The Power of the Commissioner

By: Samantha Barbere

In 1956, players of the National Football League (“NFL”) created the National Players Association (“NFLPA”).[1] The purpose of the NFLPA was to have a group who would advocate for player needs. The NFLPA became an association which would represent player interest in negotiations with the NFL for years to come.[2] In 1970 the NFLPA was certified by the National Labor Relations Board and recognized by the league as a union.[3] Since then there has been many collective bargaining agreements between the NFL and the NFLPA.[4] However, a question that frequently crosses the minds of many football fanatics is whether or not the NFLPA protects player interest effectively. More particularly, did they allow the 2011 Collective Bargaining Agreement (“CBA”) to grant the commissioner, Rodger Goodell, too much power?[5]

The Collective Bargaining Agreement provides that “the Commissioner may serve as hearing officer in any appeal . . . at his discretion”.[6] Too many times in the agreement the NFLPA allowed the inclusion of the words “Commissioner” and “at his discretion” together. In the recent well known Deflategate scandal, the Commissioner’s excessive power is well evident. The Deflategate case emerged out of a playoff game in January 2015, in which the New England Patriot’s footballs were found to be deliberately deflated. [7] Tom Brady was subsequently suspended for four games by Goodell after he was found to be “at least generally aware” of the deflation scheme. [8] In late May, the AFL-CIO, and a group of labor law and industrial relations professors submitted amicus curiae briefs to the Second Circuit.[9] Those briefs supported the contention that Rodger Goodell inadequately served to be neutral when hearing Brady’s appeal to his suspension which Goodell himself imposed.[10] The AFL- CIO argued that Goodell’s actions were arbitrary and capricious.[11] The NFLPA, along with various other groups, argued that the Commissioner’s actions was were unjust.[12] It was the NFLPA however who signed off on granting the Commissioner this undue power. The NFLPA expressly requested Goodell recuse himself as the arbitrator to provide an impartial forum for the hearing to be heard.[13] Goodell denied the NFLPA’s request, claiming that his basis for denial was rooted in “common sense.”[14] Goodell began his justification for denial by directly citing to the words in the CBA that granted him the power to sit as hearing officer in any appeal at his discretion.[15] He moves on by dismissing the NFLPA’s arguments one by one,[16] ending his letter by explicitly denying to consider any proposals which would amend the CBA to revoke his discretion to hear any appeal.[17]

In April, the Second Circuit found that Goodell did not abuse his power under the CBA and was well within his authority when he chose to preside over the appeal.[18]  A group of labor law professors from prestigious schools such as Harvard Law School and Cornell University’s School of Industrial Labor Relations, claimed the Second Circuits decision completely altered the stature of labor arbitration.[19] The importance of maintaining a reliable alternate forum, other than court, in which people could obtain justice in situations where a dispute arises, is something that cannot be belittled. Many briefs addressed the possible distortion of labor arbitration as a result of the Second Circuits decision. [20] By holding that Goodell was authorized to sit as the arbitrator of the appeal, the panel is permitting arbitrators to ignore the requirement of neutrality.

Distinguished professors supported the AFL-CIO’s stance and in separate briefs wrote that the decision denies remedies to people who have endured even the most egregious violations of due process.[21] The ruling authorizes future arbitrators to make decisions that are reflective of their personal opinions and denies people of a fair arbitration, ultimately limiting an injured parties’ opportunity at obtaining justice. The AFL-CIO alone represents over twelve million employees, and the majority of them are subject to the CBA.[22] In Goodell’s letter denying recusal, he says his justification lies in his desire to protect the integrity of football. [23] A more plausible conclusion however is that Goodell is not willing to surrender any power that was already granted to him explicitly in the CBA. Although the NFLPA in many aspects benefited from the CBA, it seems that between the NFL and the NFLPA the league still holds the majority of the power.

[1] Zachary H. Altman, Who Won: An Actuarial Analysis of the NFL Collective Bargaining Agreement 1-4 (2013) (unpublished B.S. thesis, Schreyer Honors College) (on file with the Schreyer Honors College).

[2] Id.

[3] Associated Press, NFL Labor History, ESPN news,(Mar. 3, 2011) http://www.espn.com/nfl/news/story?page=nfl_labor_history.

[4] Id.

[5] Adam Kilgore, Did Players Hand Goodell Too Much Authority, Wash. Post (May 29, 2015), https://www.washingtonpost.com/sports/redskins/did-players-hand-roger-goodell-too-much-authority-answer-isnt-simple/2015/05/29/44fe7648-0648-11e5-a428-c984eb077d4e_story.html.

[6] See 2011 Nat’l Football League Collective Bargaining Agreement (Aug. 4, 2011) archived at http://perma.law.harvard.edu/0UcXeAWR7o8).

[7] Ian Rapoport, Details On The Investigation of Patriots Deflated Footballs, NFL News (Feb. 1, 2015, 11:19 AM), http://www.nfl.com/news/story/0ap3000000466783/article/more-details-on-the-investigation-of-patriots-deflated-footballs.

[8] Id.

[9] Zachary Zagger, AFL- CIO Tells 2^nd Circ. Goodell Wasn’t Fair in Deflategate, Law360 (June 1, 2016), http://www.law360.com/articles/802412/afl-cio-tells-2nd-circ-goodell-wasn-t-fair-in-deflategate.

[10] Id.

[11] Id.

[12] Id.

[13] John Breech, Goodell Explains Why He’s hearing Tom Brady’s Appeal, CBS Sports ( June 02, 2015, 3:34 PM), http://www.cbssports.com/nfl/eye-on-football/25203012/goodell-explains-in-really-long-letter-why-hes-hearing-tom-bradys-appeal.

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] Zagger, supra note 9.

[19] Id.

[20] See id.

[21] Id.

[22] Id.

[23] Breech, supra note 13.

Verizon’s Employee Woes, Won’t Seem to Disappear

By: Justin DiCicco

Verizon Communications Inc., has been facing issues with its employees over the course of the past few months, and when it finally seemed that this company’s employment problems have been resolved, another one has risen.  This past April, thousands of Verizon’s employees went on strike seeking improved benefits, better working conditions, and wanted Verizon to slow down its outsourcing of jobs.[1]  While Verizon’s workers were on strike, this company had to hire replacement workers to keep its services running.  This strike lasted until May, when Verizon and union leaders representing the striking workers were able to arrange a deal that satisfied all the parties involved.[2]  What seemed like a victory for Verizon was just the end to one of its problems.

On September 1, 2016, the replacement workers which Verizon hired while its employees were on strike filed a class action lawsuit against their temporary employer.[3]  These workers claimed that Verizon violated the Fair Labor Standards Act (“FLSA”) by only paying them at their normal wage rate for the entire duration of their employment.[4]  Many of the replacement workers stated that they regularly worked between twelve to thirteen hour days for seven days a week and were on average working between eighty to ninety hours a week without getting any overtime pay.[5]  The complaint further alleged that Verizon refused to pay the replacement workers for additional duties such as attending meetings, completing paperwork, and maintaining work vehicles and equipment.[6]

Verizon responded to the complaint by stating that it did not have a legal relationship with the replacement workers and that they were independent contractors from three of its subordinate entities.[7]  Under the FLSA, employers have to pay overtime only to their employees[8] and not independent contractors.  Verizon classifying the replacement workers as “independent contractors” means that they are not legally obligated to pay a minimum of time and a half overtime wages to any of the replacement workers when they worked in excess of forty hours during their work week.

This is not the first time Verizon has been accused of trying to withhold overtime wages from its employees[9].  Last June the company had a proposed wage and hour class action lawsuit filed against them in New York Federal Court from an employee who claimed that Verizon had wrongfully classified him and other logistic workers as supervisors to avoid paying overtime.[10]  This dispute is still ongoing.[11]

Courts have generally used two different tests when determining if a worker is an employee or an independent contractor.  The first is called the “economic reality test.”[12]  Under this test, the court focuses on whether the individual in question is in business for himself or is economically dependent on the business that he is working for.[13]  The second test that courts rely on is the “right to control test.”[14]  Under this test courts look to a number of factors to determine if an individual is an employee or an independent contractor, and they include: (1) the degree of control over the manner in which the work is to be performed; (2) the potential contractor’s opportunity for profit or loss, depending upon the amount of his investment, skills, and management; (3) who has made investment into materials and equipment; (4) if the service requires special skills; (5) the degree of permanence of the working relationship; and (6) if the worker’s service an integral part of the employer’s business.[15]

Wage rate and hour litigation has been rapidly increasing since 2000[16] and while this case or any other case still pending may never see the light of a courtroom, Verizon should tread carefully in the future when classifying workers to avoid further lawsuits.

[1] Noam Scheiber, Verizon Strike to End as Both Sides Claim Victories on Key Points, N.Y. Times, (May 30, 2016), http://www.nytimes.com/2016/05/31/business/verizon-reaches-tentative-deal-with-unions-to-end-strike.html?_r=0.

[2] Id.

[3] Kurt Orzeck, Verizon Replacement Workers Launch OT Pay Suit, Law360 (Sep. 2 2016, 3:45 PM), https://www.law360.com/articles/835638/verizon-replacement-workers-launch-ot-pay-suit.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] 29 U.S.C § 207 (2010).

[9] Orzeck, supra note 3.

[10]Id.

[11]Id.

[12] Daniel B. Abrahams et al, Employer’s Guide to the Fair Labor Standards Act, (2016).

[13] Id.

[14]  Id.

[15] Id.

[16] Lydia DePillis, Why wage and hour litigation is skyrocketing: With unions on the decline, workers have sorted out their employment disputes in the courts., Wash. Post, Nov 25, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/11/25/people-are-suing-more-than-ever-over-wages-and-hours/.

Employee’s Substantive Rights Trump Contract Agreements

By: Andrew Federico

The Ninth Circuit has declared that contracts that waive employee’s rights to collectively bring a legal claim against an employer are unenforceable.[1]  Such a condition waiver constitutes an unfair employer interference.

It has been the trend for companies to include such waivers to avoid hefty expenses of class action litigation.[2]  Ernst & Young, a global leader of professional services, conditioned employment on whether employees signed contracts that contained a “concerted action waiver.”[3]  The waiver required employees to (1) pursue legal claims against Ernst & Young exclusively through arbitration and (2) arbitrate only as individuals in “separate proceedings.”[4]

It is the opinion of the Ninth Circuit that “separate proceedings” provisions deny employee’s rights protected by Section 7 of the National Labor Relations Act.[5]  Section 7 allows employees to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[6]  Furthermore, Section 8 precludes employers from interfering with employee’s Section 7 rights.[7]  Thus when employees, regardless of union membership, are forced to arbitrate individually, their rights are infringed forcing the contracts to be unenforceable.[8]

The dissenting judge argued that such a decision diminishes the Federal Arbitration Act’s (hereinafter “FAA”) command to enforce arbitration agreements.[9]  The dissent argues that the FAA mandates a policy of upholding arbitration agreements, making such agreements “valid, irrevocable, and enforceable.”[10]  Yet, the court answers this objection by reinforcing that the issue lies with the distinction between “substantive” and “procedural” rights.[11]  Whether the forum for legal claims remained in arbitration or a court need not matter, it is the “separate proceedings” provision that limits an employee’s substantive right to bring a claim in concert.[12]

But what is the bigger picture within all of this? The National Labor Relations Board (hereinafter “NLRB”) has fought against companies establishing concerted action waivers, and this decision bears necessary momentum to further such policies.[13]  Three circuits, when faced with such issues regarding these waivers, ruled in favor of companies and against the assertions that employee’s Section 7 “substantive” rights are threatened.  However, in recent months, NLRB policies to counteract concerted action waivers have gained traction in federal courts.  The Seventh Circuit ruled that any contract that restricts Section 7 rights as a condition of employment is an unfair labor practice as it infers with employee’s rights, thus violating section 8.[14]  Now, the Ninth Circuit balances the circuit split and adds fuel to anticipations that appeal to the U.S. Supreme Court, to determine the enforceability of waivers, remains imminent.[15]  Until then, the balancing act between management interests and employee’s rights continues on.

[1] Morris v. Ernst & Young, LLP, No. 13-16599, 2016 WL 4433080, at *11 (9th Cir. Aug. 22, 2016).

[2] Robert Iafolla, U.S. Appeals Court Strikes Down Ernst & Young Class Action Waiver, Reuters (Aug. 22, 2016) http://www.reuters.com/article/us-usa-employment-classaction-idUSKCN10X20U.

[3] Morris, 2016 WL 4433080, at *1.

[4] Id. at 1.

[5] Id. at 11.

[6] 29 U.S.C. § 157 (2012).

[7] Id. § 158.

[8] Morris, 2016 WL 4433080, at *5.

[9] Id. at 11 (Judge Ikuta, dissenting).

[10] Id. at 12 (citing 9 U.S.C. § 2).

[11] Id. at 7.

[12] Id. at 6.

[13] See Iafolla, supra note 2.

[14] Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1155 (7th Cir. 2016).

[15] See Benjamin Kim & Christine de Bretteville, Ninth Circuit Strikes Down Class Action Waivers in Employment Arbitration Agreements, The Nat’l L. Rev. (Aug. 30, 2016), http://www.natlawreview.com/article/ninth-circuit-strikes-down-class-action-waivers-employment-arbitration-agreements.

More Than A Headache for Youth Football Professionals

By: Elida Alfaro

Pop Warner Little Scholars Inc., USA Football, and National Operating Committee on Standards for Athletic Equipment (hereinafter “NOCSAE”) have recently been named in a putative class action suit for their alleged failure to implement safety protocols to protect their youth athletes from head trauma.[1] This recent allegation follows shortly after Pop Warner’s recent settlement for a prior youth participant who committed suicide and was later diagnosed with chronic traumatic encephalopathy (“CTE”).[2]

Enrolling approximately 250,000 young athletes in their tackle football program each year, Pop Warner spans across forty-two states and is purported to sponsor programs abroad.[3] Funded by the NFL, Pop Warner recently entered into a partnership agreement with USA Football where their combined efforts have resulted in widespread implementation of the Heads Up program.[4] Boasting that this program will create “the new standard in football,” Heads Up’s goal is to ensure that all coaches are USA Football certified and have the ability to teach their young athletes safer blocking and tackling techniques.[5] Claiming to be “safer than soccer,” Pop Warner asserts that they have twelve percent fewer injuries per capita than organized soccer in the same age range.[6]
Despite Pop Warner’s alleged statistical success, parents of young athletes enrolled in the youth tackle football program claim that they have yet to see the benefits.[7] With accusations ranging from misrepresentation in safety protocol to Pop Warner’s failure to investigate coaches physical education or medical training background, these allegations attack the heart of both Pop Warner’s and USA Football’s missions.[8] NOCSAE, as the governing committee on the standards on athletic equipment, was unable to escape the suit due to parent’s dissatisfaction with their lack of youth-specific safety standards.[9]

While concussions are among the injuries causing parent’s grave concerns, it is the potential to develop CTE that has caused parents to take action.[10] CTE is a progressive degenerative disease that typically affects individuals whom have suffered repeated concussions and traumatic brain injuries.[11] In the past, this disease was thought to primarily affect boxers, but most recently has been commonly linked to football players.[12] Among many symptoms, CTE has been known to cause difficulty controlling erratic behavior, behavioral disturbances, including depression and aggression, and gradual onset of dementia. [13]

Named plaintiffs Kimberly Archie and Jo Cornell both lost their sons in 2014 from the effects of CTE, which they believe was sustained as a result of both their son’s participation in Pop Warner’s football program.[14] Cornell’s son, Tyler, was a participant in the program for five years and it was after that time that he began suffering behavioral issues and was diagnosed with depression.[15] In April 2014, Tyler took his own life and it was later confirmed he suffered from CTE.[16] As it is these parent’s belief that their sons are two among hundreds of thousands of effected young athletes, their suit seeks to represent participants, including those deceased, who took part in Pop Warner’s youth tackle football program from 1997 to the present.[17]

The kicker of this case is lawmakers’ recent inquiries into USA Football’s Heads Up program safety statistics.[18] Following a NY Times investigative review, it was concluded that USA Football’s independent study, which purported injury reduction of seventy-six percent and concussion reduction of thirty percent, was unsupported.[19]

[1]  Suevon Lee, Pop Warner, Others Hit With Youth Football Concussion Suit, Law360 (Sept. 1, 2016), http://0-www.law360.com.libweb.hofstra.edu/articles/835830/pop-warner-others-hit-with-youth-football-concussion-suit.

[2] Alan Schwarz, N.F.L.-Backed Youth Program Says It Reduced Concussions. The Data Disagrees., N.Y. Times (July 27, 2016), http://www.nytimes.com/2016/07/28/sports/football/nfl-concussions-youth-program-heads-up-football.html?_r=0.

[3] Lee, supra note 1.

[4] Heads Up Football Coaches Training, Pop Warner, http://www.popwarner.com/football.html (last visited Sept. 5, 2016).

[5] Is Your Coach Certified?, USA Football, www2.usafootball/com/coaches_registly.com (last visited Sept. 5, 2016).

[6] Heads Up Football Coaches Training, supra note 4.

[7]  See Lee, supra note 1.

[8]  See generally id.

[9]  Id.

[10]  Id.

[11] What is CTE?, Biri (Sept. 5, 2016, 11:15 AM) http://www.protectthebrain.org/Brain-Injury-Research/What-is-CTE-.aspx.

[12] Id.

[13] Id.

[14]  See Lee, supra note 1.

[15] Id.

[16] Id.

[17]  Id.

[18]  See generally id.

[19] Schwarz, supra note 2.

Wages for One, Wages for All!

By: Fatima Guillen-Walsh

It’s no secret that women are an important force in our society, and thus should be treated accordingly.  Yet, women everywhere still face discrimination in the workplace, especially when it comes to equal pay.  Finally, states are beginning to adopt legislation to help amend this very big problem.[1]  This past week, New Jersey advanced a bill from the state Assembly that would close the wage gap between men and women.[2]  It will now make its way to the House and hopefully be adopted.[3]

\The bill, proposed by the Sen. Loretta Weinberg, follows the path taken by the Lilly Ledbetter Act of 2009.[4]  It hopes to “limit[] all pay discrimination claims and also prohibit unequal pay for ‘substantially similar’ work under the Law Against Discrimination.” Additionally, it is one of the first to call for a valid justification if an employer has different compensation rates.[5]  It includes provisions that suggest various factors besides the employee’s sex that should be considered, as well as prohibit employer retaliation, and impose reporting requirements for information beyond just compensation, such as gender, race, job title, and occupational category.[6]

Fellow sponsor of the bill and Senate President Steve Sweeney (Democrat-Gloucester) considers this an important form of legislation.[7]  After the advancement, he made a statement explaining:

It is shameful that women continue to make less than men for doing the exact same      work. Equal pay will raise wages for women, helping families to get ahead – and it          will benefit the entire state by strengthening the economy . . . . We advanced this          legislation because it is the right thing to do for New Jersey residents and for the            state.[8]

Sweeney is not alone in his opinion, and is joined by Sens. Sandra Bolden Cunningham (Democrat-Hudson) and Linda Greenstein (Democrat-Middlesex).

Women in New Jersey earn an average of 80.4 cents per dollar that a male earns, only slightly above the national average of 79 cents on the dollar.  The gap continues to widen if you separately factor in African-American and Hispanic women, who will make 58.1 cent and 42.7 cents for every dollar that men make in the work force.[9]  Though the gap has narrowed since 1970 where women barely made 59 percent of what men were paid, it is still not where it should be.[10]  This is predominantly due to the movement for women in both education and participation in high power careers, as well as men’s wages slowly rising today.[11] However, recently progress has been at a standstill, and it does not seem like the pay gap will disappear without legislative guidance.[12]

This passage comes at a crucial time of year, as Equal Pay Day[13] is right around the corner.  However, what many people do not realize is that the pay gap between men and women exceeds just salary and wages, but also full compensation packages as a whole. Though much of this applies mainly to lower income women, it affects all women nationwide.[14]  Not only are these women less likely to have retirement type saving plans, but are also less likely to be offered health insurance, training opportunities, flexible work arrangements, paid vacation, leave or sick leave from their employer.[15]

Around this time last year before Equal Pay Day 2015, President Obama’s middle class agenda was said to want to “mov[e] forward on policies that ensure fair pay for all Americans and help workers find jobs that best suit their talents . . . .”[16]  The White House was hopeful that policies can help not only narrow the gap, but allow employers to “retain the strong talent, which benefits the economy as a whole.”[17]

Though there has been some federal legislation on the issue[18], we have not seen changes in federal regulation to help fix this problem, it is nice to see the states taking a stand and attempting to begin the fight for equal pay.[19]  Women are a huge part of our economy; they dominate “almost half the workforce . . . [they are] breadwinner[s] . . . receive more college and graduate degrees than men . . . [but] continue to earn considerably less than men.”[20]  It is unfair that women continue to face these discriminatory practices that our Constitution[21] should protect.

[1] Jeannie O’Sullivan, NJ Gender Parity Pay Bill Passes Both Houses, law 360, (Mar. 14, 2016, 8:59 PM), https://www.law360.com/employment/articles/770979/nj-gender-parity-pay-bill-passes-both-houses.

[2] Id.

[3] Id.

[4] Id. The Act was signed by President Obama in 2009 to help restore anti-discrimination protection for the unfair gender wage gaps, which was previously stripped away in Ledbetter case. Lilly Ledbetter Fair Pay Act, Nat’l Women’s Law Ctr. (Jan. 29, 2013), http://nwlc.org/resources/lilly-ledbetter-fair-pay-act/.

[5] O’Sullivan, supra note 1.

[6] Id.

[7] See id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Council of Economic Advisers Issues Brief, Gender Pay Gap: Recent Trends and Explanations (Apr. 2015), https://www.whitehouse.gov/sites/default/files/docs/equal_pay_issue_brief_final.pdf.

[14] See id.

[15] Id.

[16] Id.

[17] Id.

[18] See Jennifer Ludden, Despite New Law, Gender Salary Gap Persists, NPR, (last updated Apr. 19, 2010, 12:38PM), http://www.npr.org/templates/story/story.php?storyId=125998232 (explaining that “[t]he very first bill that President Obama signed into law dealt with equal pay for women, but activists say it’s done little to close the ongoing difference between what men and women earn.”).

[19] O’Sullivan, supra note 1.

[20] Pay Equity & Discrimination, inst. for women’s policy research, http://www.iwpr.org/initiatives/pay-equity-and-discrimination (last visited Mar. 18, 2016).

[21] As suggested above, many believe that the United States Constitution’s Equal Protection Clause should extend to gender discrimination and mandate equal pay among the sexes. See U.S. Const. amend. XIV, § 1.

“Too Much Estrogen” for this Chipotle: Women Vindicated Against the Odds in Gender Discrimination Suit

By: Nicholas Moneta

In the wake of a nationwide shutdown,[2] Chipotle Mexican Grill, Inc. (hereinafter, “Chipotle”) was found liable on February 8, 2016, by a jury in the United States District Court for the Southern District of Ohio.[3]  Chipotle was ordered to pay the sum of $807,000.00 to three of its former managers.[4]  All three managers claimed that they were terminated in violation of their civil rights[5] for one reason — being women.[6]  Originally, seven women brought this gender discrimination suit against Chipotle, which dates back to March 2013.[7]  All seven women were fired from their manager positions in the greater Cincinnati area.[8]

Hoegaarden or Weingarten

By: Adam Solomon

Money may not be able to buy happiness, according to the old adage, but it can sure go a long way towards paying for the basic sustenance’s, pleasures, and luxuries in life, or even helping to cover the cost of another increase in inflation.[1]  Many people fantasize about using extra money to buy a car, plan the perfect getaway for their next travel, or paying down their mortgage, but it’s hard to imagine being forced to give away your hard earned money towards something you don’t want or don’t support.  However, for many involved in union professions, this is an all too common reality, which has sparked a series of fairly recent lawsuits; e.g. Knox v. Service Employees International Union Local 1000,[2] Harris v. Quinn,[3] and Friedrichs v. California Teachers Association.[4]

Unions have a strong presence in the workforce and for standing up for workers’ rights; e.g. the right to have your union representative present during an investigatory interview that you believe may lead to or result in disciplinary action.[5]  While union dues vary depending on the profession, some people, like teachers, pay nearly one thousand dollars to a labor union.[6]  As a result, several outraged teachers have brought suit arguing that unions have become more and more political, and that their dues shouldn’t be used to fund a union’s political agenda, which now encompasses all union activity.[7]  In Friedrichs, a group of public school teachers in California have brought suit, claiming the union’s mandatory fees violate their First Amendment Right, because they disagree with the union’s positions.[8]

After granting a writ of certiorari, Friedrichs is currently before the Supreme Court, for a decision revolving around mandatory union dues.[9]  “Friedrichs gives the court an opportunity to outlaw all mandatory union dues in the public sector.  To be clear, such a ruling wouldn’t end government unions.  Employees who genuinely support a labor organization would still be free to join up and pay dues.”[10]  While it wouldn’t end unions, it would have negative financial and political implications on public unions.[11]  “Union membership itself is on the decline—down from 33.2 percent in 1956 to 11.8 percent in 2011.”[12]  Potentially eliminating the requirement of mandatory fees to unions, which a large number of people don’t necessarily want to join, will cause unions to have decreased political influence, decreased size, and a decreased bankroll to fund their agendas.  “In 2008, labor unions spent $75 million in political donations, with 92 percent of it going to Democrats.  In 2010, over 93 percent of union political support went to Democrats, even though 42 percent of union households voted Republican.”[13]  While this issue is still pending, Justice Kennedy’s comment that “[t]he union is basically making the teachers ‘compelled-riders’ on issues with which they strongly disagree,”[14] suggests that the Court may go against its 1977 precedent case, Abood v. Detroit Board of Education,[15] and set a new standard, altering a unions’ presence and relationship, with perhaps far greater repercussions than this group of California teachers or only this profession.

[1] US Inflation Flat in January, Annual Inflation Rate Jumps to 1.4%, US Inflation Calculator (Feb. 19, 2016), http://www.usinflationcalculator.com/inflation/us-inflation-flat-in-january-annual-inflation-rate-jumps-to-1-4/10001931/ (noting the increase in inflation over the past year).

[2] See Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2295 (U.S. 2012) (holding that “individuals should not be compelled to subsidize private groups or private speech”).

[3] Harris v. Quinn, 134 S. Ct. 2618, 2644 (U.S. 2014) (holding that no one may be “compelled to subsidize speech by a third party that he or she does not wish to support. The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union”).

[4] Friedrichs v. Cal. Teachers Ass’n, 2013 U.S. Dist. LEXIS 188995 (C.D. Cal. Dec. 5, 2013).

[5] NLRB v. J. Weingarten, Inc., 420 U.S. 251, 252 (U.S. 1975).

[6] Adam Liptak, Mandatory Union Fees Getting Hard Look by Supreme Court, N.Y. Times (Jan. 8, 2016), http://www.nytimes.com/2016/01/09/us/politics/union-fees-friedrichs-v-california-teachers-association.html?_r=0.

[7] See Unions at Risk? Supreme Court Justices Voice Skepticism Toward Forced Dues, FoxNews (Jan. 11, 2016), http://www.foxnews.com/politics/2016/01/11/supreme-court-to-hear-dispute-over-public-sector-union-fees.html.

[8] Id.

[9] Friedrichs v. Cal. Teachers Ass’n, 2015 U.S. LEXIS 4503 (U.S. 2015).

[10] Will Collins, Supreme Court Argument Preview: What’s at Stake in Friedrichs v. California Teachers Association, National Right to Work (Jan. 6, 2016), http://www.nrtw.org/free-tagging/forced-dues (comment by National Right to Work President, Mark Mix, published last September).

[11] See Liptak, supra note 6 (example of a high school teacher in California paying $970 in union dues).

[12] Rick Berman, Union Dues Are a Prohibitively Bad Investment, Forbes (July 31, 2012), http://www.forbes.com/sites/realspin/2012/07/31/union-dues-are-a-prohibitively-bad-investment/#28188c007e64.

[13] Id.  “Really, these unions are not speaking on my behalf.  They’re speaking on behalf of the union and the union leadership” (statement by school teacher, and plaintiff in Friedrichs, Rebecca Friedrichs).  Id.

[14] Unions at Risk? Supreme Court Justices Voice Skepticism Toward Forced Dues, FoxNews (Jan. 11, 2016), http://www.foxnews.com/politics/2016/01/11/supreme-court-to-hear-dispute-over-public-sector-union-fees.html.

[15] Abood v. Detroit Bd. of Educ., 431 U.S. 209 (U.S. 1977).

The Employment Law Game is About to Blow Up: A Look at how the Conflict in the Middle East is Affecting Employment for Middle Easterners

By: Jesse Fishman

If you don’t live under a rock you might have heard about a little conflict in the Middle East, and by little conflict, I mean the one that has been going on for a few thousand years and may or may not be a hot topic of the political debates of 2015 and 2016.[1] The candidates in those debates field questions about foreign policy and immigration policy and what they might do with Muslims if elected in the upcoming election.[2] In December of 2015, amidst the growing fear from events taking place in the United States and abroad, the Equal Opportunity Employment Commission (“EEOC”) issued two information question and answer guidance documents about employees who are perceived to be Muslim or Middle Eastern.[3]  The documents were issued to remind employers that discrimination based on nation of origin, race, or religion violated Title VII of the Civil Rights Act of 1964.[4]  The documents take you through a series of hypotheticals that include when a woman wears a hijab, when someone calls a co-worker a terrorist, and religious accommodations.[5]  Also, in the guidance documents it is noted that employers cannot make applicants or employees undergo additional security clearance checks.[6]  The documents also note that the discrimination practices also apply to people who appear to be from the Middle East or Muslim.[7] These publications were issued because of the real fear of Muslim radicalization or as President Obama refuses to call it Muslim extremism.[8]

Do Americans feel this way about this way about Middle Easterners more so than other groups because they view them as being loyal to their home countries as opposed to the United States?  Professor Angelo Ancheta thinks so, “Arab Americans [and Latinos] are other groups whose locations in the American racial landscape are defined by foreignness.”[9]  For example, in a Chicago suburb, protesters marched on a mosque chanting “U-S-A” because they believed a mosque is something un-American.[10]

The proportion of full-time employed Muslim compares very similar percentage wise to the general public.[11]  “But underemployment is more common among Muslims than in the general public; 29% of Muslims are either unemployed and looking for work or working part-time but would prefer to have full-time employment, compared with 20% of adults nationwide who are in these circumstances.”[12]  Younger Muslims, under the age of 30 have a much higher unemployment rate than older ones.[13]  Is this because employers are fearful, that when interviewing Muslim applicants they might be hiring the next San Bernadino shooter? It just might be.

[1] See Washington Post Staff, The CNN Democratic debate transcript, annotated, The Washington Post (Oct. 13, 2015) https://www.washingtonpost.com/news/the-fix/wp/2015/10/13/the-oct-13-democratic-debate-who-said-what-and-what-it-means/.

[2] See Id.

[3] Susana Knutsbon Gibbons, The National Law Review (Jan. 24, 2016) http://www.natlawreview.com/article/eeoc-cautions-employers-about-discrimination-against-employees-who-are-or-are.  Of note, one document was for employers, and the other for employees.

[4] Id.

[5] Chair Jenny R. Yang, Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern,

guidance document, EEOC, (Dec. 23, 2015), http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employers.cfm

[6] Jeffrey D. Polsky. EEOC Issues New Guidance Document on Discrimination Against Muslims, Caliornia Employment Law: Comments on Issues Facing California Employers, (Jan. 5, 2016), http://californiaemploymentlaw.foxrothschild.com/2016/01/articles/discrimination/eeoc-issues-new-guidance-on-discrimination-against-muslims/.

[7] Id.

[8] Susana Knutsbon Gibbons, The National Law Review (Jan. 24, 2016) http://www.natlawreview.com/article/eeoc-cautions-employers-about-discrimination-against-employees-who-are-or-are.

[9] Angelo Ancheta, Race, Rights, and the Asian American Experience, Rutgers University Press, 1998, 64.

[10] Ghada Quaisi Audi, Challenges Facing the Arab American Community from a Legal Perspective, (2008), http://www.asjournal.org/52-2008/challenges-facing-the-arab-american-community-from-a-legal-perspective/#sdfootnote2sym.

[11] http://www.people-press.org/2011/08/30/section-1-a-demographic-portrait-of-muslim-americans/

[12] Id.

[13] Id.

Wage Theft and New York’s Wage Theft Prevention Act

By: Eugene Lin

Wage theft is a term used to describe situations where workers do not receive legally or contractually promised wages.[1] This can include non-payment of overtime, not giving workers their last paycheck after leaving a job, not paying for all hours worked, not paying minimum wage, or not paying the worker at all.[2] Wage theft may be a violation of the Federal Labor Standards Act (“FLSA”) as well as state laws such as the Wage Theft Prevention Act.

The National Employment Law Project published a guide to combat wage theft in 2011.[3] Among other things, it specified seven principles to stop wage theft:

1. Raise the Cost to Employers for Violating the Law.
2. Make Government Agencies Effective Enforcers of the Law.
3. Better Protect Workers From Retaliation.
4. End the Exclusions in Minimum Wage and Overtime Standards.
5. Stop Independent Contractor Misclassification and Hold Subcontractors Accountable.
6. Ensure Workers Are Paid for All Hours Worked.
7. Guarantee that Workers Can Collect from Their Employers.[4]

Wage theft protections have historically been implemented in a spotty fashion: for instance in New York, such protections were first afforded to agricultural workers before other workers in New York State. The Migrant & Seasonal Agricultural Worker Protection Act was signed in 1983 and provided farm workers essential workplace rights.[5] Employee protections required employers to disclose terms and conditions of payment in employee understandable language, pay workers when due, and give workers an itemized pay stub. There was a protection against being fired for asserting rights under the statue and a private right of action the allowed the seeking of actual or statutory damages if employers violated the Act.

Other types of New York workers didn’t get similar protections until the Wage Theft Prevention Act (WTPA) in 2011. The Act addressed many of the principles from the National Employment Law Project. Employers were now required to provide employees with written pay notices.[6] These notices had to include: (1) the employee’s pay, including overtime pay; (2) the employee’s type of payment (e.g., hourly, shift, day, week, commission, etc.); (3) the regular payday; (4) the official name of the employer and any other names used for business; (5) the address and phone number of the employer’s main office or principal location; and (6) any allowances taken as part of the minimum wage (such as tips).[7] Much like the Migrant & Seasonal Agricultural Worker Protection Act, this notice has to be in English and if needed the primary language of the employee.[8]

The WTPA increases the damages recoverable by employees in civil lawsuits for employer payment violations. Specifically, unless the employer can prove a good faith belief that its underpayment was legally complaint, the WTPA provides for an increase from twenty-five percent of total underpayment to one hundred percent of total underpayment.[9] The WTPA also expanded non-retaliation provisions in the New York labor law and enhanced both enforcement by the Commissioner of Labor and criminal and civil penalties.[10]

It should be noted that the WTPA in the Southern District of New York does not apply liquidated damages retroactively.[11] In Wicaksono v. XYZ 48 Corp, the court found that “retroactive operation is not favored by [New York] courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it.”[12] Additionally the court stated “There is no indication in the Act itself, nor in the Sponsor’s Memorandum or any previous drafts of the Act, that it was intended to have retroactive effect. . . .  Therefore, NYLL’s liquidated damages provisions will be applied as they existed at the time of the defendant’s violations.”[13]

The New York WTPA was amended and arguably strengthened in early 2015.[14] These amendments include elimination of the annual wage notice requirement  – the New York State Department of Labor stating that it would no longer enforce the requirement.[15] Additionally liability for employers was strengthened: the ten members with the largest percentage ownership of a limited liability corporation (“LLC”) are joint and severally liable for debts wages and salaries of employees for service to the LLC.[16] Provisions also prohibit the formation of alternate companies specifically for the purpose of avoiding liabilities.[17]

Unfortunately, despite these legislative protections, wage theft is still widespread and costly.[18] The Economic Policy Institute (“EPI”) found that though there were no specific numbers for national wage theft in the year 2012, they were able to retroactively study the amount of money recovered by victims in that year. Overall the amount was at least 933 million dollars,[19] almost three times the amount for robberies that year.[20] According EPI data, the U.S. Department of Labor recovered $280 billion, the state departments in 44 states recovered $172 million, state attorneys general in 44 states recovered $14 million, and private attorneys recovered $433 million. In New York State, the NY Department of Labor reported $30 million was recovered and disbursed to workers who were victims of wage theft in 2014.[21] Given these numbers it remains to be seen whether these amendments will have a significant impact on combating wage theft in the years to come.

[1] Frequently Asked Questions, Wage Theft, http://www.wagetheft.org/faq/.

[2] Id.

[3] The National Employment Law Project, Winning Wage Justice: An Advocate’s Guide to State and City Policies to Stop Wage Theft. http://www.nelp.org/content/uploads/2015/03/WinningWageJustice2011.pdf.

[4] Id.

[5] 29 U.S.C. §1801.

[6] N.Y. LAB. LAW § 195(1)(a).

[7] Id.

[8] Id.

[9] N.Y. LAB. LAW §§ 196,198, 663.

[10] N.Y. LAB. LAW §215.

[11] Wicaksono v. XYZ 48 Corp., 2011 WL 2022644 (May 24, 2011, S.D.N.Y. 2011).

[12] Id. at note 2.

[13] Id.

[14] New York amends Wage Theft Prevention Act: action steps for employers, DLA Piper, https://www.dlapiper.com/en/us/insights/publications/2015/02/new-york-amends-wage-theft-prevention-act/.

[15] Notice of Pay Rate, New York State Department of labor, https://labor.ny.gov/workerprotection/laborstandards/employer/wage-theft-prevention-act.shtm (The February 1 reporting requirement was eliminated but the notification to employees at the time of hire still remains).

[16] N.Y. L.L.C. LAW §609(c).

[17] A81806C, N.Y. State Assemb. 2013-2014 Regular Sessions (N.Y. 2014) http://assembly.state.ny.us/leg/?default_fld=&bn=A08106&term=2013&Summary=Y&Actions=Y&Memo=Y&Text=Y.

[18] Brady Meixell and Ross Eisenbrey, An Epidemic of Wage Theft Is Costing Workers Hundreds of Millions of Dollars Per Year, Economic Policy Institute, (Sept. 11, 2014) http://www.epi.org/publication/epidemic-wage-theft-costing-workers-hundreds/.

[19] Id.

[20] Table 23 Offense Analysis, FBI.gov, https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/tables/23tabledatadecoverviewpdfs (292,074 robbery offenses at $1167 average per offense for a total of $340,850,358 for 2012).

[21] Wage Theft Recovery, New York State Department of Labor, http://labor.ny.gov/workerprotection/laborstandards/wage-theft-recovery.shtm.

The Real Winner of the Oscars, Spotlight on Employment Discrimination?

By: Gabriel Arevalo

The 2016 Oscars was a night full of winners and upsets, Mad Max Fury Road won several Oscars shocking people with the idea that an action movie can be held as high art.[1] Arguably the biggest winner last night was Leonardo DiCaprio who finally won his Oscar after years of struggle overcoming the discrimination against him.[2]  The 2016 Oscars was also filled with controversy this year as the hash-tag, “Oscars so white,” began to hit social media by storm.[3]  The public was furious that for a second year in a row  there was an under representation of actors of color nominated for acting awards.[4] Chris Rock, the Zebra from Madagascar, in his opening monologue admitted that Hollywood is racist, especially when it comes to casting.[5] If Mr. Rock’s racially charged and uncomfortably funny monologue at the beginning of the night is correct, then perhaps Hollywood may be guilty of more than just racism and bad casting, they could be guilty of violating Title VII of the 1963 civil rights act.

Title VII of the 1963 civil rights act makes it illegal for an employer to discriminate. Title VII states,

1. a) Employer practices, It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.[6]

If Hollywood does indeed discriminate based on race, as many suggest, they could be violating Title VII by discriminating employees (actors) based on race – but where is the evidence of such a claim?

Some would say look at some of the movies casted in the past where it was obvious that white actors where given roles over other races or ethnicities in order to find evidence of discrimination. Just this year Gods of Egypt premiered starring Gerard Butler, the movie concerns ancient Egyptian gods and figures yet curiously The Egyptian movie set in Africa was lacking in leading characters of Egyptian or African descent.[7]  Another example of possible discrimination in casting is in the popular movie 21, which was based on a true story involving an Asian MIT student who counted cards in black jack, the main actor cast was white.[8] This obviously doesn’t automatically mean discrimination but it does raise some questions, and when bringing a discrimination case this may be enough to get them in the court house door.[9] If hypothetically a case were brought against a casting agency or the movie studio, the burden of proof to show that there was no discrimination would fall on the defendants.[10]  Is there a lack of ethnically diverse actors that can perform the job? This seems highly unlikely.

Could Hollywood be looking at a rash of Title VII cases? Could the recent rise of racial attitudes and tensions lead some to look to the law in order to force more diversity in Holly

[1] Bryan Bishop, Mad Max: Fury Road wins most awards of the night with six Oscars, The Verge (Feb. 29, 2016 12:39 am) http://www.theverge.com/2016/2/29/11131218/mad-max-fury-road-most-awards-academy-awards-2016

[2] Brian Truitt, Take a Lap Leo, DicCapiro Finally Gets his Oscar, (Feb. 29, 2016 1:39 am) http://www.usatoday.com/story/life/movies/2016/02/28/leonardo-dicaprio-finally-wins-his-oscar-academy-awards/80952808/.

[3] Lisa Respers France, #OscarsSoWhite? It starts with the academy, CNN (Jan. 20 2016) http://www.cnn.com/2016/01/19/entertainment/oscars-so-white-academy-feat/

[4] Id.

[5] Brandon Griggs, Chris Rock: ‘You’re damn right Hollywood is racist’, CNN, http://www.cnn.com/2016/02/28/entertainment/chris-rock-oscars-so-white-feat/index.html?eref=rss_showbiz

[6] EEOC, Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/laws/statutes/titlevii.cfm (last visited Mar. 3, 2016).

[7] Hoai-Tran Bui, ‘Gods of Egypt’ director apologizes for ‘whitewashed’ cast, USA Today, (Nov. 30, 2015) http://www.usatoday.com/story/life/2015/11/30/gods-egypt-director-apologizes-whitewashed-cast/76565502/

[8] Amanda Scherker, Whitewashing Was One Of Hollywood’s Worst Habits. So Why Is It Still Happening?, Huffington Post (Jul. 10, 2014), http://www.huffingtonpost.com/2014/07/10/hollywood-whitewashing_n_5515919.html.

[9]John F. Beasley Jr., Proof of Pretext: A Review of Case Authority and Strategy From a Plaintiff’s Perspective, 3 http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/033.authcheckdam.pdf.

[10] Id., at 3.