, finding that student teachers and research assistants are “employees” under the Act, will remain the controlling standard”). 

Diploma Privilege in the Pandemic and its Impact for Reimagining Licensure

By: Vanessa Giunta

The pandemic has uprooted and changed many aspects of the labor and employment landscape since it began, and the legal field has not been immune to such effects.  COVID-19 forced many jurisdictions to evaluate current licensure practices and make drastic changes to mitigate risk and further exacerbate inequities.[1]  As a result, thirty jurisdictions offered online bar exams and, after activists and organizers pushed for states to adopt it, emergency diploma privileges.[2]  Louisiana, Oregon, Utah, Washington, and the District of Columbia all implemented some form of this as a stop-gap measure.[3]  But organizers for the movement plan to continue pushing for more permanent reforms to the licensure system.[4]  A serious lack of diversity, discrimination, pipeline issues, and curriculum have all come under scrutiny for their ultimate gatekeeping effects in the legal system, and the licensing process has played a critical structural part.[5]  California and New York have formed committees to “take a fresh look” at those states’ bar exams and decreasing bar passage rates.[6] 

Supporters of keeping the bar exam, which has been a systematic and historically oppressive bulwark for licensure for decades, say it helps to ensure new attorneys are qualified and competent to work for the public.[7]  However, the pandemic has proven that the ability to critically rethink and reshape pathways to the legal profession is possible and within reach, even improvisationally.[8]  With over 1,000 new lawyers obtaining licenses without taking the bar exam through these emergency measures, the question pre-dating the pandemic looms ever larger – whether the bar exam truly is necessary.[9]  Regarding lack of racial and ethnic diversity, according to an American Bar Association report in 2019, 85 percent of attorneys in the United States are white, 5 percent are Black, 5 percent are Latinx, 2 percent are Asian, and 1 percent are Native American.[10]  From those who support reckoning with this functionality and alternative means of licensure, the bar has been described as having a “sordid history” of “gatekeeping mechanisms” and a “relic of a racist club.”[11]  The advent of online, remote bar exams proctored by artificial intelligence technology has not improved inequities, but rather could result in greater disparity.[12]  Like other pre-pandemic areas of socioeconomic inequality compounded by COVID-19, changes to the bar’s format does not account for those experiencing multiple necessity insecurities, disabilities, or even reliable internet – factors already entrenched in racial and economic discrimination which are perpetuated as long-existent barriers to the profession.[13] 

The NCBE said it would incorporate a series of reforms after research conducted by its Testing Task Force was authorized to perform a “top-to-bottom” review of the exam.[14]  However, this may not be a source for radical change as officials with the NCBE stated the review does not assume anything is necessarily wrong with the existing structure, and would include periodic assessments to ensure the “exam is both valid and a reliable measure of lawyer competence.”[15]  But the charge of ensuring competency has been seriously questioned as to whether the exam actually does gauge necessary skills and knowledge for licensed employment, especially against the backdrop of historically “sordid” motives.[16]  Further, acceptance of alternatives has gained traction at firms like Davis Wright Tremaine, among the 100 largest in the country, which welcomed five new associates who earned their licenses through diploma privilege and have no plans to take the bar.[17]  The firm said this was “not a concern” for them as the associates already “established their capabilities” and were chosen with confidence.[18]  As of now, only Wisconsin and New Hampshire have permanent diploma privilege, but other emergency programs and employers’ indifference could help advocacy efforts pushing to reimagine access, curriculum, and competency for serious solutions to these licensure issues in the profession.[19]

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[1] Karen Sloan, Amid COVID-19, the Bar Exam Faces a Reckoning and a Revamp, Law.com (Dec. 2 2020, 11:26 AM), https://www.law.com/2020/12/02/amid-covid-19-the-bar-exam-faces-a-reckoning-and-a-revamp/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.; see also Pilar Margarita Hernández Escontrías, The Pandemic is Proving the Bar Exam is Unjust and Unnecessary, Slate.com (July 23, 2020 5:45 PM), https://slate.com/news-and-politics/2020/07/pandemic-bar-exam-inequality.html.

[6] Sloan, supra note 1.

[7] See id.

[8] See id.

[9] Id.; see also Sam Skolnik, Over 1,000 New Lawyers Get Licenses Without Taking Bar Exam, Bloomberg Law (Jan. 4 2021 6:50 AM), https://news.bloomberglaw.com/business-and-practice/over-1-000-new-lawyers-get-licenses-without-taking-bar-exam.

[10] Hernández Escontrías, supra note 5.

[11] Id.

[12] Id.

[13] See id.

[14] Sloan, supra note 1.

[15] Id.

[16] See id.

[17] Skolnik, supra note 9.

[18] Id.

[19] See id.

Implications of JN Contemporary Art v. Phillips Auctioneers: New York’s Southern District Sets New Precedent in Ruling That COVID-19 Is a Natural Disaster Under Force Majeure

By: Alexandria Sedlak

A question that many businesses and employers had at the start of the COVID-19 pandemic was the following: “Will my contract’s force majeure provision protect me when COVID-19 and its consequent regulations prevent me from doing business as usual?”.[1]  Most people would naturally assume that the answer to this has to be yes to account for the pandemic changes, but the law is not so clear-cut.  In fact, though this question was born during the start of the pandemic in March 2020, courts nationwide are still dealing with the answer to this question one year later in March 2021.[2]  While each state court can make its own decision about this, a recent, and perhaps surprising, ruling from a district court in New York is telling of how the state plans to answer this question.[3] 

In the U.S. District Court for the Southern District of New York’s December 2020 ruling in JN Contemporary Art v. Phillips Auctioneers, the Court shifted its interpretation of what constitutes a force majeure event.[4]  The decision of the Court was that COVID-19 could be classified as a natural disaster, and as such, it would be included under the commonly used “natural disaster” term found in force majeure provisions.[5]  This means that the term “global pandemic” does not have to be included in a force majeure clause in order to trigger force majeure protections for COVID-19 issues.[6]  As long as the term “natural disaster” is found in the force majeure clause, which is very common, COVID-19 will generally count as a force majeure event in the state of New York as of this decision.[7]  The reason that this ruling is surprising is that New York has previously endorsed through its case law a narrow interpretation of force majeure clauses, meaning that an event must be specifically listed in the force majeure clause in order to be deemed a force majeure event and excuse a party’s nonperformance.[8]

What does this mean for the future of force majeure in New York?  Preliminarily, this means that COVID-19 could qualify as a natural disaster under force majeure clauses.[9]  Force majeure clauses that do not specifically mention COVID-19 or global pandemics could still cover pandemics, as long as the force majeure clauses include the term “natural disaster.”[10]  Though the other courts in New York are not required to follow the decision of the Southern District of New York in this case, courts have already started looking to each other for guidance on this issue, with some courts even incorporating the decisions of other jurisdictions into their own rulings.[11]  For example, the Court in this case looked to the decisions of the Pennsylvania Supreme Court in Pennsylvania Democratic Party v. Boockvar and Friends of Danny DeVito v. Wolf to come to this holding for JN Contemporary Art.[12]  Additionally, the U.S. District Court for the Southern District of Texas looked to the decision in JN Contemporary Art to finalize its holding in Easom v. US Well Services that COVID-19 qualifies as a natural disaster for purposes of force majeure or contract termination.[13]   

Thus, there seems to be a current trend “supporting those whose business [and employment] obligations were negatively impacted by COVID-19.”[14]  For employers, and even employees, the recent court rulings stating that COVID-19 classifies as a natural disaster, and ergo as a force majeure event, would make it easier for them to claim force majeure for both the current and future pandemics.  This is because the term “natural disaster” is frequently included in force majeure clauses found in employment contracts.[15]  Therefore, employers or employees whose jurisdiction has classified COVID-19 as a natural disaster can rightfully declare force majeure to protect themselves for any unmet contractual obligations that were due to the COVID-19 pandemic.[16] 

The results of this interpretation are extremely beneficial for those employers or employees that were unable to meet their contractual obligations, but this does not apply in jurisdictions where no decisions have been made yet.[17]  To be cautious in this time of uncertainty, it would be safer to draft provisions that include pandemics as a force majeure event.  Though advancement of the interpretation found in JN Contemporary Art throughout the court system would be best for employers and others who seek to claim force majeure due to global pandemics, until more courts decide on this issue, the exact impact and reach of these preliminary cases is still unknown.

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[1] Kimberly Daily & Matthew Rawlinson, Pandemic Force Majeure Interpretations May Be Shifting, law360, (Mar. 3, 2021), https://www.law360.com/employment/articles/1360800/pandemic-force-majeure-interpretations-may-be-shifting?nl_pk=7d705b80-7942-4eda-88db-46490fdb91fd&utm_source=newsletter&utm_medium=email&utm_campaign=employment.

[2] Id.

[3] Id.

[4] Id.

[5] JN Contemporary Art v. Phillips Auctioneers, No. 20cv4370, 2020 WL 7405262, at *7, 9 (S.D.N.Y. Dec. 16, 2020); id.

[6] Daily & Rawlinson, supra note 1.

[7] Daily & Rawlinson, supra note 1.

[8] Daily & Rawlinson, supra note 1.  See, e.g., Rochester Gas & Elec. Corp. v. Delta Star, No. 06-cv-6155, 2009 WL 368508, at *7 (W.D.N.Y. Feb. 13, 2009); Avila v. Travel Dynamics, No. 5631/2001, 2002 WL 31056702, at *2 (N.Y. Sup. Ct. Sept. 5, 2002); Kel Kim Corp. v. Cent. Mkts., 519 N.E.2d 295, 295 (N.Y. 1987).

[9] Daily & Rawlinson, supra note 1.

[10] Daily & Rawlinson, supra note 1.

[11] See Daily & Rawlinson, supra note 1.

[12] Daily & Rawlinson, supra note 1.  See Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345, 370 (Pa. 2020) (holding that the COVID-19 pandemic classifies as a natural disaster); Friends of Danny DeVito v. Wolf, 227 A.3d 872, 889 (Pa. 2020).

[13] Daily & Rawlinson, supra note 1.  See Easom v. US Well Services, No. H-20-2995, 2021 WL 520712 (S.D. Tex. Feb. 10, 2021). 

[14] Daily & Rawlinson, supra note 1.

[15] See Christopher Kercher, et al., Novel Legal Challenges from the New Coronavirus: Force Majeure,  N.Y. Bar Ass’n, (Apr. 6, 2020), https://nysba.org/novel-legal-challenges-from-the-new-coronavirus-force-majeure/.

[16] See Daily & Rawlinson, supra note 1.

[17] Daily & Rawlinson, supra note 1.

Social Media Use for Union Organizing

By: Darling Gutierrez

Due to Covid-19, unions have had to find other ways to communicate with their members and mobilize employees.  Unions have turned to social media to be able to communicate easily without the limitations of having to gather in public at a membership meeting.  Unions are using Facebook, Twitter, Instagram, LinkedIn and Zoom to communicate.^[1]  Social media allows unions to reach more people than it could before.^[2] 

In 2014, the NLRB held that workers could use their work email and other IT systems to discuss wages and other workplace issues on nonworking time.^[3]  In 2019, the NLRB reestablished the right of employers to restrict, on a nondiscriminatory basis, the use of work emails and other IT systems for non-work-related purposes, including union organizing activities, overruling its previous decision from 2014.^[4]  Now that unions are taking advantage of social media, this ruling will have less of an impact on union communications.

The use of social media has led to more innovative ways for unions to share information, including the use of geofencing (the creation of a virtual perimeter for a geographical location) in place of physical picketing.^[5]  A radius is set around a particular address and anyone in that area will receive any ads or messages from the group who set up the advertising.^[6]  This method of communication allows unions to send their message to the customers and anyone around the specific employer the union is picketing instead of gathering in large groups, which is difficult during this time.

Social media might be the solution for unions to increase membership, especially for targeting younger workers, and to grow the labor movement because unions have struggled with declining union membership.^[7]  In 2020, only about 10.8% of American workers were members of unions according to the U.S. Bureau of Labor Statistics.^[8]  In 1984, the union membership rate was 20.1%, almost twice as high as the current membership rate.^[9]

Social media has already helped with organizing efforts in 2016, during a Verizon strike;^[10] in 2018, during a teachers’ strike in West Virginia, Arizona and Oklahoma;^[11] and in 2020, during a SEIU Healthcare Michigan strike.^[12]  Social media use by unions has proven to be useful to reach younger workers across different locations and time zones.

With the use of social media comes the concern of making sure that whatever is said online is allowed. For example, “disparaging an employer’s products isn’t protected activity under the National Labor Relations Act.”^[13]  With increased social media use, employers fear employees expressing their opinions, which can be damaging to the company if they are negative.^[14]  The NLRA protects the rights of employees to communicate on social media regarding work conditions, but employers are allowed to take disciplinary actions if the communications are not protected by the Act.^[15] 

The NLRB has given guidance on which social media used by employees employers can regulate because the NLRA does protect some employee speech, including posts on social media.^[16]  The NLRB justifies limitations on employee expression on social media because it wants to also consider the employer’s interest in protecting its reputation.^[17]  The NLRB has found the prohibition of statements about the company to the public lawful, but the prohibition of statements about the company to other employees is not lawful.^[18] Social media communication allows unions to organize without employers knowing.  For employers, engaging and communicating with employees through social media can help during union organizing, however, it is recommended that this be an established system before union organizing to defend the employer from unfair labor practice charges.^[19]  Unions should keep learning effective ways to use social media to increase their membership and employers should become acquainted with how to use social media to reach their employees as wel

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^[1] Danielle Nichole Smith, Social Media Expands Unions’ Reach, But Pitfalls Remain, Law360 (Feb. 2, 2021) https://www.law360.com/employment-authority/labor/articles/1350737/social-media-expands-unions-reach-but-pitfalls-remain.

^[2] Id.

^[3] NLRB, Board Restores Employer’s Right to Restrict Use of Email, Nat’l Lab. Rel. Board (Dec. 17, 2019) https://www.nlrb.gov/news-outreach/news-story/board-restores-employers-right-to-restrict-use-of-email; The Economist Intelligence Unit, Unions and the Power of Social Media, Prudential at 3 (Jan. 2019) http://tafthartley.prudentialretirement.com/_assets/documents_pdfs/taft_article6_socialmedia.pdf.

^[4] NLRB Confirms Prohibiting Use of Company Equipment, Including Work Emails, is Lawful, Fisher Phillips (Dec. 18, 2019) https://www.fisherphillips.com/resources-alerts-nlrb-confirms–prohibiting-use-of-company.

^[5] Smith, supra note 1.

^[6] Sophie Thurber, Incorporating Geofencing Into Your Campaign Advertising, The Campaign Workshop (Jul. 16, 2020) https://www.thecampaignworkshop.com/blog/campaign-tactics/campaign-advertising.

^[7] See The Economist Intelligence Unit, supra note 3 at 1, 3.

^[8] Union Members Summary, U.S. Bureau of Lab. Stat. (Jan. 22, 2021) https://www.bls.gov/news.release/union2.nr0.htm.

^[9] Id.

^[10] The Economist Intelligence Unit, supra note 3 at 4.

^[11] Zack Quaintance, Social Media Helps Public-Sector Labor Organizing Efforts, Gov’t Tech. (Mar. 16, 2018) https://www.govtech.com/gov-experience/Social-Media-Helps-Public-Sector-Labor-Organizing-Efforts.html.

^[12] Smith, supra note 1.

^[13] Id.

^[14] Susan W. Kline & Carita Austin, NLRB Expands Employer Options for Social Media and Non-Disparagement Rules, The Nat’l L. Rev. (Aug. 26, 2020) https://www.natlawreview.com/article/nlrb-expands-employer-options-social-media-and-non-disparagement-rules.

^[15] The NLRB and Social Media, Nat’l Lab. Rel. Board, https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/the-nlrb-and-social-media (last visited Mar. 8, 2021).

^[16] Id.

^[17] Id.

^[18] Id.

^[19] Melanie Webber, Social Media: A Defense Against Union Organizing?, Fisher Phillips (Apr. 1, 2019) https://www.fisherphillips.com/resources-newsletters-article-social-media-a-defense-against-union-organizing.