Balancing Employee Privacy and Employer Rights

By: Francesca Gaspari

Employers, especially government agencies, face a balancing predicament when it comes to employee privacy interests and thoroughly investigating job applicants.[1]  Employers engage in extensive background checks to ensure safe working environments, qualified personnel, and a respectful atmosphere.[2]  Documents containing sensitive information may be acquired through a Freedom of Information Act request.[3]  Applicants of governments agencies are often required to give their private information in order to obtain employment.[4]  Background checks done in connection to governmental political positions are accessible to anyone who writes a request to the Freedom of Information Act (FOIA).[5]

In August of 2018, Abigail Spanberger, a democrat and former Central Intelligence Agency (CIA) officer, ran for Congress in the Seventh District of Virginia.[6]  While campaigning, her official personal file, which contained highly sensitive information, was released.[7]  Many questioned whether the release was genuine human error or a political stunt, in hopes to obtain Spanberger’s federal security clearance application.[8]  Spanberger’s clearance application contained personal and detailed information, including her hometown and the schools she attended.[9]

Investigators gather this information by talking to current and former neighbors, co-workers, and classmates.[10]  Unfortunately, that information could be published and disseminated by those who obtain it for the wrong reasons,[11] which happened to Spanberger, by exposing and exploiting her in the political realm.[12]  Spanberger’s information was acquired through a request to the FOIA.[13]  Should it be easy enough to acquire another person’s vital information in order to harm them?

Exemptions to FOIA allow a person to waive the protection of confidentiality and this is an unwarranted invasion of privacy.[14]  Although this information is unavailable to the public without a request, the opportunity exists  to submit a written request describing what they desire to seek.[15]  All the requesting party must include in the written request for “any agency record” is the identification of a proper agency, which then entitles them to the information.[16]  Many take advantage of the FOIA, using it as a tool in discovery procedures.[17]  Using FOIA in this way is an unwarranted invasion of a person’s privacy and tends to be used for law enforcement investigatory purposes.[18]

[1] Michael Sasso & Jeff Green, More Employers Adopting Continuous Background Checks on Employees, Insurance J. (Jul. 12, 2018), https://www.insurancejournal.com/news/national/2018/07/12/494922.htm.

[2] Alice Mills, Employment Law and the #MeToo Movement (last visited Nov. 20, 2018), https://www.employmentlawhandbook.com/resources/employment-law-me-too.

[3] Michael Tackett, Postal Service Improperly Divulged Spanberger’s Sensitive National Security File and Asks for it Back, NY Times (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/us/politics/cia-officer-house-election-super-pac.html.

[4] Sterling Solutions, Background Checks, Sterling (last visited Nov. 6, 2018) https://www.sterlingtalentsolutions.com/blog/category/background-checks/.

[5] FOIA, 5 U.S.C. §552 (1967).

[6] Laura Vozzella, Ex-CIA Officer’s Full Personnel File Released in ‘Human Error,’ Postal Service Admits, Wash. Post (Aug. 30, 2018), https://www.washingtonpost.com/local/virginia-politics/ex-cia-officers-full-personnel-file-released-in-human-error-postal-service-admits/2018/08/30/c13af592-ac7b-11e8-8a0c-70b618c98d3c_story.html?noredirect=on&utm_term=.a5ba5086df38.

[7] Id.

[8] Michael Tackett, C.I.A. Officer-Turned-Candidate Says PAC Obtained Her Security Application, NY Times (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/us/politics/cia-officer-house-election-super-pac.html.

[9] Id.

[10] All About Security Clearances, U.S. Dep’t of State (last visited Nov. 20, 2018), https://www.state.gov/m/ds/clearances/c10978.htm.

[11] Laura Vozzella, Ex-CIA officer running for Congress says GOP obtained her unredacted personnel file with sensitive information, Wash. Post (Aug. 29, 2018)

https://www.washingtonpost.com/local/virginia-politics/ex-cia-officer-running-for-congress-says-gop-obtained-her-unredacted-personnel-file-with-sensitive-information/2018/08/29/453b4878-ab97-11e8-a8d7-0f63ab8b1370_story.html?utm_term=.c4c4b374e406

[12] Tackett, supra note 3.

[13] Id.

[14] FOIA, supra note 5 at (b)(7)(D).

[15] How Do I Make a FOIA Request?, FOIA (last visited Nov. 4, 2018), https://www.foia.gov/how-to.html.

[16] Id.

[17] FOIA, supra note 5 at (b)(7)(D).

[18] FOIA, supra note 5 at (b)(7)(C).

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Child Slaves Will Get Their Day in Court

By: Nicole Fluke

It is common on the Ivory Coast for cocoa farmers to kidnap and enslave children to work their farms.[1] These children have long days, sometimes fourteen hours, similarly to the plaintiffs in Doe v. Nestle.[2] In addition to their own enslavement and abuse, they bore witness to other children who were beaten and tortured for trying to escape.[3] A lawsuit against Nestlé, Archer Daniels Midland, and Cargill was filed thirteen years ago, on July 14, 2005, by three individuals from a human rights organization called Mali and Global Exchange.[4] The plaintiffs alleged under the Alien Tort Statute (“ATS”) that these United States companies violated the law of nations by aiding and abetting the farmers who enslaved and beat them as children.[5]

Cargill had exclusive buying rights with Ivory Coast farmers.[6] They were content allowing the free market to keep cocoa costs low.[7] So, Cargill provided those farmers with financial and technical support, such as advance payments, personal spending money.[8] These actions perpetuated a system built on child slavery.[9] In order to supply training and technical support, Cargill visited the Ivory Coast cocoa farms several times each year.[10] Cargill was well aware that child slave labor is an epidemic in the Ivory Coast, especially since nineteen Malian child slaves were rescued from a farm that Cargill had exclusive buyer rights.[11] Nevertheless, Cargill continued providing support to these cocoa farmers, despite knowledge that their support would likely fund child slavery labor practices.[12] In fact, “the gravamen of the complaint is that [Cargill] depended on—and orchestrated—a slave-based supply chain.”[13]

When a United States company violates an international law or a treaty of the United States, “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only.”[14] In Kiobel II, the Supreme Court decided the “presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.”[15] A two-prong test would be applied to this interpretation: (1) does the ATS clearly indicate that it can be applied extraterritorially; and (2) if not, by looking into the Congressional “focus” of the ATS, is a domestic application of the statute to the facts at hand appropriate?[16] Cargill only engaged in “ordinary business conduct” domestically, so the case was dismissed, since the complaint sought an “impermissible extraterritorial application of the ATS.”[17] However, the plaintiffs made a timely appeal.[18]

On October 23, 2018, the dismissal was reversed and remanded, allowing the plaintiffs to amend the complaint, in order to include the specificity that recent case law demands.[19] Since ATS would be properly applied to the case at hand, the Court held that all financial decisions are made for Cargill in headquarters, which is located in the United States.[20] Furthermore, the personal spending money that Cargill allocated to the farmers was beyond their ordinary business conduct.[21] Thus, the complaint did not seek an impermissible extraterritorial application of the ATS, but a domestic one.[22]

[1] Doe v. Nestle, No. 17-55435, 2018 U.S. App. Lexis 29846, at *4-6 (9^th Cir. Oct. 23, 2018).

[2] Id.

[3] Id.

[4] Nestlé, Cargill, Archer Daniels Midland lawsuit (re Côte d’Ivoire), Business & Human Rights Resource Centre, https://www.business-humanrights.org/en/nestl%C3%A9-cargill-archer-daniels-midland-lawsuit-re-c%C3%B4te-divoire (last visited Nov. 20, 2018).

[5] Id.

[6] Nestle, 2018 U.S. App. Lexis 29846 at *5-6.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at *6.

[14] The Alien Tort Statute, 28 U.S.C.S. § 1350 (2014).

[15] Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108, 115 (2013). The corporation, in what would be a violation of the law of nations, allegedly aided and abetted Nigerian military and police forces in their attacks on Nigerian citizens who had been protesting the environmental effects of the corporations’ practices. Id. The Supreme Court determined that United States jurisdiction over the Nigerian residents’ case was barred under the ATS because there is an innate presumption against extraterritoriality, and there was nothing in the statute that rebutted that presumption. Id.

[16] Doe v. Nestle, 2018 U.S. App. Lexis 29846 at *11; see also RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090, 2101 (2016).

[17] Id. at *6-7.

[18] Id.

[19] Id.at *7-8, 14-16 (noting that Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) requires specificity of a pleading when alleging aiding and abetting under the ATS).

[20] Id. at *12-4.

[21] Id.

[22] Id.

The Rationale for Expanding Hours of Service Regulations on First Responders

By: Joseph Farneti

The Hours of Service (HOS) regulation has focused on the commercial trucking and commercial airline industries for many years.[1] This is because cracking down on the number of consecutive hours that commercial drivers and pilots work reduces worker fatigue.[2] An excessive amount of hours worked increases worker fatigue, thus increasing the probability that an accident will occur on the job.[3] Due to the nature of the commercial trucking and commercial airline industries, accidents could be catastrophic.[4] First responders, such as police officers, firefighters, and emergency medical service personnel, do not operate large pieces of equipment that could lead to mass destruction with a split-second lack of concentration.[5] However, there is a possibility that a mistake by a first responder could have just as serious of consequences.[6]

The Federal Motor Carrier Safety Administration (FMCSA) imposes the HOS regulations on property-carrying commercial drivers.[7] Property-carrying commercial drivers are limited to an eleven hour shift after ten consecutive hours off duty.[8] They are also subject to a sixty hour and seventy hour limit.[9] These limits do not allow them to drive after working sixty hours in seven consecutive days or seventy hours in eight consecutive days.[10] Additionally, they are federally required to take ten hour breaks following every fourteen consecutive hours on duty.[11]

Since the 1940’s regulations have limited commercial pilot flight and rest time.[12] Unlike the FMCSA regulations on commercial truck drivers, the rules for domestic flights do not explicitly address the amount of time a pilot can be on duty.[13] Only flight time limitations and required rest periods are addressed.[14] Federal Aviation Administration (FAA) regulations limit domestic pilots to eight hours of flight time during a twenty four hour period.[15] But, this limit may be extended if the pilot receives additional rest time after his last flight.[16] Domestic flight regulations differ from international flight rules because:

[i]nternational flights can involve more than the standard two-pilot crew and are more complex due to the scope of the operations. For international flights that require more than twelve hours of flight time, air carriers must establish rest periods and provide adequate sleeping facilities outside of the cockpit for in-flight rest.[17]

First responders face similar possibilities of catastrophic accidents occurring due to worker fatigue.[18] A recent study was conducted on police officers who worked a ten hour shift and those who worked a thirteen hour shift.[19] The study found that officers who worked thirteen hour shifts had significantly more complaints reported against them.[20] Furthermore, A recent audit of a sheriff’s office showed that officers who work one additional hour of overtime per week were 2.7 percent more likely to be in a use-of-force incident the following week.[21] In turn, this increases their chance of an ethics violation by 3.1 percent.[22] Limitations should be implemented on the consecutive HOS of first responders similar to the limitations imposed by the FMCSA and the FAA.

[1] Fed. Motor Carrier Safety Admin., Summary of Hours of Service Regulations (last visited Nov. 20, 2018), https://www.fmcsa.dot.gov/regulations/hours-service/summary-hours-service-regulations; Fed. Aviation Admin., Fact Sheet—Pilot Flight Time, Rest, and Fatigue (last visited Nov. 20, 2018),  https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=6762.

[2] Fed. Motor Carrier Safety Admin., Regulatory Impact and Small Business Analysis (last visited Oct. 21, 2018), https://web.archive.org/web/20080126005807/http://www.fmcsa.dot.gov/rules-regulations/topics/hos/regulatory-impact-analysis.htm.

[3] Id.

[4] Associated Press, UPS crash: Fatigue, pilot error blamed in deadly accident, Fox News (last updated Jan. 8, 2015),  https://www.foxnews.com/us/ups-crash-fatigue-pilot-error-blamed-in-deadly-accident.

[5] Doug Wyllie, How lack of sleep may cause deadly police errors (Aug. 9, 2014), https://www.policeone.com/Officer-Safety/articles/7444605-How-lack-of-sleep-may-cause-deadly-police-errors/.

[6] Id.

[7] Fed. Motor Carrier Safety Admin., Summary of Hours of Service Regulations, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Alan Adler, Truckers Could Save Hours-of-Service Driving Time With Flexible Rest Breaks (Aug. 30, 2018), https://www.trucks.com/2018/08/30/truckers-hours-service-flexible-rest-breaks/.

[12] Fed. Aviation Admin., Fact Sheet—Pilot Flight Time, Rest, and Fatigue, supra note 1.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Wyllie, supra note 5.

[19] Mike Maciag, The Alarming Consequences of Police Working Overtime, Governing (Oct. 2017), http://www.governing.com/topics/public-justice-safety/gov-police-officers-overworked-cops.html.

[20] Id.

[21] Id.

[22] Id.

Pregnancy Discrimination of Female Warehouse Workers: A Male’s Point of View

By: Ryan Lonergan

In the 2017 fiscal year, the Equal Employment Opportunity Commission (EEOC) received 3,174 pregnancy discrimination claims.[1] Although lower than the 32,309 allegations of race discrimination and 26,934 claims of sex discrimination, they are comparable to the 3,825 claims of religious discrimination and 3,102 allegations of color discrimination.[2] The EEOC has worked endlessly helping women warehouse workers with pregnancy discrimination.[3] Warehouses are amongst the fastest growing workplaces in the country, employing more than a million Americans.[4] Retailers and large corporations, like Amazon, demand high speed at low costs.[5] Pregnancy discrimination is at the forefront of women’s obstacles working manual labor.[6] Some employers deny expecting mothers’ promotions or pay raises; other employers fire them .[7] Women working physically demanding jobs at warehouses are subject to greater risks, such as miscarriages.[8]

It is safe for pregnant women to work, but women who lift extensively at work have “a slight to modest increased risk of miscarriage.”[9] According to medical research, a link exists between physically demanding work and fetal death.[10] Since 2012 lawmakers have introduced bills in every congressional session that would give pregnant women the same or similar protections that disabled Americans receive from the Americans With Disabilities Act (ADA).[11] The ADA requires employers to reasonably accommodate those whose fit the ADA’s criteria.[12] Unfortunately, to date only one federal law exists that aims to protect pregnant women, which is the Pregnant Discrimination Act (PDA).[13] The PDA states that a company must accommodate pregnant workers’ requests if they already do so for other employees with similar abilities or inabilities to work.[14] So, the PDA allows companies that do not give light work requests to employees in similar positions, have no obligation to do so for pregnant women.[15]

The PDA is around forty years old, yet has not been updated.[16] Unlike the ADA, the PDA lacks a reasonable accommodation requirement specific to conditions related to pregnancy.[17] A narrow reading of the ADA allows pregnant women with pregnancy related medical complications or impairments to reap the protections of the ADA, but they must be treated the same as people with similar impairments.[18] Not all pregnant women experience medical complications, thus pregnant women without medical complications are not entitled to this.[19]

In 2015, Peggy Young worked for United Parcel Service (UPS) and sued UPS in federal court.[20] Young alleged that UPS subjected Young to pregnancy discrimination in violation of the ADA and the PDA by refusing to accommodate Young’s pregnancy-related lifting restriction.[21] The Supreme Court did not expand the protection of pregnant workers to those in the ADA, since that is for the legislation to handle.[22] Additionally, the Court called the EEOC’s guidelines they submitted to the public for pregnant workers into question.[23]

Men cannot relate to the risk’s pregnant workers experience. Hence, men, can objectively view the issues with the PDA. As a man, it is clear to me that the PDA is in dire need for an update. Lives and health should not be sacrificed for more efficient workers. Activists should advocate for accommodations of pregnant women, mirroring the ADA, providing pregnant workers with reasonable accommodations without undue detriment to companies.

[1] Pregnancy Discrimination Charges FY 2010 – FY 2017, EEOC, https://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy_new.cfm (last visited Oct. 31, 2018).

[2] EEOC Releases Fiscal Year 2017 Enforcement and Litigation Data, EEOC (Jan. 25, 2018), https://www.eeoc.gov/eeoc/newsroom/release/1-25-18.cfm.

[3] Jessica Silver-Greenberg & Natalie Kitroeff, Miscarrying at Work: The Physical Toll of Pregnancy Discrimination, NY Times (Oct. 21, 2018), https://www.nytimes.com/interactive/2018/10/21/business/pregnancy-discrimination-miscarriages.html.

[4] Id.

[5] Id.

[6] Esther Wang, For Some Workers, Pregnancy Discrimination Can Lead to Miscarriages, Jezebel (Oct. 22, 2018), https://jezebel.com/for-some-workers-pregnancy-discrimination-can-lead-to-1829906271.

[7] Claire Zillman, Yes, pregnancy discrimination at work is still a huge problem, Fortune (July 15, 2014), http://fortune.com/2014/07/15/pregnancy-discrimination/.

[8] Pregnancy Discrimination Charges FY 2010 – FY 2017, EEOC, supra note 1.

[9] Am. College of Obstetricians & Gynecologists, Employment Considerations During Pregnancy and the Postpartum Period 119 (2018).

[10] Id.

[11] Silver-Greenberg & Kitroeff, supra note 3.

[12] Americans with Disabilities Act, 42 U.S.C. § 12101 (2018).

[13] Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (2018).

[14] Id.

[15] Joanna L. Grossman, Pregnancy, Work, and the Promise of Equal Citizenship, 98 Geo. L.J. 567, 570 (2010).

[16] Reva B. Siegel, Pregnancy as a Normal Condition of Employment: Comparative and Role-Based Accounts of Discrimination Cutler Lecture, 59 Wm. & Mary L. Rev. 969, 973 (2018).

[17] ADA, supra note 12.

[18] Annalyn Kurtz, 8 rights of pregnant women at work, CNN: Business (July 28, 2014), https://money.cnn.com/2014/07/25/news/economy/rights-pregnant-workers/index.html.

[19] Id.

[20] Adam Liptak, UPS Worker’s Pregnancy Discrimination Suit Reinstated by Supreme Court, NY Times (Mar. 25, 2015), https://www.nytimes.com/2015/03/26/us/ups-workers-pregnancy-discrimination-suit-reinstated-by-supreme-court.html.

[21] Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1341 (2015).

[22] Id.

[23] Id.

The Unintended Consequences of Ban the Box

By: Cara Pascarella

The Ban the Box movement calls for legislation to “remove the check box or question from employment applications that ask if the applicant has ever been convicted of a crime.”[1]When activists created Ban the Box legislation, they had two main objectives.[2]First, they believed if an applicant did not have to reveal their prior convictions, employers would be more likely to evaluate individuals based solely on their skills rather than making stereotypical judgements.[3]Second, they hoped to encourage individuals with criminal records to apply for jobs rather than deter ex-offenders from applying.[4]Both objectives further the legislatures hope that ex-offenders would have a greater chance of obtaining employment.[5]In other words, they hoped negative treatment and discrimination of ex-offenders by employers would decrease.[6]

However, legislatures did not account for the subconscious thoughts of employers.[7]Studies show that when individuals lack the necessary knowledge to make decisions, their subconscious kicks in.[8]Individuals may discriminate without even realizing it because they are subconsciously relying on cultural and emotional beliefs.[9]This plays a role in Ban the Box, since employers are not privy to whether applicants have prior criminal records, so they turn to racial generalizations about applicants.[10]A specific study done on areas that implemented Ban the Box found because employers were given limited information, they relied on “other implicit shortcuts such as the names of applicants, to predict criminality when making hiring decisions.”[11]Ban the Box eliminates employers certainty whether applicants have criminal records, but unfortunately does not ensure employers are looking at applications with an open mind.[12]

Stereotypes are especially problematic for African American non-offenders because employers sometimes apply negative generalizations to their applications.[13]In 2016, a study conducted amongst private employers in the New Jersey and New York City area assessed the effects Ban the Box law had on employment rates for white and African American applicants.[14]The purpose of this study was to determine the rate at which applicants received a callback interview.[15]Findings revealed that before and after the implementation of Ban the Box, the number of call backs for white applicants remained relatively similar.[16]Whereas, there was a dramatic change in the likelihood African American applicants received a call back.[17]Prior to Ban the Box, “white applications were only 7% more likely than [African American] applicants to receive a callback;” but after Ban the Box, white applicants were 43% more likely to get a callback than African American applicants.[18]Legislatures did not take into account the subconscious thoughts of employers.[19]Although Ban the Box seeks to help ex-offenders gain employment opportunities, the legislation indirectly harms those without prior criminal convictions.[20]Thus, before implementing additional Ban the Box legislation, legislatures should ensure the positive effects for ex-offenders outweigh the negative effects on African American non-offenders.

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

[2]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).

[3]Id.

[4]Id.

[5]Nina Kucharczyk, Thinking Outside the Box: Reforming Employment Discrimination Doctrine to Combat the Negative Consequences of Ban-the-Box Legislation, 85 FordhamL.Rev. 2803, 2808 (2017).

[6]Elizabeth Westrope, Employment Discrimination on the Basis of Criminal History: Why an Anti-Discrimination Statute is a Necessary Remedy, 108 J. Crim. L. & Criminology367, 386 (2018).

[7]Kucharczyk, supranote 5.

[8]Id. at 2814.

[9]Id.

[10]Id. at 2815.

[11]Id. at 2816.

[12]Id. at 2814.

[13]Jennifer L. Doleac, Empirical evidence on the effects of Ban the Box policies; Testimony before the U.S. House Comm. on Oversight and Gov’t Reform, Univ. of Va. 1, 7-8 (2017).

[14]Id.

[15]Id.

[16]Id.

[17]Id.

[18]Kucharczyk, supranote 5.

[19]Doleac, supra note 13.

[20]Id.

Human Trafficking Within Football’s Transfer System

By: Alex Toto

The history of the soccer, known in other countries as football, transfer system is a turbulent one.[1]Under this system teams bought and sold the contracts of players who had little to no say in the process.[2] At the end of each season every team had to submit a retention list indicating players they were keeping for the upcoming year and those available for transfer to other clubs.[3]Players had no say in this and even if placed on the transfer list there was no guarantee because of a transfer fee, which a new club would have to pay to acquire the listed player.[4]The issues with the system were apparent from the start, it was a clear violation of the players freedom of movement and contract.[5]However it was perceived to be necessary in order for the sport to function properly.[6]The disputes between players and clubs over the system came to a head in the infamous Bosman Ruling of 1995.[7]

The Bosman Ruling is a landmark judgment made by the European Court of Justice (“ECJ”) in which players were awarded the right to change teams at the end of a contract without their current club demanding a transfer fee.[8]The case involved Jean-Marc Bosman, a Belgian player, against his current club.[9]Bosman had come to the end of his contract with his league and wished to transfer to another professional team in France.[10]However, his league demanded a transfer fee that the French club refused to pay.[11]This resulted in a reduction in Bosman’s pay, as he was no longer under contract and not being permitted to find new employment.[12]The court found this practice to be a restriction of trade and granted footballers the right to a “free transfer” to another club at the end of a contract.[13]The ECJ’s ruling led to the creation of new transfer regulations that are largely unchanged today.[14]

Following the Bosman Ruling football transfers have been governed by the Federation Internationale de Football Association (“FIFA”) Regulations on the Status and Transfer of Players.[15]These regulations have been successful in increasing the freedom of movement by professional footballers in Europe.[16]However, there were unforeseen negative consequences with other aspects of the transfer regulations.[17]These regulations included a requirement that clubs have a certain number of players on their roster for homegrown players in an effort to combat the influx of foreign born players that followed Bosman.[18]A loop hole in this system is if teams sign a youth international player and train them at their youth academy they can qualify as a homegrown player.[19]This resulted in an increased demand for skilled youth international players.[20]Consequently, resulting in a sharp increase in the number of unregistered training academies and agents taking advantage of minors playing football.[21]These fake agents promise youth players, particularly in Africa, tryouts with major clubs in Europe, take payment, and transport the players to Europe.[22]The players who do not make a professional team are often abandoned by their fake agent in Europe with no passport, money or working papers.[23]

In 2009, FIFA revised the Regulations for the Status and Transfer of Players (“RSTP”), in an attempt to stop the child trafficking in football.[24]This placed a larger emphasis on clubs to track and register the youth players they interact with.[25]The new regulations were restricted in their effectiveness because the major issues at play fell outside the jurisdiction of FIFA and must be policed by European institutions and European Labor and Immigration Law.[26]

The most immediate and effective measures FIFA could take would eliminating the homegrown rules, and implementing a program or campaign to raise awareness of fake agents and trafficking in at risk areas, such as Africa.[27]  Eliminating this rule would remove the demand clubs place on young foreign players in order to fulfill their homegrown quota under the FIFA regulations.[28]In theory, this would reduce the profit available to fake agents and deter them from pursuing youth athletes in the future.[29]Raising awareness would also decrease the ability of fake agents to deceive the largely uneducated African youth players and their families.[30]

[1]John Simkin, History of the Football Transfer System, Spartacus Educational(last updated Aug. 2014), https://spartacus-educational.com/Ftransfer.htm.

[2]Id.

[3]Peter N. Katz, Comment; A History of Free Agency in the United States and Great Britain: Who’s Leading the Charge?, 15Comp. Lab. L. J.371, 402 (1994).

[4]Id.

[5]Id.

[6]Steven Tischler, Footballers and Businessmen: The Origins of Professional Soccer in England35 (1981).

[7]Anthony Teasdale & Timothy Bainbridge, The Penguin Companion to European Union, Bosman Case(Oct. 10, 2012), https://penguincompaniontoeu.com/additional_entries/bosman-case/.

[8]Id.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]FIFA, Regulations for the Status and Transfer of Players 20(2001).

[16]Teasedale & Bainbridge, supranote 7.

[17]Christina Lembo, FIFA Transfer Regulations and UEFA Player Eligibility Rules: Major Changes in European Football and the Negative Effect on Minors, 25 Emory Int’l L. Rev.539, 577 (2011).

[18]Id.

[19]Id.

[20]Matthew Hall, Argument: The Scramble for Africa’s Athletes, Foreign Policy(Apr. 20, 2018, 11:13AM), https://foreignpolicy.com/2018/04/20/the-scramble-for-africas-athletes-trafficking-soccer-football-messi-real-madrid-barcelona/.

[21]David Goldblatt, The Ball is Round: A Global History of Soccer715 (2008).

[22]Id.

[23]Id.

[24]Lembo, supranote 17 at 575.

[25]FIFA, supranote 15.

[26]Lembo,supranote 17 at 578.

[27]Id.at 580.

[28]Id.at 584.

[29]Id.

[30]Id.

“Voluntary Resignation” After FMLA Leave

By: Ryan Donahue

Attorneys practicing labor and employment law know the Family Medical Leave Act (FMLA) grants employees suffering from serious health conditions the right to twelve weeks unpaid leave during any twelve month period.[1] However, it is less known what rights employees have after the twelve week period ends.[2] Robert Thompson, an employee of Gold Medal Bakery, sheds some light on what those rights consist of.[3]

In February of 2018, Thompson filed a complaint with the Bristol County Superior Court in Massachusetts, which alleged that Gold Medal Bakery wrongfully terminated him.[4] According to Thompson he was on approved FMLA for an injured knee that was supposed to end on August 9, 2018.[5] Thompson communicated to Gold Medal Bakery that he could not return to work immediately after his twelve week leave ended because his doctor appointment was on August 17.[6] Nonetheless, Gold Medal Bakery terminated Thompson due to their voluntary resignation policy where employees voluntarily resign if they do not return to work after their twelve week leave.[7] Thompson’s complaint claims Gold Medal Bakery’s policy violates the FMLA.[8]

Gold Medal Bakery’s FMLA policy states,

“[a]bsent unusual circumstances, an employee on an FMLA leave is expected to return at the end of the granted period of time, but no more than [twelve] weeks. An employee failing to return to work on the scheduled return date after an FMLA leave will be considered to have voluntarily resigned.”[9]

Thompson’s argument is that using the language “voluntarily resigned” makes Gold Medal Bakery’s policy non-compliant with the FMLA.[10] Gold Medal Bakery’s counter argument is that this policy is complicit with the FMLA, providing case law and statutes to support their claim.[11]

In a memorandum in support of its motion for judgment filed on October 4 Gold Medal Bakery cites cases supporting the position that their policy conforms with the FMLA.[12] Within their memorandum they assert that employers are not required to reinstate or hold positions open for employees beyond the required twelve week leave period.[13] Furthermore, employees who fails to return to work after the required twelve weeks “may be subject to termination.”[14] Gold Medal Bakery claims their policy meets the FMLA requirements by offering twelve weeks of guaranteed leave, only placing restrictions on employees returning after their guaranteed twelve weeks ends.[15]

Based on the case law presented it appears that Thompson’s complaint will be dismissed.[16] Gold Medal Bakery’s policy seems to conform with the FMLA’s requirements by offering their employees twelve weeks of leave, without threatening termination until after that guaranteed twelve week period ends.[17] In my opinion, Thompson’s case is worth following since a judgment in his favor could cause significant changes to how employers handle employees FMLA leave.

[1] 29 U.S.C. §2612(a)(1) (2018).

[2] Aaron Leibowitz, Gold Medal Bakery Defends Post-Surgery Firing, Law 360 (Oct. 4, 2018, 5:19 PM), https://www.law360.com/employment/articles/1089561/gold-medal-bakery-defends-post-surgery-firing.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

The Fighters Fight for Employment Rights

By: Alexandra Raso

The Ultimate Fighting Championship (UFC) is filled with the biggest and newest names in Mixed Martial Arts (MMA).[1]  At each event new fighters attempt to make a name for themselves, whereas past fighters defend their titles or fight to wear the belt around their waist.[2]  As the most prominent name in the MMA world, reaching the UFC is the goal for any aspiring MMA fighter.[3]  Unfortunately, those fighters who reach this long-awaited goal are confronted with a lack of employee power.[4]

UFC fighters are suing Zuffa LLC, the UFC’s parent company, in a class action lawsuit claiming Zuffa used its market dominance to depress wages and reduce the fighter’s ability to compete in other promotions.[5]  The fighters argue the UFC is the only player in the MMA market, allowing them to use their position to exert control over the fighter’s wages.[6]  Despite how popular MMA has become, the Elite MMA market has become less competitive.[7]  Historically, “whenever another MMA firm creates a distinguishable or competitive product, the UFC acquires it and thereby reduces labor market competition.”[8]

During the class certification hearing the fighters contended the UFC also overutilizes long-term exclusive contracts with fighters and coerces fighters to re-sign.[9]  They argue the UFC prevents them from becoming free agents by giving them poor placement on fight cards and denying them a chance at a title unless they were locked into a long term contract.[10]  According to the fighters, these tactics make it incredibly difficult for them to negotiate their contracts, locking them into long term unfavorable deals.[11]  Currently, the fighters are opposing a summary judgment motion, in hopes to bring the case to trial.[12]

Zuffa and the UFC face another employment action lawsuit.[13]  Leslie Smith, a former UFC fighter, filed a complaint with the National Labor Relations Board (NLRB) alleging her contract was terminated due to her involvement in Project Spearhead.[14]  Project Spearhead is the most recent attempt to create a union for UFC fighters.[15]  Project Spearhead believes UFC fighters need a union because it would grant them employment protections, such as worker’s compensation, unemployment, health insurance, bargaining power, and adequate pay.[16]

Smith’s opponent did not make weight for their scheduled bout, so Smith was paid her fight money and prize money, but the fight was not rescheduled.[17]  Despite being ranked in the top ten of her division, the UFC did not renew her contract.  Smith claims this is because of her unionization efforts.[18]  The biggest hurdle UFC fighters face in their attempts to unionize is being classified as independent contractors by the UFC.  Project Spearhead is collecting authorization cards in order to petition the NLRB to reclassify UFC fighters.[19]  Unfortunately, Smith’s complaint against the UFC was dismissed because it lacked merit, but Smith is appealing her case.[20]

[1] UFC Weight Divisions & MMA Rankings, https://www.ladbrokes.com.au/info/ufc/weight-divisions/ (last updated Aug. 8, 2018).

[2] Id.

[3] Id.

[4] Infra notes 5–20  and accompanying text.

[5] Rick Archer, Fighters Say They Can Prove UFC Depressed Their Wages, Law360 (Sep. 24, 2018, 9:29 PM), https://www.law360.com/articles/1085656/fighters-say-they-can-prove-ufc-depressed-their-wages.

[6] Id.

[7] Liz Mullen, UFC Fighters Make Union Push, Sports Business Journal (Mar. 12, 2018), https://www.sportsbusinessdaily.com/Journal/Issues/2018/03/12/Labor-and-Agents/MMA-union.aspx.

[8] Id.

[9] Paul Gift, Antitrust Suit: Fighters File For Class Certification, UFC Wants ‘Junk Science’ Excluded, Forbes (Feb. 17, 2018, 8:44 AM), https://www.forbes.com/sites/paulgift/2018/02/17/ufc-antitrust-lawsuit-class-certification-junk-science-excluded-mma-news/#7cca6d9d2c73.

[10] Paul Gift, UFC Lawsuit: Plaintiffs Oppose Summary Judgment, Make Final Pitch For Trial, Forbes (Sep. 24, 2018, 8:15 AM), https://www.forbes.com/sites/paulgift/2018/09/24/ufc-antitrust-lawsuit-plaintiffs-oppose-summary-judgment-pitch-trial-mma-news/#12dbab21ba71.

[11] Id.  

[12] Id.

[13] Alexander K. Lee, Leslie Smith to file appeal after dismissal of NLRB complaint, MMA Fighting (Oct. 4, 2018, 12:00 PM), https://www.mmafighting.com/2018/10/4/17934950/leslie-smith-to-file-appeal-after-dismissal-of-nlrb-complaint.

[14] Id.

[15] Mullen, supra note 7.

[16] Why Does Project Spearhead Exist, http://projectspearhead.com/ (last visited Oct. 22, 2018).

[17] Ryan Boysen, MMA Fighter Hits UFC Parent With NLRB Claim, Law360 (May 3, 2018, 10:51 PM), https://www.law360.com/articles/1039997/mma-fighter-hits-ufc-parent-with-nlrb-claim.

[18] Id.

[19] Mullen, supra note 7.

[20] Lee, supra note 13.

#MeToo Movement Launches National Conversation on Sexual Misconduct in the Workplace

By: Melissa Pascualini

Only one year after the #MeToo movement began, employers and lawmakers are faced with the reality that individuals will no longer stand idly by while instances of gender bias and harassment are swept under the rug.[1]  The effects of the allegations against movie mogul, Harvey Weinstein, included claims that Weinstein used his position of power to pressure women into sex and paid off sexual harassment accusers for decades.[2]

Soon after these allegations were brought forward, a flow of corroborated complaints coalesced into a movement called #MeToo, which encouraged victims of sexual misconduct and harassment to share their stories.[3] The astonishing volume of accusations served as a wake-up call to employers who knew that instances of sexual misconduct or harassment occur, but assumed they could never occur in their own workplace.[4]  Victims of sexual misconduct in the workplace often keep quiet about incidents out of fear that their allegations would not amount to anything other than termination.[5] The #MeToo movement has led to people in higher positions being held accountable for their actions, which has ultimately shrunk the concerns preventing victims from coming forward.[6]

The #MeToo movement has created a very abrupt change in social norms.[7] The Time’s Up Legal Defense Fund reported that more than 3,500 people across the fifty states had reached out for legal help regarding sexual harassment at work.[8] The National Sexual Assault Hotline has seen a thirty percent increase in calls since the beginning of the #MeToo movement.[9] In fact, the day after Justice Brett Kavanagh’s hearings before the Senate Judiciary Committee regarding Christine Blasey Ford’s accusations, was the busiest day in the hotline’s twenty four year history.[10]

Acting Equal Employment Opportunity Commission (EEOC) chair, Victoria Lipnic, stated that sexual harassment has long been a problem and that the allegations against Weinstein only “uncovered what has been there all along.”[11] The EEOC’s statistics regarding workplace sexual harassment showed that forty one sexual harassment lawsuits were filed in the 2018 fiscal year, beginning after the Weinstein scandal broke, which resulted in a fifty percent increase from the prior fiscal year.[12] The agency recovered about $70 million for sexual assault victims in the 2018 fiscal year compared to $47 million the prior year.[13] The number of charges filed by alleged victims of workplace sexual harassment increased by twelve percent.[14] This is the first time this decade that the number of sexual harassment charges received by the EEOC has gone up so significantly from the fiscal year to the next.[15]

The EEOC has taken many measures the past twelve months in order to fight all types of workplace harassment, including the implementation of training seminars on the “development of respectful workplaces,” the creation of “harassment prevention teams,” and the holding of more than 1,000 outreach events.[16] Ms. Lipnic expressed pride in the work of the EEOC, making it clear that “workplace harassment is not only unlawful, it is simply not acceptable.”[17]

The #MeToo movement has drastically altered the landscape around how sexual misconduct is perceived and has empowered women to come forward creating long-lasting effects on workplace sexual harassment.[18]

[1] #MeToo After Weinstein: The Legal Fallout & What’s To Come, Law360 (Oct. 5, 2018, 10:01 PM), https://www.law360.com/articles/1090065/-metoo-after-weinstein-the-legal-fallout-what-s-to-come.

[2] Maya Salam, One Year After #MeToo, Examining a Collective Awakening, N.Y. Times (Oct. 5, 2018), https://www.nytimes.com/2018/10/05/us/me-too-movement-women.html.

[3] Braden Campbell, #MeToo Changed Workplaces, But That’s Just A Start, Law360 (Oct. 5, 2018, 6:29 PM), https://www.law360.com/employment/articles/1089425/-metoo-changed-workplaces-but-that-s-just-a-start.

[4] Id.

[5] Id.

[6] Id.

[7] Salam, supra note 2.

[8] Id.

[9] Id.

[10] Id.

[11] Vin Gurrieri, #MeToo’s ‘Post Harvey’ Energy Not Going Away: EEOC Chair, Law360 (Oct. 5, 2018, 8:46 PM), https://www.law360.com/articles/1089908/-metoo-s-post-harvey-energy-not-going-away-eeoc-chair.

[12] Vin Gurrieri, Sex Harassment Claims Jumped As #MeToo Took Off: EEOC, Law360 (Oct. 4, 2018, 6:27 PM), https://www.law360.com/articles/1089413/sex-harassment-claims-jumped-as-metoo-took-off-eeoc-.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Salam, supra note 2.

A California Court Could Soon Hold that Employers Must Pay Their Employees for Their Time Spent Getting Ready for Work

By: Samantha Celona

A group of employees are seeking class certification before a San Francisco court for wage and hour claims against the makeup and beauty supply store Sephora USA, Inc. (Sephora).[1]  The attorneys for the 8,000 employees claim they were not compensated for tasks like applying the requisite makeup and having personal belongings checked by security to ensure  employees were not stealing products.[2]  The employees also claim Sephora did not reimburse them for makeup products they were required to wear and for hemming their uniforms.[3]

Sephora’s attorneys main argument against the certification of this class is that not all employees had this experience.[4]  Sephora claims that some employees were allowed to stay on the clock when their bags were checked and some managers added time to employees hours, accounting for time spent going through security.[5]  Using a survey Sephora calculated that three minutes was the average time it took employees to go through security and factored that into employees paychecks.[6]  Sephora also claims that some managers hemmed employees uniforms for free.[7]

Additionally, Sephora’s attorneys use the de minimus defense, arguing the time spent at security checks “were so fleeting that they could survive the California Supreme Court’s Troester v. Starbucks decision.”[8] In Troester, the court held employers could not routinely require employees perform activities off the clock.[9]  This ruling seems to be in favor of employees.  But, the court left open whether this could be extended to required irregular or brief activities, which employers cannot reasonably compensate employees for.[10]  Sephora’s attorneys believe the latter will apply to their case if the class is certified and advances.[11]  It seems uncertain whether this case will survive the Troester ruling because the facts are quite similar.

In my opinion, if the Sephora employee class is certified and the case is decided in favor of the employees, significant changes in how businesses like Sephora function are possible.  Companies requiring employees look a certain way would have to keep records of the amount of time it takes employees to do so.  This could pose issues for both employees and employers.  Most employees get ready for work in the comfort of their own home.  If employers are required to keep track of employee time spent getting ready for work could they require employees to do so at work?  If so, employers could have to make costly renovations to accommodate employees getting ready at work.  Moreover, employers would have to use paid supervisors to ensure employees are efficiently using their time.  While too many jobs require employees to complete takes off the clock and this behavior of employers should cease, if a court holds in favor of the Sephora employees a dangerous and costly precedent could be set.

[1] Cara Bayles, Calif. Sephora Workers Seek Cert. On Wage-And-Hour Claims, Law360, (Sept. 26, 2018, 9:27 PM), https://www.law360.com/employment/articles/1086847/calif-sephora-workers-seek-cert-on-wage-and-hour-claims.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Troester v. Starbucks, 421 P.3d 1114, 1125 (Cal. 2018).

[10] Id.

[11] Bayles, supra note 1.