Defining Right-to-Work States and Why More States Should Adopt Them

By: Gary Kenney

Right-to-work laws are state laws that prohibit labor unions from implementing “union security clauses.”[1]  Union security clauses are “provision[s] in [] union contract[s] requiring employees, as a condition of employment, to maintain union membership or pay union dues or requiring an employer to check off dues from employees’ wages.”[2]  However, the Supreme Court recently held that “public employees do not have to pay fees to unions to cover the costs of collective bargaining.”[3]  This decision overturned regulations in twenty-two states’ policies known as “fair share” policies.[4]  Fair share policies required people who were members of unions they did not choose to be members of to pay fees for collective bargaining.[5]  In comparison, there are twenty-seven states with Right-to-work provisions.[6]  In 2016, the Sixth Circuit rejected a ruling from the Western District of Kentucky that right-to-work laws were preempted by the National Labor Relations Act.[7]

There are several reasons why more states should adopt right-to-work policies.  First is the belief the union membership will help workers receive better wages and benefits, though is not always true.[8]  From 2002 to 2012, the growth of personal income was “12.8 percentage points higher in right-to-work states than forced-union states.”[9]  In addition, states with right-to-work laws saw an increase in job creation at more than double the rate of states without right-to-work laws from 2001 to 2006.[10]

There is also a belief that political contributions made by unions are not always representative of the union’s members.[11]  This led to the Supreme Court decisions in Communications Workers of America v. Beck and Janus v. AFSCME.  In Beck, the Supreme Court ruled that unions can only collect fees from non-members in relation to collective bargaining and not for other purposes.[12]  In Janus, the Supreme Court ruled that public sector unions cannot force employees to pay dues for collective bargaining due to the political nature of the contributions.[13]  The decision in Beck created what are now known as “Beck Rights.”[14]  These rights allow union members to request a refund of their dues if the money will not be used for collective bargaining purposes.[15]  Since the Janus ruling, “Beck Rights” are only applicable to private sector unions.[16]  However, if more states adopted right-to-work laws, employees would not have to worry about their union misappropriating their mandatory dues paid to the union because of a union security clause.[17]

Right-to-work laws still allow employees the ability to gather together and bargain for extra rights, but without the added factor of unions establishing mandatory dues.[18]

[1] NLRB, Employer/Union Rights and Obligations, https://www.nlrb.gov/rights-we-protect/rights/employer-union-rights-and-obligations.

[2] US Legal, Union Security Clause Law and Legal Definition, https://definitions.uslegal.com/u/union-security-clause/.

[3] Alana Semuels, Is This the End of Public-Sector Unions in America?, The Atlantic (June 27, 2018), https://www.theatlantic.com/politics/archive/2018/06/janus-afscme-public-sector-unions/563879/.

[4] Id.

[5] Id. 

[6] NLRB, supra note 1.

[7] United Auto., Aerospace & Agric. Implement Workers of Am. v. Hardin Cty., 842 F.3d 407, 422 (6th Cir. 2016).

[8] Travis H. Brown, Right-to-Work Laws v. Forced Unionization: Happier Workers Have the Freedom to Choose, How Money Walks (June 10, 2015), https://www.howmoneywalks.com/right-to-work-laws-vs-forced-unionization-happier-workers-have-the-freedom-to-choose/.

[9] Id. (citing Arthur B. Laffer Et Al., An Inquiry into the Nature and Causes of the Wealth of States: How Taxes, Energy, and Worker Freedom Change Everything (2014)).

[10] Paul Kersey, Right-to-Work Mythbusters, Mackinac Center for Public Policy (Jan. 28, 2008), https://www.mackinac.org/9180.

[11]  See Use of Dues for Politics, Unionfacts, https://www.unionfacts.com/article/political-money/.

[12] Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 780 (1988).

[13] Janus v. AFSCME, 138 S. Ct. 2448, 2486 (2018).

[14] Robert P. Hunter, Why Beck Rights are Important to Workers, Mackinac Center for Public Policy (May 1, 1998), https://www.mackinac.org/1021.

[15] Id.

[16] Janus, 138 S. Ct. at 2486.

[17]  See Use of Dues for Politics, supra note 11.

[18] Kersey, supra note 10.

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Is Secretly Recording in the Workplace Legal?

By: Francesca Gaspari

The number of employers accused of sexual harassment has been on the rise in recent years.[1] There have been a number of movements that demand employers and employees be cautious and monitor every word and action they make in the workplace.[2] Right to privacy in the workplace is a “hot topic” because of the #MeToo era, combined with the increased use of technology in daily lives.[3] There has recently been instances of employees secretly recording managers in preparation for litigation.[4] “Secret recordings are ‘definitely on the increase,’ not only in whistle-blower cases but also under Title VII of the Civil Rights Act of 1964 and in retaliation cases . . . Such recordings frequently arise in sexual-harassment cases, where an employee will try to use a recorded statement as a smoking gun.”[5] The question of whether privately recording an employer without consent is lawful varies upon the jurisdiction.[6] Some jurisdictions require that only one of the parties to the conversation need consent; typically, that is the person who is recording.[7] The bigger issue with recordings in the workplace is the amount of control the employer has. The question then becomes: Can your employer prohibit you from secretly recording conversations that take place in the workplace?

One study found that seventy-five percent of employees who experience harassment and spoke out about it faced retaliation.[8] Due to this disturbing statistic, employees have been silent for fear of not being believed. The Equal Employment Opportunity Commission (“EEOC”) has the powerful position of investigating charges of discrimination to make the overall determination as to whether the claim was more than an allegation.[9] The laws governing recordings and protections with privacy in communications fall under the Wiretap Act, which requires there to be more than someone simply eavesdropping on a phone call.[10] The Wiretap Act provides that employers and supervisors have an expectation of privacy in their office and meetings, and thus, it would be a violation to record at time when there is a reasonable expectation of privacy.[11] Risks associated with recoding in the workplace go beyond ethics; it can create personal issues as well as protected confidential business dealings.[12]

An employer expects its employees to respectfully refrain from disclosing work materials.[13] Many employees actually outright ban employees from recording within the workplace.[14] “Secret workplace recordings have also provided an employer with an appropriate basis to terminate an employee’s employment.”[15] However, the ban must comply with the National Labor Relations Act; former President Barack Obama ruled that placing restrictions on employees’ right to record at work would violate the National Labor Relations Act.[16] Conversely, upon the election of President Donald Trump, that previous ruling was overturned by The Boeing Co., and the courts now look to a balancing test.[17] The National Labor Relations Board (“NLRB”) considers the substantial legitimate interests in preventing recordings that outweigh the risk of interfering with already protected rights under the NLRA.[18]

“The NLRB’s new approach on recording bans only applies to rules that have little overlap with Section 7 rights. . . . A rule that expressly prohibits activities that are protected by the NLRA, such as recordings of protected workplace protests, or preservation of evidence for use in complaining activities, likely will be treated as unlawful.”[19]

Recording in the workplace will be permitted when the employee is acting together for the greater good, with the mutual aid of other employees for protections.[20] Thus, employers may prohibit the use of recording only if it complies with the protections already set forth by the NLRB.

 

[1] Jennifer Koza, 5 Disturbing Sexual Harassment Statistics We Can’t Afford to Ignore, FAIRYGODBOSS, https://fairygodboss.com/articles/sexual-harassment-statistics.

[2] Elisabeth Buchwald, In the wake of #MeToo, more U.S. companies reviewed their sexual harassment policies, MarketWatch (Jul. 14, 2018), https://www.marketwatch.com/story/in-the-wake-of-metoo-more-than-half-of-companies-have-reviewed-their-sexual-harassment-policies-2018-07-10.

[3] Privacy in the Workplace: Overview, FindLaw, https://employment.findlaw.com/workplace-privacy/privacy-in-the-workplace-overview.html (last visited Apr. 14, 2019).

[4] Allen Smith, Employees Secretly Record Managers for Litigation, SHRM (Aug. 8, 2018), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/secret-recordings.aspx.

[5] Id.

[6] Laws on Recording Conversations in all 50 States, MWL, 1, https://www.mwl-law.com/wp-content/uploads/2013/03/LAWS-ON-RECORDING-CONVERSATIONS-CHART.pdf (last updated Feb. 26, 2019).

[7] Id.

[8] Koza, supra note 1.

[9] Authority & Role, EEOC, https://www.eeoc.gov/eeoc/index.cfm (last visited Apr. 14, 2019).

[10] 18 U.S.C. § 2511.

[11] Ronda K. O’Donnell, Employers Caught on Tape – Are Secret Workplace Recordings Legal?, The Legal Intelligencer, (Nov. 19, 2018 at 10:38 AM), https://www.law.com/thelegalintelligencer/2018/11/19/employers-caught-on-tape-are-secret-workplace-recordings-legal/?slreturn=20190304131249.

[12] Nina Massen, Recording Conversations at Work, SHRM (Oct. 23, 2014), https://www.shrm.org/hr-today/news/hr-magazine/pages/1114-recordings-at-work.aspx.

[13] Alexander J. Passantino, Wage and Hour Division (WHD), U. S. Dep’t of lab. (Jan. 15, 2009), https://www.dol.gov/Whd/opinion/FLSA/2009/2009_01_15_15_FLSA.htm.

[14] Benjamin A. Johnson and Devon C. Sherrell, Navigating Bans on Recording Devices in the Workplace and Employee Rights, Robinson Bradshaw (Jul. 25, 2017), https://www.robinsonbradshaw.com/newsroom-publications-Navigating-Recording-Device-Bans-in-Workplace.html.

[15] O’Donnell, supra note 11.

[16] Zoe Argento and Julia Arnold, Hit the Pause Button: The Implications of Recording in the Workplace, Littler Insight (Sept. 4, 2018), https://www.littler.com/publication-press/publication/hit-pause-button-implications-recording-workplace.

[17] Id.

[18] Id.

[19] Id.

[20]  29 U.S.C. § 158(a)(1).

So, you think you want to pay your employees with Cryptocurrencies, huh? Well, think again. . .

By: Ryan Lonergan

Cryptocurrencies are bits of code that exclusively live online, which act as a currency.[1] Cryptocurrencies are blocks on a public ledger, also known as the blockchain.[2] The blockchain records and registers all transactions that take place using the cryptocurrency.[3]  This allows for a seamless, unrestricted, and efficient transaction among parties without the need for relying on a third party.[4]  The most popular of cryptocurrencies is Bitcoin.[5] Bitcoin was created in 2009 by an individual or team of individuals that go by the name of Satoshi Nakamoto.[6]  Bitcoin hit an all-time valuation of nearly $18,000.00 per Bitcoin in December of 2017.[7] This valuation far exceeds its initial value of around $13.00 per Bitcoin in 2013.[8]  This extreme valuation sparked interest in the technology’s utility by many laypeople and savvy investors, but also opened the door for others to develop and publicize new or existing cryptocurrencies, such as Ether/Ethereum.[9]

Misleading titles aside, most sovereign nation (including the United States) currently recognizes any cryptocurrency as a valid currency.[10]  At the forefront of controversy is the reluctance to recognize a currency of which that is not backed by any country or valuable material, like gold.[11]  Further, countries are skeptical because of the uncertainty associated with cryptocurrencies.[12]  However, financial gurus and innovative laypeople are eager to the develop uses for the independent currency, especially in ways to circumvent currency exchange fees and possible corrupt third parties.[13]  With this wave of interest, individuals have begun to opt into a system, where  their paychecks would include or even be fully substituted by cryptocurrencies.[14] Unfortunately, this request is met with a slew legal obstacles.

The first legal obstacle is the Fair Labor Standards Act (“FLSA”) which “require[s] payments of the prescribed wages, including [minimum wage and] overtime compensation, in cash or negotiable instrument payable at par.”[15]  As far as the United States Government is concerned, cryptocurrencies are neither cash nor a negotiable instrument payable at par.[16]  This means that an employer cannot pay an employee’s paycheck fully in cryptocurrencies under the current law.  There is no current united stance on the treatment of cryptocurrencies in the United States.  Multiple federal agencies have taken the liberty to publish their ideal treatment of cryptocurrencies.  The Internal Revenue Service (“IRS”) has published a notice explaining that the IRS will treat cryptocurrencies as property for tax return purposes.[17]  The Commodity Futures Trading Commission (“CFTC”) was awarded a decision where a judge stated “that the CFTC has the power to prosecute fraud” involving virtual currency.[18]  Lastly, the Securities and Exchange Commission (“SEC”) has advised all investors of the risks of cryptocurrencies and is seeking to urge judges to empower the SEC to regulate cryptocurrencies in general, outside of the controlled event of Initial Coin Offerings.[19]  All of these agencies are acting independently to urge law makers to extend the authority to regulate cryptocurrencies to their agency, leaving laypeople and many professionals in a disarray of legal complexities.[20]

Congress should unite the agencies and create stability by amending the FLSA, recognizing the technology as currency, and allowing cryptocurrencies to develop in society.  Further, the judiciary has already taken steps to help this rewriting of the law to take place.[21]  A district court judge in the SEC v. Shavers, decided that cryptocurrencies are already being used as money and should be regulated as such.[22]  This rewriting of the FLSA would be a step toward a future of embracing technology.

[1] J. Scott Colesanti, Trotting Out the White Horse: How the S.E.C. Can Handle Bitcoin’s Threat to American Investors, 65 Syracuse L. Rev. 1 (2014).

[2] Nolan Bauerle, How Does Blockchain Technology Work?, Coin Desk, https://www.coindesk.com/information/how-does-blockchain-technology-work/ (last visited Apr. 2, 2019).

[3] See Id.

[4] Reuben Grinberg, Bitcoin: An Innovative Alternative Digital Currency, 4 Hastings Sci. & Tech. L.J. 159, 160 (2012).

[5]  Ray King, Top 10 Cryptocurrencies 2019: What’s The Most Popular Cryptocurrency Today?, BitDegree (Jan. 4, 2019), https://www.bitdegree.org/tutorials/top-10-cryptocurrencies/.

[6] Jonathan B. Turpin, Bitcoin: The Economic Case for a Global, Virtual Currency Operating in an Unexplored Legal Framework, 21 Ind. J. Global L. Studies 335, 337 (2014).

[7] Bitcoin Price History Chart, Buy Bitcoin Worldwide, https://www.buybitcoinworldwide.com/price/ (last visited Sept. 7, 2018).

[8] Id.

[9] Alexavier Guzman, The Ripple Effect of Cryptocurrencies, Forbes (Jan. 11, 2018 at 2:40 PM), https://www.forbes.com/sites/forbesproductgroup/2018/01/11/the-ripple-effect-of-cryptocurrencies/#e4f46cc60800; Tiffany L. Minks, Ethereum and the SEC: Why Most Distributed Autonomous Organizations Are Subject to the Registration Requirements of the Securities Act of 1933 and A Proposal for New Regulation, 5 Tex. A&M L. Rev. 405, 413 (2018) (“Ether is the virtual medium of exchange used on the Ethereum platform, also known as ’the crypto-fuel for the Ethereum network.’”).

[10] Prableen Bajpai, Countries Where Bitcoin Is Legal & Illegal (DISH, OTSK), Investopedia, https://www.investopedia.com/articles/forex/041515/countries-where-bitcoin-legal-illegal.asp (last visited Apr. 2, 2019).

[11] See Turpin supra note 6, at 335-336 (stating that a currency backed by a sovereign nation, but not backed by precious metal or other value material, is called a fait currency).

[12] Jonathan Todd Barker, Why Is Bitcoin’s Value So Volatile?, Investopedia (Dec. 27, 2017), https://www.investopedia.com/articles/investing/052014/why-bitcoins-value-so-volatile.asp.

[13] John Naughton, Why Bitcoin scares banks and governments, Guardian (Apr. 6, 2013), https://www.theguardian.com/technology/2013/apr/07/bitcoin-scares-banks-governments.

[14] Eric Mack, Corporate Bitcoin Salaries Are Now a Thing (Sort Of), Inc. (Dec. 15, 2017), https://www.inc.com/eric-mack/meet-publicly-traded-company-paying-employees-in-bitcoin.html.

[15] 29 C.F.R. § 531.27(a) (2018).

[16] See Bajpai, supra note 10.

[17] Internal Revenue Serv., U.S. Dep’t of the Treasury, Pub. No. 938, Notice, 2014-16 (2014), https://www.irs.gov/pub/irs-drop/n-14-21.pdf [hereinafter IRS].

[18] Commodity Futures Trading Commission, Release Number 7820-18 (2018), https://www.cftc.gov/PressRoom/PressReleases/7820-18; see CFTC v. My Big Coin Pay, Inc., 334 F. Supp. 3d 492 (D. Mass. 2018) [hereinafter CFTC].

[19] Kennedy K. Luvai, The End of the ICO Gold Rush? The Regulatory Squeeze on Token Offerings as A Funding Mechanism for Blockchain-Related Ventures, 31 Utah B.J. 20, 20 (2018) (explaining that this new form of funding for new cryptocurrency ventures include “[t]hese tokens [being] denominated in fiat currencies or, more commonly, in cryptocurrencies like bitcoin or ether. After issuance, tokens may be resold in secondary markets and have their own market value independent of the cryptocurrency used on the associated platform.”).

[20] See IRS, supra note 17; CFTC, supra note 18; Luvai, supra note 19.

[21] See Sec. & Exch. Comm’n v. Shavers, No. 4:13-CV-416, 2013 WL 4028182, at *1 (E.D. Tex. Aug. 6, 2013).

[22] See Id.

Paying Student Athletes and the Legal Ramifications

By: Armand Magardician

The “March Madness” season is in full swing, and with the annual tournament’s commencement comes the same question that always arises: Should student-athletes be paid? Many people express their personal opinions on this matter, but only one conclusion has ever been upheld by the courts; student-athletes cannot receive compensation for their time spent playing, other than in scholarship form.[1]

The National Collegiate Athletic Association (“NCAA”) was formed in 1910 for the purposes of governing collegiate athletics and to moderate schools’ participation in these activities.[2] Today, the NCAA has about 1,100 schools and is “organized into three divisions: Division I, Division II, and Division III.[3]” Division I is the division with the most well-known schools, and as such, provides the most financial aid to its student-athletes.[4] In its efforts to maintain the amateur status of its divisions, the NCAA has issued forth a rule that does not allow student-athletes to be compensated.[5] Student-athletes must be considered amateurs in order to be NCAA eligible.[6] Two notable examples of the NCAA’s encouragement of this rule are: (1) a student “athlete can lose [their] amateur status, for example, if he signs a contract with a professional team, enters a professional league’s player draft, or hires an agent”, and (2)  student-athletes “[are] prohibited – with few exceptions – from receiving [compensation] based on [their] athletic ability.[7]

There are two well known cases that have been brought by student-athletes that attempted to mend these rules that the NCAA has established: Berger v. National Collegiate Athletic Association, and O’Bannon v. National Collegiate Athletic Association.[8]

In Berger, Gillian Berger and Taylor Henning were two student-athletes at the University of Pennsylvania (“Penn”).[9] These students brought the claim that student-athletes deserve to be paid since they could be considered “employees” under the Fair Labor Standards Act of 1934 (“FLSA”).[10] The court rejected this argument, stating that collegiate sports are not included in the definition set forth in the FLSA and therefore, student-athletes do not deserve compensation.[11]

In O’bannon, a former college basketball player at UCLA, Ed O’bannon, came across a video game that was using his likeness.[12] O’bannon brought an anti-trust action against the NCAA asserting that student-athletes should be allowed to receive compensation if their names, images, and likeness is being used.[13] Through a series of analyses, the court came to the conclusion that student-athletes are allowed to receive the cost of a full scholarship, but no other form of payment.[14]

These two cases have made it clear that the NCAA’s amateurism rules restricting payment of student-athletes must be upheld.[15] There are many policy arguments that can be made against these holdings, however the law stands firm.[16] Student-athletes cannot be paid for the services outside of a full scholarship.[17] The NCAA, along with the federal courts’ decisions, should have no problem asserting this rule and squashing any claim against it.[18]

[1] Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 294 (7th Cir. 2016); O’Bannon v. Nat’ l Collegiate Athletic Ass’n, 802 F.3d 1049, 1053 (9th Cir. 2015).

[2]  O’Bannon, 802 F.3d at 1053.

[3] Id.

[4] Id. at 1056.

[5] Id. at 1054.

[6] Id.

[7] Id. at 1055.

[8] Berger, 843 at 285; O’Bannon, at 1049.

[9] Berger, 843 F.3d at 289.

[10] Id.

[11] Id. at 293.

[12] O’Bannon, 802 F.3d at 1055.

[13] Id.

[14] Id. at 1053.

[15] See Berger, 843 F.3d at 285; see also O’Bannon, 802 F.3d at 1049.

[16]  Id.

[17] O’Bannon, 802 F.3d at 1053.

[18] See Berger, 843 F.3d at 285; see also O’Bannon, 802 F.3d at 1049.

Class Action Waivers in Arbitration Agreements

By: Brittany Frank

On May 21, 2018, the United States Supreme Court decided three cases, which were all argued together in Epic Systems Corp. v. Lewis.[1]  These three cases were Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and NLRB v. Murphy Oil USA.[2]  Each case involved an arbitration agreement between an employee and employer that provided for individualized arbitration proceedings in the case of a dispute.[3]  However, employees in each case brought claims in federal court against their employer for violations of the Fair Labor Standards Act as a class action rather than an individual proceeding.[4]

Typically, courts are required to enforce arbitration agreements by the Federal Arbitration Act.[5]  But, the Federal Arbitration Act’s saving clause is a caveat, allowing a court to refuse enforcing an arbitration agreement “upon such grounds as exist at law or in equity for the revocation of any contract,”[6] or if a more general contract defense applies – “such as fraud, duress, or unconscionability.”[7]

The employees argued that the saving clause exception applied to an arbitration agreement with a requirement of individualized arbitration proceedings, and thus violated the Nation Labor Relations Act (NLRA).[8]  The employees pointed to section 7 of the NLRA, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively…, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[9]  Nonetheless, the United States Supreme Court refused to read “concerted activities,” protecting class actions because the remainder of the section only refers to activities directly related to collective bargaining.[10]

Previously, the United States Court of Appeals for the Seventh Circuit heard Lewis v. Epic Systems Corporation, holding that filing collective actions or class action lawsuits constituted “concerted activities” under section 7 of the NLRA, so arbitration agreements calling for individualized proceedings are not lawful and should not be enforced.[11]  Similarly, in Morris v. Ernst & Young, the United States Court of Appeals for the Ninth Circuit found that collective and class actions constituted concerted activities and refused to enforce an arbitration agreement requiring individualized arbitration proceedings.[12]  Nevertheless, the Supreme Court  reversed these decisions.[13]

Justice Ruth Bader Ginsburg’s dissent stated the Supreme Court’s decision was “egregiously wrong”,[14] explaining that “[f]or workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers.  A single employee, Congress understood, is disarmed in dealing with an employer.”[15]  This is due to the fact that “[i]ndividually, their claims are small, scarcely of a size warranting the expense of seeking redress alone.”[16]  In other words, courts “routinely recognize the importance of aggregate litigation because it often remains the only means of judicial relief where a plaintiff’s claim is too small economically to support individual litigation.”[17]  Employees must have the ability to act collectively in order to match their employer’s economic power in setting the standards of their employment.[18]

For these reasons, the Supreme Court’s decision in Epic Systems Corp., creates an imbalance of power between employers and employees.[19]  This decision is an obstacle for employees and places an overwhelming burden on employees to enforce the rights, protections, and benefits that the law intends to give employees.[20]

 

[1] Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1612 (2018).

[2] Id.

[3] Id. at 1616.

[4] Id.

[5] Id.

[6] Id. (citing 9 U.S.C.A. § 2 (2015)).

[7] Id.

[8] Id.

[9] Id. at 1617 (citing 29 U.S.C. § 157 (2019)).

[10] Id.

[11] Lewis v. Epic Systems Corp., 823 F.3d 1147, 1152 (7th Cir. 2016), cert. granted, 137 S.Ct. 809 (2017), rev’d, 138 S.Ct. 1612 (2018).

[12] Morris v. Ernst & Young, LLP, 834 F.3d 975, 975 (9th Cir. 2016), cert. granted, 137 S.Ct. 809 (2017), rev’d, Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), vacated, 894 F.3d 1093 (9^th Cir. 2018).

[13] See Epic Systems Corp., 138 S.Ct. at 1616 (2018).

[14] Id.  at 1633 (Ginsburg, J., dissenting).

[15] Id.

[16] Id.

[17] Nantiya Ruan, What’s Left to Remedy Wage Theft? How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers, 2012 Mich. St. L. Rev. 1103, 1118 (2012).

[18] Epic Systems Corp., 138 S.Ct. at 1634 (2018) (Ginsburg, J. dissenting).

[19] See id. at 1640 (“[T]he Court ignores the reality that sparked the NLRA’s passage: Forced to face their employers without company, employees ordinarily are no match for the enterprise that hires them.  Employees gain strength, however, if they can deal with their employers in numbers.”).

[20] See id. at 1637 (“[I]n enacting § 7 of the NLRA, Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment.”) (citing NLRB v. City Disposal Systems Inc., 465 U.S. 822, 835 (1984)).

 

Soccer: A Universal Game Where Performance Should be Measured by Success in Competitions

By: Joseph Farneti

Earlier this month, soccer players on the United States Women’s National Team (USWNT) filed a lawsuit in federal court against the United States Soccer Federation (USSF).[1] The players allege that the USSF are in violation of the Equal Pay Act because the United States Men’s National Team (USMNT) is compensated more.[2]

The Equal Pay Act prohibits wage discrimination based on sex, meaning men and women cannot receive different wages for the same work.[3] To determine if there is a violation of the Equal Pay Act a “careful analysis of relevant job descriptions and assessment of whether the jobs require equal skill, effort and responsibility and are performed under similar working conditions” must be done.[4] But, “[s]ometimes there are lawful explanations for differing wage rates,” such as “a seniority system, a merit system, or a system that measures earnings ‘by quantity or quality of production.’”[5]

Soccer is a universal sport played by many different people. Because the USWNT and the USMNT both play by the same rules they are playing the same game.[6] Additionally, soccer is inexpensive, affording people from different socioeconomic backgrounds the same opportunity to play the sport.[7] Moreover, soccer is played at highly competitive levels, as well as less competitive levels.[8] Highlighting the fact that soccer is a universal sport by incorporating the socioeconomic aspect of soccer strengthens the USWNT’s claim.[9]

To the naked eye, it may seem that the USMNT and the USWNT are similar because they both play soccer for the United States National Team.[10] Yet, the USWNT players claim they receive 38% less compensation for playing the same number of yearly games as the USMNT.[11] The USSF may support this decision if they show their pay structure is based on a merit system.[12] However, the USWNT has proof their international competition success far surpasses the USMNT’s, which is a valid reason the USWNT should be paid more than the USMNT.[13] The USWNT has won three Women’s World Cups and four Olympic gold medals, which are both viewed by millions worldwide,[14] whereas the USMNT has won neither.[15]

Since the USWNT surpassed the USMNT’s performance, so at the very least the USWNT’s compensation should be equal to the USMNT’s compensation. But, when comparing the USWNT’s and the USMNT’s international performance, the USWNT’s compensation should exceed the USMNT’s compensation. In conclusion, this pay discrepancy by the USSF is a clear violation of the Equal Pay Act.

[1] Michael McCann, Inside USWNT’s New Equal Pay Lawsuit vs. U.S. Soccer-and How CBA, EEOC Relate, Sports Illustrated (Mar. 8, 2019), https://www.si.com/soccer/2019/03/08/uswnt-lawsuit-us-soccer-equal-pay-cba-eeoc-gender-discrimination.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Dan Russell, The International Football Association Board: Laws of the Game 2018/2019, FIFA, 11 (June 2018), https://img.fifa.com/image/upload/khhloe2xoigyna8juxw3.pdf.

[7] Brian Henninger, Why Is Soccer The World’s Most Popular Sport?, Dynasty Sports (Feb. 12, 2018), https://www.shopdynastysports.com/blogs/news/why-is-soccer-the-world-s-most-popular-sport.

[8] Jerry Carino, Talking soccer: Why U.S. women outperform our men, from someone who would know, APP (updated Aug. 7, 2018, 8:17 PM), https://www.app.com/story/sports/college/2018/08/06/u-s-womens-national-soccer-team-sky-blue/870860002/.

[9] Henninger, supra note 7.

[10] Will Hobson, Women’s soccer players sue U.S. federation for gender discrimination, Washington Post (Mar. 8, 2019), https://www.washingtonpost.com/sports/dcunited/womens-soccer-players-sue-us-federation-for-gender-discrimination/2019/03/08/c90ca69c-41ba-11e9-922c-64d6b7840b82_story.html?noredirect=on&utm_term=.7ebebfccb6d9.

[11] McCann, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Hobson, supra note 11.

Dress Codes: A New Way to Racially Discriminate

By: Nicole Fluke

Sharon Dorram Color at Sally Hershberger, a luxury hair salon on the Upper East Side of New York City, is known for its celebrity clientele and expensive services.[1]  During the summer of 2015, three African American women were hired as receptionists for the famous salon.[2]  Two of the women wore their hair in dreadlocks and one woman wore an afro.[3]  Sharon Dorram, one of the salon’s owners, ordered the general manager, David Speer, to create and enforce a dress code mandating employees wear “black and that bluejeans, ripped clothing and nose rings [are] forbidden, [and] it required shoulder-length hair to be pulled up or back.”[4]  Dorram denied that this dress code was implemented because of the three new receptionists’ races.[5]  Instead, Dorram claimed the new policy was to keep the salon’s employees dressed and groomed in the same “traditional” style found in the many other Upper East Side salons.[6]  However, Speer provided text messages from Dorram ordering the dress code, showing that it was “racially motivated.”[7]  The text message from Dorram to Speer stated, “[t]oday looked awful, Rail yne (sic) had her dreads down; Regine just got hers to match as long and of course Tarren (sic) All 3 at desk and we look like we should be on E. 134^th Street. Sorry nor (sic) racist . . .  we are on Mad. And 71^st.”[8]  Additionally, Dorram said, “[c]an’t be 3 girls at the desk. 2 like this and 1 w/ big Afro. What is our image Please instruct them not to wear hair down.”[9]

Following the implementation of this dress code, complaints were brought by current and former employees against the salon to the New York City human rights commission alleging racial discrimination.[10]  The first complaint was filed in July of 2016 by Speer, a white man, stating “he felt sickened by being asked to implement an employee hair policy that he said was applied more to black workers than white ones.”[11]  Then in December of 2016, a former receptionist, an African American woman, filed a second complaint, alleging she was the target of racial discrimination while working there.[12] The third complaint was filed in June of 2018 by another receptionist, a hispanic woman, claiming she was told to “steer clients away from stylists who refused to sign a document attesting to the fairness of the salon’s dress code.”[13]

The second case, brought by the African American woman, was brought before the Eleventh Circuit Court of Appeals and alleged racial discrimination when she was denied employment due to her dreadlocks.[14]  The court noted, “precedent holds that Title VII prohibits discrimination based on immutable traits.”[15]  An immutable trait is defined as one that is “not capable of or susceptible to change.”[16]  The plaintiff argued that dreadlocks are an immutable characteristic of her race.[17] After the case was dismissed by the district court, the Equal Employment Opportunity Commission appealed to the Court of Appeals, who affirmed in part.[18]  The Court of Appeals stated that although dreadlocks are “culturally associated with race,” the plaintiff failed to assert that they are “an immutable characteristic of black persons.”[19]

It may be difficult proving racial discrimination based on dress code requirements under Title VII.[20]  But, New York City is seeking greater protection for citizens by targeting “the unfair treatment of black people . . . [and] the right of New Yorkers to maintain their ‘natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”[21]  Local law realizes Title VII’s purpose, which broadly prohibits discrimination,[22] by acknowledging that dress codes, like Sharon Dorram Color at Sally Hershberger’s, are new forms of racial discrimination.[23]

[1] Stacey Stowe, Upper East Side Salon Under Investigation for Racial Discrimination, N.Y. Times (Feb. 23, 2019), https://www.nytimes.com/2019/02/23/style/sharon-dorram-color-sally-hershberger-hair-discrimination.html.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1020 (11th Cir. 2016).

[15] Id.

[16] Immutable, Merriam-Webster Dictionary (New ed. 2016).

[17] EEOC v. Catastrophe Mgmt. Sols., 852 F.3d at 1020.

[18] Id.

[19] Id.

[20] See id.

[21] Stowe, supra note 1.

[22] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973).

[23] Stacy Stowe, New York City to Ban Discrimination Based on Hair, N.Y. Times (Feb. 18, 2019), https://www.nytimes.com/2019/02/18/style/hair-discrimination-new-york-city.html.

How Many Jobs for Americans Was Amazon’s HQ2 Going to Deliver

By: Juan Olivo

In the past two years Tech powerhouse Amazon had a heavily publicized courting process to find a second headquarters location.[1]Last November,Amazon chose New York’s Long Island City and Virginia’s Crystal City as the winners of the HQ2 contest.[2]However, before the marriage got off the ground, Amazon and New York City endured a sloppy and publicized divorce.[3]Amazon and New York City left a promising relationship on the table.[4]New York City was supposed to provide Amazon with a $3 billion tax incentive, including $1 billion from Albany.[5]These incentives were contingent on Amazon fulfilling its end of the bargain, regarding its second headquarters location and job creation.[6]Amazon was supposed to provide a $2.5 billion investment and generate $27.5 billion in tax revenue in twenty five years.[7]Additionally, Amazon promised to create at least 25,000 jobsin the city,[8]which was a point of contention for many progressive leaders inNew York and ultimately caused the breakup.[9]Leaders in New York were particularly concerned how many jobs would go to New Yorkers.[10]

Amazon, like other technology companies, is well known for the most yearly approved H1B petitions.[11]In 2017,Amazon received over 2,500 H1B visa approvals.[12]Prior to Amazon’s separation with New York, Amazon stated that half of the 25,000 jobs would be technology related.[13]A spokesperson for the Crystal City HQ provided insight how Amazon would scale its workforce, stating “Amazon’s workforce will scale in very gradually – over a 12 year period.”[14]When the plans for HQ2 were announced,Amazon’s founder and CEO, Jeff Bezos, stated that two locations would attract world class talent for Amazon.[15]If Amazon is able to secure over 2,500 H1B approvals in a year,Amazon will need to allocate over a thousand approvals each for twelve years to satisfy the goal of 12,500 technology jobs, and over 600 over the course of twenty years.[16]Twenty years is the timeline used by Amazon projecting over $10 billion in incremental tax revenue from investment and job creation.[17]

Thus, in a concerned economy regarding booming technology companies increasing wage inequality because of the increasing wage gap between educated workers and low skilled workers,[18]progressive politicians may be rightfully worriedtheir constituents will not receive high paying technology jobs as promised.[19]These concerns have multiplied since Amazon failed to respondto the community’s concerns.[20]Amazon’s failure to address New Yorkers concerns beyond meager and opaque worker retraining programs flyers was overlooked by everyone involved that this marriage was doomed to fail.[21]

[1]Sam Shead, Amazon plans to build another US headquarters that’s ‘equal’ in size to its Seattle campus, Bus. Insider(Sept. 7, 2017, 8:00 AM), https://www.businessinsider.com/amazon-announces-hq2-2017-9.

[2]Valerie Bauerlein, et al.,, Amazon Announces HQ2 Winners, Wall Street J.(Nov. 13, 2018, 12:03 PM), https://www.wsj.com/articles/amazon-hq2-announcement-lic-crystal-city-nashville-1542121089.

[3]J. David Goodman, Amazon Pulls Out of Planned New York City Headquarters, N.Y Times(Feb. 14, 2019), https://www.nytimes.com/2019/02/14/nyregion/amazon-hq2-queens.html.

[4]Bauerlein et al., supra note 2.

[5]Id.

[6]Jacob Passy, This is what Amazon’s ‘HQ2’ was going to cost New York taxpayers, Mkt. Watch (Feb. 16, 2019, 4:13 PM), https://www.marketwatch.com/story/what-amazons-hq2-means-for-taxpayers-in-new-york-and-virginia-2018-11-14.

[7]SeeBauerlein et al., supranote 2.

[8]Id.

[9]Editorial Board, New York Returns 25,000 Jobs to Amazon,N.Y. Times(Feb. 14, 2019), https://www.nytimes.com/2019/02/14/opinion/amazon-new-york.html.

[10]Matthew Kazin, Amazon vs Ocasio-Cortez: 25K NYC job promise had holes, Fox Bus.(Feb. 16, 2019), https://www.foxbusiness.com/politics/amazon-vs-ocasio-cortez-25k-nyc-job-promise-had-holes.

[11]Monica Nickelsburg, Amazon’s visas for foreign-born workers surge 78% as H-1B approvals shift from Indian IT firms to US tech companies, Geekwire(Apr. 19, 2018, 10:07 AM), https://www.geekwire.com/2018/amazons-visas-foreign-born-workers-surge-78-h-1b-approvals-shift-indian-firms-us-tech-companies/.

[12]Zoe Bernard, Amazon Is Hiring More Skilled Immigrant H-1B Workers Than Any Other Tech Company, Inc.(Apr. 25, 2018), https://www.inc.com/business-insider/h1b-visa-amazon-microsoft-google-tech-companies-hire-immigrant-foreign-workers.html.

[13]Glenn Fleishman, Only Half of Jobs at Amazon’s HQ2 in Tech, Report Says, with the Balance in Support Positions, Fortune(Nov. 21, 2018), http://fortune.com/2018/11/21/amazon-new-headquarters-long-island-city-crystal-tech-jobs-half/.

[14]Alexia Fernandez Campbell, The US economy doesn’t need more Amazon jobs. It needs higher wages, Vox (Nov. 16, 2018, 12:20 PM), https://www.vox.com/policy-and-politics/2018/11/16/18095094/amazon-hq2-jobs.

[15]Day One Staff, Amazon selects New York City and Northern Virginia for new headquarters, Amazon (Nov. 13, 2018), https://blog.aboutamazon.com/company-news/amazon-selects-new-york-city-and-northern-virginia-for-new-headquarters.

[16]Fleishman, supranote 12.

[17]Day One Staff, supranote 14.

[18]Eduardo Porter, Tech Is Splitting the U.S. Work Force in Two, N.Y. Times(Feb. 4, 2019), https://www.nytimes.com/2019/02/04/business/economy/productivity-inequality-wages.html.

[19]SeeKazin, supranote 9.

[20]Id.

[21]Brad Stone, Amazon’s Escape From New York, Bloomberg Businessweek(updated Feb. 15, 2019, 12:51 PM),

https://www.bloomberg.com/news/articles/2019-02-14/how-amazon-lost-new-york.

How Ban the Box Actually Helps

By: Cara Pascarella

The inspiration for the Ban the Box movement began in 2014, when legislatures were seeking to improve employment discrimination for those with criminal records or ex-offenders.[1] When creating this legislation, activists had two main objectives.[2] They hoped to accomplish these objectives by removing any question about prior convictions from employment applications.[3] First, they hoped if ex-offenders knew they would not be asked to reveal their records, they would be more likely to fill out an application.[4] Second, they believed if employers were unaware of a prior record, they would be forced to evaluate an applicant based on their skill set, rather than stereotypes.[5]

Thomas H’s situation proves not only the importance of such a policy, but how it actually helps.[6] In 1990, Thomas worked as a security guard to help fund his aspirations of going to college to become a pharmacist.[7] One night, Thomas heard noises in the warehouse and drew his gun in fear for his life.[8] What he didn’t know, is that the F.B.I. and local police had just entered the warehouse to break up an illegal gambling arena in the basement.[9] Unfortunately, Thomas fired his gun, unaware of the authorities’ presence,  and killed two officers.[10] At trial, Thomas was “found guilty of two counts of manslaughter and sentenced to five years” in prison.[11] After being released, Thomas still  wished to become a pharmacist and hoped his criminal record would not prevent him from going to school and getting a job.[12] Luckily, the Ban the Box movement provided him a sense of comfort.[13]

Thomas was able to carry out his dream and finish pharmacy school after the state governor agreed to pardon him.[14] He applied for a job as a pharmacist at Walmart in 2015.[15] Walmart’s hiring team recognized Thomas’s circumstances and agreed that his conviction should not be indicative of his abilities.[16] Thanks to Walmart’s holistic approach when accessing applications, Thomas was able to accomplish his dreams and work as pharmacist.[17]

Thomas’s story is just one of many examples that show why the Ban the Box initiative is worth fighting for.[18] Not only does providing jobs for ex-offenders help them better adjust to life after prison, it also helps employers and the community.[19] Although some employers fear that hiring ex-offenders will increase their turnover rate amongst employees, at least one study shows otherwise.[20] One study followed 491 ex-offenders who were hired between 2003 and 2006, to see how many of them would still have the same position in 2009.[21] The results showed that ex-offenders were less likely to quit their job within the first forty months of employment, than those who don’t have a criminal record.[22] The hypothesis here, is that because ex-offenders find it so difficult to find a job, they are more likely to hold on to the one they receive.[23]

Additionally, the community as a whole can benefit by helping ex-offenders find employment.[24] More specifically, communities that provide jobs for ex-offenders generally experience an overall increase in public safety.[25] When state employment rates were analyzed, it was discovered that “a 1 percent drop in unemployment rates causes a 2 percent decline in burglary, a 1.5 percent decrease in larceny, and a 1 percent decrease in auto theft.”[26] To confirm this theory, studies have also shown that the number one factor affecting recidivism is employment.[27]

Although there are skeptics to removing questions regarding criminal history on employment applications, there is no doubt that it does help ex-offenders.[28] Sometimes, those like Thomas happen to be in the wrong place at the wrong time, and Ban the Box helps people overcome their past misfortunes.[29] It is important for the government to continue to push the Ban the Box initiative to help ex-offenders, employers, and their respective communities.[30]

[1] See About: The Ban the Box Campaign, Ban the Box, http://bantheboxcampaign.org/about/#.W7EgDBNKjOR (last visited Sept. 26, 2018, 12:03 PM).

[2] Benjamin Levin, Criminal Employment Law, 39 Cardozo L. Rev. 2265, 2298 (2018).

[3]  Id.

[4] Jonathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers’ Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 211 (2014).

[5] Id.

[6] Trone Private Sector and Educ. Advisory Council to the American Civil Liberties Union, Back to Business: How Hiring Formerly Incarcerated Job Seekers Benefits Your Company 6 (2017), https://www.aclu.org/sites/default/files/field_document/060917-trone-reportweb_0.pdf.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] See id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 5, 6, 11, 16.

[19] See generally, Research Supports Fair-Chance Policies, Nat’l Emp’t L. Project (Aug. 2016), https://www.nelp.org/wp-content/uploads/Fair-Chance-Ban-the-Box-Research.pdf; The S. Coal. for Soc. Justice, The Benefits of Ban the Box: A Case Study of Durham, N.C. 3 (2014), https://www.southerncoalition.org/wp-content/uploads/2014/10/BantheBox_WhitePaper-2.pdf.

[20] Ian B. Petersen, Toward True Fair-Chance Hiring: Balancing Stakeholder Interests and Reality in Regulating Criminal Background Checks, 94 Tex. L. Rev. 175, 189 (2015).

[21] Id.

[22] Id. at 190.

[23] Id.

[24] Research Supports Fair-Chance Policies, supra note 19.

[25] Id.

[26] Id.

[27] Id.

[28] See id.

[29] Trone Private Sector and Educ. Advisory Council to the American Civil Liberties Union, supra note 5.

[30] See generally Research Supports Fair-Chance Policies, supra note 19.

Standard for Retaliation Claims following EEOC v. North Memorial Health Care decision

By: Ryan Donahue

 Title VII prohibits many different kinds of discrimination,  including employer retaliation against employees for exercising their rights under the law.[1] Title VII states that an employer is prohibited from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter,”[2] or “because she has made a charge of discrimination or participated in any proceeding under this subchapter.”[3] The extent of the protection this section of Title VII provides can be tricky to understand, but a recent case in the 8^th Circuit has given further insight into how courts will treat this provision under Title VII.[4] 

In EEOC v. North Memorial Health Care, Emily Sure-Ondara applied for a position at North Memorial Hospital in its “Advanced Beginner Program.”[5] Ms. Sure-Ondara was fully qualified for the position, interviewed, and was ultimately extended an offer.[6] There was really only one problem with the job: it required Ms. Sure-Ondara to work every other Friday night.[7] Ms. Sure-Ondara was a Seventh Day Adventist, which meant that her religion prohibited her from working Friday nights.[8] North Memorial rescinded its employment offer after Ms. Sure-Ondara requested a religious accommodation not to work weekends.[9] The EEOC filed suit against North Memorial on Ms. Sure-Ondara’s behalf, claiming that North Memorial retaliated against Ms. Sure-Ondara for requesting a religious accommodation;[10]the EEOC did not claim any disparate treatment violation.[11]

For Ms. Sure-Ondara “[t]o establish a prima facie case of unlawful opposition-clause retaliation under § 2000e-3(a), the EEOC must present evidence that Sure-Ondara opposed a practice made unlawful.”[12] The EEOC argued that Ms. Sure-Ondara complained to North Memorial “that requiring her to work Friday shifts conflicted with her religious beliefs.”[13] The court rejected this argument, claiming “merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.”[14] The court further stated, “Consistent with the plain meaning of the word ‘oppose,’ the initial request for a religious accommodation simply does not ‘implicitly’ constitute opposition to the ultimate denial of the requested accommodation.”[15] The main idea of the court’s argument rested not only in its interpretation of Title VII’s retaliation section, but also on the fact that the EEOC could have and should have pursued a disparate treatment claim.[16] 

EEOC v. North appears, at least partially, to answer what actions taken by an employer can be considered retaliation under Title VII.[17] For employers, this case means they have a little more latitude in denying employment even after a religious accommodation request has been made.[18] On the other hand, it appears that employees are less protected under Title VII’s retaliation section.[19] However, they still have the option, as did Ms. Sure-Ondara and the EEOC[20], to file claims for disparate impact when situations like these arise.

[1] 42 U.S.C.S. § 2000e-3(a).

[2] Id.

[3] See Id; EEOC v. N. Mem’l Health Care, 908 F.3d 1098, 1101 (8^th Cir. 2018).

[4] Id.

[5] Id. at 1099.

[6] Id.

[7]  Id.

[8] Id.

[9] Id. at 1100.

[10] Id.

[11] Id. at 1101.

[12] Id.

[13] Id. at 1102.

[14] North Memorial, 908 F.3d. at 1102.

[15] Id.

[16] Id. at 1103.

[17] Id.

[18] Id.

[19] Id.

[20] Id.