Gigs that Ain’t so Groovy: Gig Economy Worker Classification Issues and Solutions

By: Domenick Pesce

The convenience of tapping an app on your iPhone to order a ride as a quick pick-up, to order lunch to the entrance of your job, or to order groceries for the week to your apartment door, has become the norm in 2018.[1]  For many consumers around the globe, the utilization of on-demand, app-based businesses and services have become increasingly popular.[2]  The so-called gig economy that fuels industries like Uber, Lyft, Grubhub and Instacart, is a large economic force motivated by swiftly advancing technology that continues to rapidly expand.[3]  In May of 2017, Intuit CEO Brad Smith said that “[t]he gig economy…is now estimated to be about 34% of the workforce and expected to be 43% by the year 2020.”[4]  Why are so many individuals attracted to the idea of gig economy jobs?  Researchers suggest a multitude of answers including the ability to be your own boss, work on your schedule, and achieve a healthier work/life balance.[5]  The unassuming consumer of the fruits of the gig economy may think nothing more of the industry other than the on-demand, affordable conveniences it provides them.  There are however, a myriad of legal issues facing employers of gig economy workers regarding their worker classification, pay, benefits, and more.[6]  The gig economy is large already and rapidly expanding, which is causing the legislative and judicial bodies to face legal challenges and calls for reform.[7]

An individual working as an Uber driver or Instacart shopper might call themselves an employee of these companies, however that term is not legally precise.[8]  When these companies are not calling the individuals that work for them drivers[9] or shoppers[10] in advertising and business communications they are sure to call their workers independent contractors in all legal terms[11] and contracts,[12] never calling them employees.  An employee and independent contractor are two separate labor classifications that are legally afforded different legal protections.[13]  Workers classified as employees are entitled to protections provided by the Wages and the Fair Labor Standards Act (“FLSA”), which includes minimum wage, overtime compensation, unemployment insurance, and workers’ compensation.[14]  Alternatively, workers deemed as independent contractors, like most gig workers, are not afforded any of these FLSA protections.[15]  For example, Uber has argued that they are a technology company the provides a service of connecting drivers and riders and not a transportation company.[16]  Uber reasons they simply pair their drivers, who drive their personal vehicles under their personal insurance, up with passengers in need of rides.[17]  In December of 2017, Europe’s top court, the European Court of Justice (“ECJ”) “rejected that argument in its landmark decision, ruling that Uber is at its heart a transportation company and should be regulated as such.”[18]  Alternatively, in April of 2018, the United States first federal ruling on the gig economy was decided and U.S. District Judge Michael Baylson “ruled that limousine drivers for Uber Technologies Inc […] are independent contractors and not the company’s employees under federal law.”[19]  The judicial rulings in the United States are vastly different than in Europe.

Unfortunately for gig workers in the United States, the judiciary must apply outdated state and federal labor and employment law to a new, rapidly expanding, technology-induced category of work.[20]  In the recent case, Lawson v. Grubhub, “the U.S. District Court for the Northern District of California succinctly noted: ‘Under California law whether an individual performing services for another is an employee or an independent contractor is an all-or-nothing proposition.’”[21]  This clearly indicates the bind a court is trapped in when deciding issues of employee classification.  The Court called upon the California “…Legislature to address the dated, bifurcated system of employment classification: ‘With the advent of the gig economy, and the creation of a low wage workforce performing low skill but highly flexible episodic jobs, the Legislature may want to address this stark dichotomy.’”[22]  It is apparent that the legislature should prevent gig economy employers from skirting around outdated labor and employment laws, as well as assist workers of a rapidly growing U.S. job sector.

The most practical solutions to resolve this gap in worker classification and benefits falls to a deeply divided and dysfunctional Congress that is unlikely to make headway on these issues before midterms this fall.[23]  Updating the FLSA to include the gig economy in some capacity is the dream of gig workers, and nightmare of gig employers because of the financial burden it would have on businesses.[24]  Despite the ineptitude and lethargy of the current Congress, there is a collective effort on the part of gig economy businesses, unions, and public policy groups to tackle these issues.[25]  In January of 2018, Uber CEO Dara Khosrowshahi signed onto a letter with Service Employees International Union (“SEIU”) 775 President David Rolf, and Seattle investor and workers’ rights advocate Nick Hanauer urging the state of Washington “to develop a ‘portable benefits system’ to give contract workers in the so-called gig economy access to health care and retirement planning accounts.”[26]  In proposing these first steps to remedy the situations of independent contractors, the group also recognizes the difficulty of achieving these goals, stating “there are numerous ‘legal, policy and political hurdles’ why companies like Uber haven’t been able to offer contract employees benefits on their own.[27]  ‘These hurdles will only be overcome when parties are willing to sit down, put aside historical differences, and work together to develop a solution[.]’”[28]  Despite these calls from private businesses, unions, and interest groups, change rests on Congress to legislate on the issue by updating the FLSA or by providing supplemental legislative relief, such as portable benefits, for the independent contractor gig workers.  Until then, independent contractors will continue significantly contributing to the U.S. economy, while reaping none of the protections provided to traditional employees.

[1] See Abha Bhattarai, Side hustles are the new norm. Here’s how much they really pay., Wash. Post (Jul. 3, 2017), https://www.washingtonpost.com/news/business/wp/2017/07/03
/side-hustles-are-the-new-norm-heres-how-much-they-really-pay/?utm_term=.4780c4759c3f.

[2] Charles Colby & Kelly Bell, The On-Demand Economy Is Growing, and Not Just for the Young and Wealthy, Harvard Bus. Rev. (Apr. 14, 2016), https://hbr.org/2016/04/the-on-demand-economy-is-growing-and-not-just-for-the-young-and-wealthy.

[3] See id.

[4] Patrick Gillespie, Intuit: Gig economy is 34% of US workforce, CNNMoney (May 24, 2017), http://money.cnn.com/2017/05/24/news/economy/gig-economy-intuit/index.html.

[5] David Hale, Here’s Why People Are Flocking To The Gig Economy, HuffPost (Dec. 3, 2015), https://www.huffingtonpost.com/david-hale/heres-why-people-are-floc_b_8683182.html.

[6] Yuki Noguchi, Gig Economy Renews Debate Over Whether Contractors Are Really Employees, NPR (Mar. 7, 2018), https://www.npr.org/2018/03/07/589840595/gig-economy-renews-debate-over-whether-contractors-are-really-workers.

[7] Id.

[8] Michael Marr, Independent Contractor or Employee: Do You Pass the “Economic Realities” Test?, LexisNexis Legal Newsroom (Aug. 12, 2015), https://www.lexisnexis.com/
legalnewsroom/labor-employment/b/labor-employment-topblogs/archive/2015/08/12/
independent-contractor-or-employee-do-you-pass-the-economic-realities-test.aspx.

[9] Uber | Driver requirements | How to drive with Uber, https://www.uber.com/drive/requirements (last visited Apr. 18, 2018).

[10] instacart | Get paid to shop!, https://shoppers.instacart.com (last visited Apr. 18, 2018).

[11] Uber | Legal | United States Terms and Conditions of Service, https://www.uber.com/
legal/business/usa/en-US (last visited Apr. 18, 2018).

[12] instacart | Contracts | United States of America | Independent Contractor Agreement, https://shoppers.instacart.com/contracts/2017 (last visited Apr. 18, 2018).

[13] Marr, supra note 8.

[13] Uber, supra note 9.

[14] Id.

[15] Id.

[16] Ivana Kottasová, Top court: Uber should be regulated like a taxi company, CNNtech (Dec. 20, 2017), http://money.cnn.com/2017/12/20/technology/uber-taxi-company-europe/index.html.

[17] Id.

[18] Id.

[19] Daniel Wiessner, U.S. judge says Uber drivers are not company’s employees, Reuters (Apr. 12, 2018), https://www.reuters.com/article/us-uber-lawsuit/u-s-judge-says-uber-drivers-are-not-companys-employees-idUSKBN1HJ31I. “Uber does not exert enough control over drivers for its limo service, UberBLACK, to be considered their employer under the [FLSA]. The drivers work when they want to and are free to nap, run personal errands, or smoke cigarettes in between rides.”

[20] Todd B. Scherwin & Andrew J. Hoag, GrubHub Driver Found to Be Independent Contractor, Not Employee, Soc’y for Human Res. Mgmt. (Feb. 14, 2018), https://www.shrm.org
/resourcesandtools/legal-and-compliance/employment-law/pages/court-report-grubhub-driver-not-employee.aspx.

[21] Id.

[22] Id.

[23] Sheryl Gay Stolberg & Nicholas Fandos, As Gridlock Deepens in Congress, Only Gloom Is Bipartisan, N.Y. Times (Jan. 27, 2018), https://www.nytimes.com/2018/01/27/us/
politics/congress-dysfunction-conspiracies-trump.html.

[24] Megan Rose Dickey, Judge rules Grubhub properly classified delivery driver as independent contractor, TechCrunch (Feb. 8, 2018), https://techcrunch.com/2018/02/08/grubhub-v-lawson-ruling/. “In 2015, a Recode analysis estimated it would cost Uber $209 million to reclassify 45,000 drivers in California. As companies like Uber, Lyft and Postmates are still trying to reach profitability, the costs of reclassifying their workers could have a negative impact on their respective bottom lines.”

[25] Ali Breland, Uber CEO calls for new benefits system for gig economy workers, The Hill (Jan. 24, 2018), http://thehill.com/policy/technology/370506-uber-ceo-signs-letter-calling-for-portable-benefits-to-help-gig-workers.

[26] Id.

[27] Id.

[28] Id.

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Bye Bye Backpage.Com! Your Sex Slavey of Children Will Not Be Missed!

By: Joseph Rodriguez

One young girl was only fifteen when first being trafficked on the internet classified site entitled Backpage.com (“Backpage”) and raped over 1000 times.[1]  Someone she thought she could trust forced her into having sex in hotel rooms, and afterwards she stated that “[a]t one point, I finally accepted this was my fate and this was what I was going to be doing for the rest of my life,” and “I just kind of gave up.”[2]  Another child was trafficked at fifteen by a pimp using Backpage to advertise the child and raped over 900 times.[3]  An even younger child  was trafficked at age thirteen, described on a Backpage advertisement as “new,” “sweet,” and “playful” and repeatedly raped by men who responded to the advertisement.[4]  Fortunately, all three victims escaped the bondage seeking justice in the courts; instead the courts protected Backpage’s advertisements and site, dismissing their case.[5]

On April 17, 2018, after years of facilitating child sex crimes and human trafficking, Backpage was finally shut down.[6]  After a decade of denials Backpage’s CEO plead guilty to facilitating prostitution and money laundering in three states, agreeing to testify against his former bosses, who are Backpage’s co-founders.[7]  Previously, both co-founders, Michael Lacey and Jim Larkin, refused to testify before Congress “following a Senate report that accused the site of systematically editing its ‘adult’ ads to remove words that indicate sex trafficking.”[8]  However, both co-founders were arrested and indicted on ninety three counts, including conspiring to knowingly facilitate prostitution and money laundering.[9]

This is a huge victory for victims and survivors of human trafficking who were blocked from suing Backpage[10] due to a federal loop hole.[11]  Nevertheless, some claim Backpage’s shut down hurts their business, jeopardizes their safety,[12] and infringes on their labor rights.[13]  The prostitutes who formerly used Backpage propose decriminalizing their trade as the solution to human trafficking.[14]  They also claim Backpage gave them the opportunity to screen their clients, separating the good from the bad, thus they are in danger without Backpage.[15]

While their courage is applaudable, they fail to identify how women and children will be safer under their self-screening program, because even with all of Backpage’s resources they failed to provide adequate protection.[16]  The “let us handle it” argument[17] is similar to the “Good Samaritan” protection that decriminalized Backpage under Section 230.[18]  But, that wasn’t enough to the protect children or even adult women who chose to do “sex work” from being trafficked then, so how can more decriminalization and more self-screening protect them?[19]

One could argue decriminalizing prostitution removes pimps, effectively reducing human trafficking.[20]  However, that conclusion is only reachable by assuming that pimps would be less successful in trafficking children when prostitution is legal than when it is illegal.[21]  I propose that until a solution emerges, increasing safety for children and women from the danger presented by traffickers emerges, we should not make it easier for pimps or traffickers to target their next victim.

[1] Doe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 153 (D. Mass. 2015).

[2] Elain Aradillas, Sold for Sex: Underage Trafficking Victim Shares How She Was Saved From Abuse in New Documentary, People (Feb. 08, 2017), http://people.com/crime/sold-for-sex-underage-trafficking-victim-shares-how-she-was-saved-from-abuse-in-new-documentary/.

[3] Backpage.com, 104 F. Supp. 3d at 153.

[4] Id.

[5] Id. at 165.

[6] Shawn Cohen & Ruth Brown, Backpage.com Shuts down after reports of FBI raid, Ny Post (Apr. 06, 2018, 4:59 PM), https://nypost.com/2018/04/06/backpage-com-shuts-down-after-reports-of-fbi-raid/ (“Sleazy classified site Backpage.com was shut down Friday after the FBI raided the home of its co-founder, according to new reports.”).

[7] Tom Jackman, Backpage CEO Carl Ferrer pleads guilty in three states, agrees to testify against other website officials, Wash Post (Apr. 13, 2018), https://www.washingtonpost.com/news/true-crime/wp/2018/04/13/backpage-ceo-carl-ferrer-pleads-guilty-in-three-states-agrees-to-testify-against-other-website-officials/?utm_term=.c61084a277ba.

[8] Backpage.com executives refuse to testify at congressional hearing, CBS News (Jan. 10, 2017, 1:36 PM), https://www.cbsnews.com/news/backpage-com-executives-refuse-to-testify-congressional-hearing/.

[9] Megan Cassidy & Richard Ruelas, 93-count indictment on sex trafficking charges revealed against Backpage founders, USA Today (Apr. 9, 2018, last updated 11:48 PM), https://www.usatoday.com/story/news/nation-now/2018/04/09/backpage-indictment-unsealed/501214002/ (“The indictment instead said Backpage only wanted to create the perception that it was attempting to stop the selling of children for sex.”).

[10] Doe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 2015); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (July 27, 2012); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (Jan. 03, 2013); Backpage.com, LLC v. Hoffman, 2013 U.S. Dist. LEXIS 119811 (D.N.J. Aug. 20, 2013).

[11] The Communications Decency Act of 1996; 47 U.S.C. § 230 (c) Protection for “Good Samaritan” blocking and screening of offensive material.

[12] Laura LeMoon, Trump Just Signed Legislation That Could Be Deadly For Sex Workers Like Me, Huff Post (Apr. 15, 2018, 6:01 PM), https://www.huffingtonpost.in/2018/04/17/trump-just-signed-legislation-that-could-be-deadly-for-sex-workers-like-me_a_23412884/.

[13] Id. (“I started in the sex industry by force, working for a boyfriend-turned pimp in upper Manhattan and the Bronx.”).

[14] Id.

[15] Id.

[16] Id.

[17] Laura LeMoon, Trump Just Signed Legislation That Could Be Deadly For Sex Workers Like Me, Huff Post (Apr. 15, 2018, 6:01 PM), https://www.huffingtonpost.in/2018/04/17/trump-just-signed-legislation-that-could-be-deadly-for-sex-workers-like-me_a_23412884/.

[18] Doe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 2015); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (July 27, 2012); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (Jan. 03, 2013); Backpage.com, LLC v. Hoffman, 2013 U.S. Dist. LEXIS 119811 (D.N.J. Aug. 20, 2013); The Communications Decency Act of 1996; 47 U.S.C. § 230 (c) Protection for “Good Samaritan” blocking and screening of offensive material.

[19] See LeMoon, supra note 12; 47 U.S.C. § 230.

[20] See LeMoon, supra note 12.

[21] Id.

Distinguishing Themselves: Will College Athletes Ever Be Labeled as Employees?

By: Julia Johnson

For years lawsuits have been brought in an attempt to label student-athletes as employees of their universities and the National Collegiate Athletic Association (“NCAA”). Dawson v. National Collegiate Athletic Association et al. is a putative class action brought by a former University of Southern California football player in the U.S. District Court for the Northern District of California and alleges a denial of minimum wage to student-athletes by both the NCAA as well as Pac-12 Conference.[1] About a year ago, U.S. District Judge Richard Seeborg found that a majority of courts do not see college athletes as employees under the Fair Labor Standards Act (“FLSA”) dismissing the suit with prejudice.[2] The case is currently on appeal in the Ninth Circuit and each side is actively trying to strengthen their argument, while undermining their opponents.[3]

These types of cases are an uphill battle. The court has consistently ruled college athletes are not employees, which leaves parties in a difficult situation of distinguishing themselves from past cases.[4] Dawson is no different; when the case was first brought in 2017 Dawson’s counsel tried to distinguish their claims from those in Berger v. NCAA.[5] Track and field student-athletes brought another putative class action; this case was decided by the Seventh Circuit in December of 2016 and held that the University of Pennsylvania student-athletes were not employees under the FLSA, reasoning that athletes have traditionally competed without any real expectation of earning income.[6] Dawson’s counsel sought to distinguish their case involving football players from track and field by arguing major Division I football programs are structured more as revenue builders, which profit off of the on-field efforts of the student-athletes themselves.[7] NCAA countered this argument by stating that a revenue difference between different sports is legally irrelevant.[8] The court held Dawson’s counsel did not present legal authority to support their conclusion that Berger does not apply to this case.[9]

On Monday, April 2, 2018 the U.S. Supreme Court decided Encino Motorcars LLC v. Navarro et al. holding that auto service advisers are not covered by the FLSA overtime pay requirement.[10] This decision is the new point of emphasis for the parties in Dawson.[11] In a letter written on Wednesday, April 4, 2018 the NCAA argues that the Navarro decision overturns the previous holding that FLSA exemptions are to be read narrowly,[12] which is an argument Dawson’s counsel had relied on in their brief.[13] Dawson’s counsel responded via comment stating that the Navarro ruling is irrelevant because FLSA exemptions only cover certain jobs and job categories; there is not a job or job category remotely close to college football players.[14] It will be interesting to see how courts respond to the reading of FLSA exemptions from Navarro. Similarly to their attempt to distinguish from Berger, Dawson’s counsel will have to distinguish from the recent ruling of Navarro.[15]

It is unlikely the courts will rule for student-athletes as employees anytime soon. The constant holdings found across all circuits will make it difficult for anyone to build a complaint that successfully distinguishes their case from past rulings and is strong enough on its face to convince the courts to abandon precedent.

[1] See Dawson v. NCAA, 250 F. Supp. 3d 401, 403 (N.D. Cal. 2017).

[2] Id. at 406.

[3] Rick Archer, NCAA Cites High Court Ruling In Student-Athlete Wage Suit, Law360 (April 5, 2018), https://www.law360.com/employment/articles/1030240/ncaa-cites-high-court-ruling-in-student-athlete-wage-suit.

[4] See generally id.

[5] Dorothy Atkins, NCAA Dodges Ex-USC Football Player’s Wage Class Action, Law360 (April 25, 2017), https://www.law360.com/articles/917185.

[6] See Berger v. NCAA, 843 F.3d 285, 288 (7th Cir. 2016).

[7] Atkins, supra note 5.

[8] Id.

[9] Id.

[10] Encino Motorcars, LLC v. Navarro, 2018 U.S. LEXIS 2065, at *1 (2018).

[11] Archer, supra note 3.

[12] Id.

[13] Id.

[14] Id.

[15] See Atkins, supra note 5; See also Archer, supra note 3.

Hail Mary Part II

By: Jacqueline Gallagher

It has been almost six months since Kaepernick filed a grievance against the National Football League (“NFL”) and its thirty-two teams,[1] and yet, contrary to beliefs six months ago,[2] the discovery/deposition process is still ongoing.[3] Scott Ostler stated that “[w]hat Kaepernick started, quietly and at first unnoticed, has grown and spread, and isn’t going away soon. In the year that has passed, he has one no interviews. But for a silent man, Kaepernick continues to make a lot of noise.”[4] Although Kaepernick’s lawsuit has caused plenty of buzz from the media, the “legal business has been publicly quiet, but remains high on the owner’s anxiety list.”[5]

Kaepernick’s lawsuit has proceeded from the discovery to deposition phase of litigation and his legal team has begun “deposing numerous owners, executives, and other people who might have some knowledge of the situation.”[6] His attorneys “sought electronic communications (texts, emails, etc.) from numerous league and team employees – including high-ranking NFL officials, coaches, and general managers from teams like Dallas, Baltimore, Tennessee and others who signed quarterbacks and worked out quarterbacks in season,”[7] and exchanged nearly 100,000 documents.[8] Kaepernick has already requested discovery and depositions from Cowboys owner, Jerry Jones,[9] Dolphins owner, Stephen Ross,[10] Roger Goodell, the NFL commissioner, Seahawk’s head coach Pete Carroll, and 49ers owner, Jed York.[11] Recently, Kaepernick’s legal team sent deposition requests to Jane Goodell, the wife of Roger Goodell, as well as John Schnatter, the former CEO of Papa John’s pizza.[12]

Ravens head coach, John Harbaugh, asked friends for their advice on signing Kaepernick, and “at least one of those friends is a high-ranking member of the U.S. military who essentially told Harbaugh to seriously consider if Colin’s national anthem demonstration fell in line with the team’s core values.”[13] It is no secret that “Trump is close with several owners and called kneeling players ‘son’s of b——,‘ imploring owners to ‘fire’ them.”[14] So, will Kaepernick’s team try and depose that high-ranking member of the U.S. military and the President of the United States?

Despite some expert opinions that this lawsuit will not end in Kaepernick’s favor, Kaepernick’s legal team seems to believe that Kaepernick is going to win.[15] According to one of Kaepernick’s attorneys, “proving collusion does not require proof of some explicit document, but a demonstration of a pattern that two or more NFL teams, or one or more teams and the NFL itself, had an agreement to limit his employment options.”[16] After contact with Stephen B. Burbank, the special master for the NFL from 2002 until 2011 and current league’s system arbitrator, Kaepernick’s attorney stated that “[m]y review of the documents makes me a pessimist of people being good and doing the right thing. Though I am extra confident after reviewing the records that Mr. Kaepernick is going to get justice through these proceedings. It reflects a very nasty time period that we live in.”[17]

Obviously, no one knows how this lawsuit will end with certainty, however, some people think that the NFL must do something about the uproar that Kaepernick has caused. Some people believe that “[i]n passing on Kaepernick, NFL franchises have signaled that they believe the quarterback’s potential ‘brank risk’ outweighs his on-field value.”[18] Those same people believe that “[w]ith viewership on the decline and the average viewer age of fifty, the NFL, as a whole, should act soon,” and ironically, the simple solution to this problem is to hire Kaepernick.[19]

 

[1] Evan Gibbs, Colin Kaepernick’s Grievance, ABOVE THE LAW (Oct. 16, 2017), https://abovethelaw.com/2017/10/colin-kaepernicks-grievance/?rf=1.

[2] Jason La Canfora, Colin Kaepernick’s collusion grievance against NFL moving forward, CBS SPORTS (Oct. 22, 2017), https://www.cbssports.com/nfl/news/colin-kaepernicks-collusion-grievance-against-nfl-moving-forward/.

[3] Joshua Schrock, NFL Rumors: Roger Goodell’s Wife To Be Deposed In Colin Kaepernick Case, NESN (Feb. 14, 2018, 6:02 PM), https://nesn.com/2018/02/nfl-rumors-roger-goodells-wife-to-be-deposed-in-colin-kaepernick-case/.

[4] Scott Ostler, Forgettable anniversary for Colin Kaepernick, San Francisco Chronicle (Mar. 3, 2018, 6:57 PM), https://www.sfchronicle.com/sports/ostler/article/Forgettable-anniversary-for-Colin-Kaepernick-12725913.php.

[5] Id.

[6] David Fucillo, Colin Kaepernick wears Kunta Kinte shirt to deposition for Texans owner Bob McNair, SB Nation Niners Nation (Mar. 16, 2018, 1:09 PM), https://www.ninersnation.com/2018/3/16/17131114/colin-kaepernick-kunta-kinte-shirt-bob-mcnair-deposition.

[7] Jen Krausz, Colin Kaepernick NFL Collusion Lawsuit Is Moving Forward, (Feb. 7, 2018, 6:19 PM), http://www.thedp.com/article/2018/02/colin-kaepernick-collusion-lawsuit-nfl-burbank-trump-penn-professor-arbitrator-system-law-university.

[8] Jason La Canfora, Colin Kaepernick’s grievance against NFL moving forward, dates to be determined, CBS SPORTS (Feb. 6, 2018), https://www.cbssports.com/nfl/news/colin-kaepernicks-grievance-against-nfl-moving-forward-dates-to-be-determined/.

[9] Dallas Robinson, Latest On Colin Kaepernick’s Collusion Lawsuit, PRO FOOTBALL RUMORS (Feb. 14, 2018, 11:35 AM), https://www.profootballrumors.com/2018/02/latest-on-colin-kaepernicks-collusion-lawsuit.

[10] Jason La Canfora, Dolphins owner aware of Kaepernick subpoena hours before recanting quote, CBS SPORTS (Mar. 6, 2018), https://www.cbssports.com/nfl/news/dolphins-owner-aware-of-kaepernick-subpoena-within-hours-of-recanting-quote/.

[11] Robinson, supra note 9.

[12] Id.

[13] Colin Kaepernick, U.S. Military Official Cautioned Ravens . . . On Signing QB, TMZSPORTS (Mar. 5, 2018, 1:00 AM), http://www.tmz.com/2018/03/05/colin-kaepernick-baltimore-ravens-qb-nfl/.

[14] Jason La Canfora, Colin Kaepernick’s legal team could depose Papa John’s CEO in collusion case, CBSSPORTS (Feb. 13, 2018), https://www.cbssports.com/nfl/news/colin-kaepernicks-legal-team-could-depose-former-papa-johns-ceo-in-collusion-case/.

[15] Selena Hill, Colin Kaepernick’s Lawyer To Move Forward In Legal Proceedings In Right-To-Work Suit, BLACK ENTERPRISE (Jan. 8, 2018), http://www.blackenterprise.com/colin-kaepernicks-right-work-suit/.

[16] James Meadows, Did the NFL collude against Colin Kaepernick? A Penn Law prof. has a key role in deciding, The Daily Pennsylvanian (Feb. 25, 2018, 8:50 PM), http://www.thedp.com/article/2018/02/colin-kaepernick-collusion-lawsuit-nfl-burbank-trump-penn-professor-arbitrator-system-law-university.

[17] Id.

[18] Morela Hernandez & Joseph (Sonny) Siragusa, Why Colin Kaepernick may be just what the NFL needs, Washington Post (Mar. 1, 2018), https://www.washingtonpost.com/news/business/wp/2018/03/01/why-colin-kaepernick-may-be-just-what-the-nfl-needs/?noredirect=on&utm_term=.7483e9f33392.

[19] Id.

Title VII Expands: Adding “Sexual Orientation” to the Roster

By: Megan Foggia

Title VII is a federal statute that prohibits various types of discrimination in the employment context.[1] This statute ensures that employees are not discriminated against by their employers on the basis of sex, gender, race, color, national origin, or religion.[2] Whether or not sexual orientation discrimination falls under the category of sex discrimination, and thus under the protections of Title VII, has been long argued.[3] Title VII was born out of a desire to establish nondiscriminatory procedures in the employment context, but the categories that Title VII provides protections for have never been altered or expanded to include sexual orientation.[4] Until recently, sexual orientation or gender identity discrimination was not held to fall anywhere on the spectrum of employment discrimination, leaving employers the ability to discriminate based on such factors.[5]

On February 26, 2018, the Second Circuit Court of Appeals answered the broad question of whether Title VII prohibits discrimination on the basis of sexual orientation under the term “sex” within the statute.[6] The court answered in the affirmative, a sweeping decision that overturned not only the court’s previous decision in Zarda v. Altitude Express, but also other decisions answering the question in the negative.[7] The plaintiff in the case is Donald Zarda, a skydiving instructor for Altitude Express who mentioned to a female client that he was gay.[8] Zarda was later fired and subsequently brought the suit claiming he had been fired solely for being open about his sexual orientation.[9] The court held that:

Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. . . . Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account[10]

They reasoned that while Congress did not have sexual orientation in mind when enacting Title VII, Congress likely did not intend to include sexual harassment under Title VII either, however sexual harassment claims are now brought under Title VII.[11]

The Zarda decision was far from unanimous.[12] The dissent argued fiercely for the stance that had Congress ever intended to include sexual orientation, it would have expressly done so within the statute itself.[13] In support of their position, the dissent noted that at the time Title VII was enacted in 1964, gay marriage was criminalized in a majority of the states.[14] Whether the merits lie with the majority or the dissent does little to dispel one fact: future implications for employers engaging in sexual orientation discrimination are vast.

[1] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq.

[2] Id.

[3] Angela Boutwell, The Saga Continues: Second Circuit Court of Appeals Holds that Sexual Orientation Discrimination is Sex Discrimination Under Title VII, Lab. and Employ L. Perspectives (Mar. 5, 2018), https://www.laboremploymentperspectives.com/2018/03/05/the-saga-continues-second-circuit-court-of-appeals-holds-that-sexual-orientation-discrimination-is-sex-discrimination-under-title-vii/#more-4557.

[4] Id.

[5] Id.

[6] Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2nd Cir. 2018).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 117.

[14] Id.

A Battle Over Immigration: California Businesses Caught in the Crossfire

By: Connor Herdic

 In July of 2015, Donald Trump, then presidential candidate, exclaimed that immigrants are “taking our jobs . . . they’re taking our money.”[1] Following up on his campaign promise to “get tough on immigration,” U.S. Customs and Immigration Enforcement (ICE), under his direction, arrested approximately 46,000 undocumented immigrants who had no prior criminal record, which was a 171% increase from 2016.[2] As ICE continues to intensify its efforts to enforce President Trump’s controversial immigration platform, California has decided to challenge this Administration’s unprecedented immigration policy by enacting its own legislation to protect the millions undocumented workers, who collectively bring in an estimated $180 billion per year to the Californian economy.[3]

Last fall, California Governor Brown signed the Immigrant Worker Protection Act (IWPA) to safeguard workers from aggressive and unsuspecting raid tactics being taken by ICE officials at businesses throughout the state.[4] Under this new law, employers are restricted from cooperating with federal authorities in certain situations.[5] An employer is required to notify an employee, and any collective bargaining representative, upon receiving a notification from ICE officials who are requesting a worker’s I-9 Form.[6] The law also mandates that an employer cannot allow a federal official, whom lacks a warrant, from entering non-public workspace or from interviewing employees at the premises.[7] Additionally, the law forbids employers from sharing confidential employee information without a subpoena and requires employers to notify employees before employee records are subjected to a federal audit.[8]

The Trump Administration’s hard line immigration tactics, coupled with the quick response from California in passing the IWPA, has placed employers in a precarious situation between federal and state law. In response to the IWPA, the acting ICE Director, Thomas Homan, has threatened to increase ICE’s presence in California and to conduct more widespread raids at local businesses.[9] However, California Attorney General Becerra recently issued guidance to inform all employers to “be aware of this new law because ignorance of the law is no excuse.”[10] Attorney General Becerra reiterated his intention to enforce the IWPA with civil penalties ranging from $2,000 to $10,000 for noncomplying employers.[11] With strong language coming from both directions, employers are faced with a difficult dilemma; they “don’t want to flout the instructions of federal immigration enforcement agents, but, at the same time, they don’t want to break California law and be subjected to fines.”[12]

Legislators who drafted the bill maintain that it is constitutional and that it will provide a needed sense of protection to workers, while others believe that federal law preempts the IWPA. San Francisco Assemblyman David Chiu emphasized that the “U.S. Constitution protects against unreasonable searches and seizures, so warrants and subpoenas are required for these types of ICE raid and audit investigations.”[13] Echoing Mr. Chiu’s sentiments, Governor Brown explained that the IWPA does not hinder ICE’s ability to do its job, but that it does “bans unconstitutional detainer requests and prohibits the commandeering of local officials to do the work of immigration agents.”[14]

In contrast, Jonathan Turley, a law professor at George Washington University, believes that the IWPA may provide U.S. Attorney General Jeff Sessions leverage to undermine the IWPA.[15] Professor Turley found support for his position in an unlikely place.[16] In 2012, Kamala Harris, then California Attorney General, drafted a brief in opposition to an Arizona effort to curtail federal immigration law.[17] Harris stressed that “a patchwork of separate removal policies would undermine the nation’s need to speak with one voice in immigration matters.”[18] Only time will tell whether U.S. Senator Harris’ words will be used to dismantle the IWPA.

On March 6, 2018, the U.S. Department of Justice filed suit against the State of California alleging that the IWPA “reflect[s] a deliberate effort by California to obstruct the United States enforcement of immigration law” and that the IWPA regulates private employers “that want to cooperate with federal authorities.”[19] Despite the recent lawsuit and ICE threats to increase workplace raids, Darrell Steinburg, the Mayor of Sacramento, is prepared for the legal battle and vows to protect “hard-working immigrant families and law-abiding people who are just trying to make their way like the rest of us.”[20]

[1] Nick Miroff, Trump Says American Workers are Hurt by Immigration. But After ICE Raided this Texas Town, They Never Showed Up, The Washington Post (Mar. 4, 2018), https://www.washingtonpost.com/world/national-security/trump-says-american-workers-are-hurt-by-immigration-but-after-ice-raided-this-texas-town-they-never-showed-up/2018/03/04/8ce16362-1d65-11e8-ae5a-16e60e4605f3_story.html?utm_term=.9669007f81d7.

[2] Tal Kopan, How Trump Changed the Rules to Arrest More Non-Criminal Immigrants, CNN (Mar. 2, 2018), https://www.cnn.com/2018/03/02/politics/ice-immigration-deportations/index.html.

[3] Kevin De Leon, California Economy Depends on Undocumented Workers, Mercury News (Jan. 2, 2018), https://www.mercurynews.com/2018/01/02/de-leon-california-economy-depends-on-undocumented-workers/.

[4] See Dan Mangan, Trump Threatens to Yank Immigration Enforcement from California, Warns Crime Would Explode, CNBC (Feb. 22, 2018), https://www.cnbc.com/2018/02/22/trump-threatens-to-withdraw-immigration-enforcement-from-california.html.

[5] Jonathan Turley, California Immigrant Worker Law is a Golden Opportunity for Jeff Sessions, The Hill (Jan. 22, 2018), http://thehill.com/opinion/judiciary/370012-california-immigrant-worker-law-is-a-golden-opportunity-for-jeff-sessions.

[6] See California Immigrant Worker Protection Act, Assembly Bill 450 (2017).

[7] Id.

[8] Id.

[9] See Anita Chabria, California Employers Caught Between Feds and State on Immigration, Sacramento Bee (Jan. 22, 2018), http://www.sacbee.com/news/local/article196066869.html.

[10] Id.

 [11] Id.

[12] Id.

[13] Randol White, California Law Protects Private Workplaces and Companies from ICE Raids, Central Coast Public Radio (Feb. 13, 2018), http://kcbx.org/post/california-law-protects-private-workplaces-and-companies-ice-raids#stream/0.

[14] Mandan, supra note 4.

[15] See Turley, supra note 5.

[16] See id.

[17] See id.

[18] Id.

[19] Katie Benner & Jennifer Medina, Trump Administration Sues California Over Immigration Laws, N.Y. Times (Mar. 6, 2018), https://www.nytimes.com/2018/03/06/us/politics/justice-department-california-sanctuary-cities.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news.

[20] Id.

 

If teachers wanted to carry guns, they wouldn’t have been teachers. The real solution to school shootings.

By: Amanda Lilla

Contrary to what many second amendment supporters may think, the right to bear arms for lawful purpose is not granted by the second amendment.[1] The second amendment only means that such right shall not be infringed upon by congress,[2] so should our states be doing more?

Unfortunately, it seems more now than ever, America has been hearing of tragic school shootings.[3] The pattern is a painfully familiar one.[4] News breaks that an unknown number of victims were killed by gunfire at a school, store, or other public place.[5] With a closing window for reform, politicians and activists quickly push for new gun laws.[6] But as time elapses, support decreases.[7] Soon enough, the passions fade, and society returns to the status quo.[8]

Most recently, on February 14, 2018, a gunman set off alarms as he entered and shot up a Florida high school.[9] The gunman, now known as Nikola Cruz, nineteen years old, entered Parkland Florida High School with an AR-15 assault rifle[10] and killed 17 people.[11] Shortly after the Parkland school shooting, President Donald Trump, “suggested a controversial proposal to arm teachers, with the hope of deterring gunmen like the one who killed 17 people . . . in South Florida.”[12] Ten days after the shooting President Trump tweeted:

Armed Educators (and trusted people who work within a school) love our students and will protect them. Very smart people. Must be firearms adept & have annual training. Should get yearly bonus. Shootings will not happen again – a big & very inexpensive deterrent. Up to States.[13]

However, Mr. Wasmer, a guidance counselor at Perry Hall High School,[14] located in Baltimore Maryland,[15] stated:

I think as educators we’re trained to nurture kids and foster kids, and our first instinct is to not shoot or harm them,” he said. “What we need is more caring adults in these kids’ lives, not more guns.[16]

Perhaps, there is a better solution. As of 2016, there were a recorded 453,000 unemployed veterans.[17] One in every five veterans currently has no disability.[18] When veterans learned of President Trump’s idea of arming teachers, they panned the idea.[19] Our veterans have “experience using high-powered weapons and firing under duress.”[20] Jay Kirell, an Afghanistan veteran, stated “[s]hooting under stress is extremely difficult. Even for the most well-trained shooters, [a] teacher is not going to be able to do this. Cops & soldiers literally get paid to do this & most of them can’t shoot accurately under stress.”[21] Dennis Magnasco, a pro second amendment citizen and veteran, stated in response to President Trump’s proposal:

I’m pro gun ownership, but I I’ve also seen first-hand what a rifle round does to a body while serving as a medic in Afghanistan. It makes me sick to know American students have seen it in their schools. Don’t tell me this is the best we can do. #VetsForGunReform.[22]

Rather than recommending the arming of teachers, President Trump may want to kill two birds with one stone by: (1) Employing our unemployed veterans, by (2) Arming them inside schools.

[1] U.S. Const. amend. II.

[2] Id.

[3] John McCarthy, Worst school shootings in U.S. history (Feb. 15, 2018, 10:37 AM), Florida Today, https://www.floridatoday.com/story/news/crime/2018/02/14/worst-school-shootings-u-s-history/338847002/.

[4] Josh Blackman & Shelby Baird, The Shooting Cycle, 46 Conn. L. Rev. 1513, 1516 (May 2014).

[5] Id. at 1517.

[6] Katie Zezima, Fla. school shooting creates urgent push for gun control, bipartisan calls for change, Washington Post (Feb. 19 2018), https://www.washingtonpost.com/national/fla-school-shooting-creates-urgent-push-for-gun-control-bipartisan-calls-for-change/2018/02/19/1279e5e6-15b2-11e8-8b08-027a6ccb38eb_story.html?utm_term=.99c12d606e07.

[7] German Lopez, I’ve covered gun violence for years. The solutions aren’t a big mystery. America can prevent shootings. But it has to come to grips with the problem., Vox (Feb. 21, 2018, 1:20 PM), https://www.vox.com/policy-and-politics/2018/2/21/17028930/gun-violence-us-statistics-charts.

[8] Blackman & Baird, supra note 4.

[9] Madeline Farber, Florida school shooting timeline, Fox News (Feb. 28, 2018), http://www.foxnews.com/us/2018/02/28/florida-school-shooting-timeline.html (last visited Mar. 18, 2018).

[10] Id.

[11] Eric Levenson & Joe Sterling, These are the victims of the Florida school shooting, CNN (Feb. 21, 2018, 11:56 AM), https://www.cnn.com/2018/02/15/us/florida-shooting-victims-school/index.html.

[12] John Wagner, President Trump says arming teachers would be up to the states and ‘very inexpensive’, Washington Post (Feb. 24, 2018), https://www.washingtonpost.com/news/post-politics/wp/2018/02/24/president-trump-says-arming-teachers-would-be-up-to-states-and-very-inexpensive/?utm_term=.452be5f8d9f9.

[13] Id.

[14] Erica L. Green & Manny Fernandez, Trump Wants to Arm Teachers. These Schools Already Do., NY Times (Mar. 1, 2018), https://www.nytimes.com/2018/03/01/us/armed-teachers-guns-schools.html.

[15] Id.

[16] Id.

[17] Employment Situations of Veterans – 2016, U.S. Dep’t of Labor (Mar. 22, 2017), https://www.bls.gov/news.release/pdf/vet.pdf.

[18] Id.

[19] Christopher Woody, Trump has suggested arming teachers to defend classrooms – and veterans are ripping the idea, Business Insider (Feb. 22, 2018, 2:53 PM), http://www.businessinsider.com/veterans-teachers-criticize-trump-arming-teachers-in-schools-2018-2.

[20] Id.

[21] Id.

[22] Jared Keller, What Do Combat Vets Think Of Trump’s Proposal To Arm Teachers Against School Shootings?, Task & Purpose (Feb. 22, 2018), https://taskandpurpose.com/combat-vets-trump-arm-teachers-shootings/.

The Increasing Job Description of A Teacher in 2018

By: Heather Hulkower

Recently, teachers have been protesting for higher pay as their job descriptions are expanding.[i] On March 6, 2018, in West Virginia, teachers were demanding a five percent pay raise.[ii] Teacher activism often occurs during times of “social upheaval” in impoverished areas.[iii] For example, in 1897 in the city of Chicago, teachers were in charge of sixty student classrooms, with many students who could not speak English, in areas where child labor and typhoid in water were at issue.[iv] Protests and marches like these are supposedly inspired by the actions of Susan B. Anthony and other suffragists.[v] Although these exact issues may not occur in today’s society, growing problems are impacting both teachers and students in schools.[vi]

Today, teachers not only have to worry about the educational experiences of their students, but also the two biggest issues of an “intractable drug crisis on top of a growing nationwide fear of bloodshed in the classroom.”[vii] The first issue I will discuss is the threats of school shootings. Chris Tennyson, a principal at an Illinois high school, told a story about a female student stopping him to show him Snapchat messages on her phone from a former student.[viii] These messages stated, “I’m locked, loaded, and ready to go. People will be hurt, hell maybe even killed. I won’t stop.”[ix] Common acts like this instill a harsh fear in teachers that did not seem to be at issue in earlier decades.[x] President Trump suggested that one way a teacher can earn more is by being armed to protect students.[xi] Ms. Hillard, a teacher from a West Virginia High School, while discussing arming teachers in the classroom stated, “Our job descriptions are expanding. It becomes ‘Lay down your life if you have to.’”[xii]

Second, drugs and poverty have played a huge role in the expanding responsibilities of teachers.[xiii] West Virginia has the nation’s fourth highest unemployment rate and an opioid overdose death rate that is more than three times the national average.[xiv] Jay O’Neal, a seventh grade English teacher and one of the leaders of the strike, explains that grandparents are raising his students due to their parents’ drug addictions.[xv] He and many other teachers believe parents are even selling their children’s ADHD medication, which directly impacts their behavior in schools.[xvi] O’Neal not only has to play the part as teacher, but also uses his own money to “stock a closet for students whose clothes are dirty or do not fit, or who come in wearing shorts when it’s freezing outside.”[xvii] Teachers also provide students with an “angel tree” in which teachers provide them with Christmas gifts.[xviii] Unfortunately, there is only so much a teacher can do, especially with the resources and minimal salaries they are provided.[xix]

However, the teachers’ strike has made improvements within the system.[xx] Teachers in West Virginia earned an average of about $46,000, which is $13,000 less than the national average.[xxi] In only three states did teachers earn less; these states include Mississippi, South Dakota and Oklahoma.[xxii] Last week, Governor James C. Justice announced a plan to increase pay by five percent and teachers demanded the Legislature vote to make it official.[xxiii] The legislature agreed and the governor promised that the raise would not be taken from cuts to Medicaid.[xxiv] Mr. Justice said “[t]here’s not a chance on this planet that’s going to be the case” because “[w]e have cash in the balances in Medicaid that will absolutely backstop any cuts whatsoever from Medicaid.”[xxv] Teachers soon found success in their protest for a pay raise.[xxvi] The strike caused, “the state’s public schools to a halt for nine days, a remarkable show of defiance by the teachers in a state where the power of organized labor, once led by strong mining unions, has greatly diminished.”[xxvii]

[i] Dana Goldstein, Fighting Poverty, Drugs and Even Violence, All on a Teacher’s Salary, Newsday (Mar. 6, 2018), https://www.nytimes.com/2018/03/06/us/west-virginia-teachers-strike.html?rref=collection%2Ftimestopic%2FOrganized%20Labor.

[ii] Id.

[iii] Id.

[iv] Id.

[v] Susan Chira, Defiant Voices Flood U.S. Cities as Women Rally for Rights, Newsday (Jan. 21, 2017), https://www.nytimes.com/2017/01/21/us/women-march-protest-president-trump.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article.

[vi] Id.

[vii] Goldstein, supra note 1.

[viii] Id.

[ix] Julie Bosman, Anatomy of a School Lockdown: A Threat, Then the Anxious Wait, N.Y. Times (Mar. 2, 2018), https://www.nytimes.com/2018/03/02/us/threat-school-shooting.html.

[x] Id.

[xi] Id.

[xii] Goldstein, supra note 1.

[xiii] Id.

[xiv] Local Area Unemployment Statistics, U.S. Dep’t of Labor (Mar. 12, 2018), https://www.bls.gov/web/laus/laumstrk.htm. See also Opioid Overdose Death Rates and All Drug Overdose Death Rates per 100,000 Population (Age-Adjusted), Henry J Kaiser Family Foundation (2018), https://www.kff.org/other/state-indicator/opioid-overdose-death-rates/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.

[xv] Goldstein, supra note 1.

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Estimated Average Annual Salary of Teachers in Public Elementary and Secondary Schools, by State: Selected Years, 1969-70 Through 2016-17, Nat’l Ctr. for Educ. Statistics (2017), https://nces.ed.gov/programs/digest/d17/tables/dt17_211.60.asp?current=yes.

[xxii] Id.

[xxiii] Goldstein, supra note 1.

[xxiv] Jess Bidgood, West Virginia Raises Teachers’ Pay to End Statewide Strike, N.Y. Times (Mar. 6, 2018), https://www.nytimes.com/2018/03/06/us/west-virginia-teachers-strike-deal.html.

[xxv] Id.

[xxvi] Id.

[xxvii] Id.

 

“Following” the NLRB: Posting Your Boss is a Mother F**ker

By: Danielle Corbisiero

From intense dinner conversations, demonstrations, and social media discussions on disagreements with sheer strangers and friends alike, the world of today is one of divided opinions. With this in mind, social media profiles offer insight into peoples’ lives, but should employers be permitted to peek into private lives despite very public profiles? The number of employers looking into an employee’s or potential candidate’s online presence has also increased.[1] Despite social media penetrating all aspects of our live, the law has been unable to keep pace with revolutionized access to one another up until recently.[2] A decision as of late 2017, The Boeing Company,[3] articulated for evaluating the facial validity of work rules while overturning the “reasonably construed standard” of Lutheran Heritage.[4]

The National Labor Relations Board (NLRB) shook the nation when it issued a complaint against an ambulance company for discharging an employee for criticizing a superior on Facebook.[5] A wide misinterpretation headlined newspapers and press alike, characterizing an assertion of protection for off-duty employee postings.[6] Progressively, the NLRB’s focus on the burgeoning use of social media in the workplace has deepened.[7] After several decisions, the general consensus is that workers cannot be fired for social media posts that would be considered “protected activities.”[8]

The National Labor Relations Act (NLRA) constitutes the structure governing the labor relations of the United States, with a focus on daily social media use, which emanates daily from a non-unionized workplace.[9] This promulgation from Congress declared a policy prohibiting employers from “[denying] the right of employees to organize.”[10] Section 7 of the NLRA discusses how it is considered “unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed.”[11]

The spark of the social media issue made headway in Pier Sixty, when a catering hall employee reacted to his supervisor’s conduct by creating a social media post about him.[12] The post read, “Bob is such a NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”[13] The NLRB ruled 2-1 that the firing violated labor laws.[14] The three-judge panel of the Second Circuit upheld the decision that the post “vulgar and inappropriate,” but “not so egregious as to exceed the NLRA’s protection.”[15] At the time of the post, the employee accompanied his MF’ing outburst with a union message, which the appellate court held Section 7 protected him.[16]

The original standard, the Lutheran Heritage,[17] provides that an employer’s civility rules are unlawful if they explicitly restrict activities protected by Section 7.[18] If it does not explicitly violate Section 7, it may if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”[19] On December 14, 2017, the NLRB established a new standard governing workplace policies.[20] The Board analyzed in The Boeing Company, whether workplace rules violate federal labor law in a decision that signed off on a policy prohibiting employees from using cameras.[21] To evaluate a “facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights.”[22] From which, the Board overturned Lutheran Heritage[23] and based their new standard on two factors: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”[24]

The Boeing Company[25] discussed how “employees are disadvantaged when [] denied general guidance regarding what standards of conduct are required and what treatment they can reasonably expect from coworkers.”[26] The policy that prohibited cameras on premises under The Boeing Company, may prevent employees from taking photographs of their activities and posting them to social media, even if they are organizing.[27] However, the no-camera rule does not prohibit employees from protesting or exercising their Section 7 right, albeit their inability to photograph the event.[28] Thus far, there have been no allegations that the new standard has interfered with Section 7 activities or prevented protected activity. [29]

The controversy revolving around social media may have led employees to include social media rules in their Handbooks.[30] Employers, who have eliminated civility policies under Lutheran Heritage,[31] are now overruled.[32] To include rules in Employee Handbooks, they must clearly spell out the rationalizations that support the policy.[33] For other Handbook policies, i.e. social media, restrictions on cameras, and protecting the company’s reputation, employers may now maintain those rules with more confidence due to heightened flexibility.[34] To proceed with caution, these policies should still be supported by reasonable business justifications.

[1] Chad Brooks, Keep It Clean: Social Media Screenings Gain in Popularity, Business News Daily (Jun. 16, 2017), https://www.businessnewsdaily.com/2377-social-media-hiring.html.

[2] Vivek Wadhw, Laws and Ethics Can’t Keep Pace with Technology, Technology Review (Apr. 15, 2014), https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-technology/.

[3] See NLRB v. The Boeing Company, 365 NLRB No. 154 (2017).

[4] See NLRB v. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

[5] Carole King, You Got a Friend, on Tapestry (CBS Mastersound 1971).

[6] See, e.g., Leo Standora, National Labor Relations Board Backs Medic Fired Over Facebook Post, N.Y. Daily News (Nov. 9, 2010, 4:00 AM), http://www.nydailynews.com/news/money/national-labor-relations-board-backs-medic-fired-facebook-post-article-1.453077 (“[The] case could set a precedent in the fight between employees and companies that fire them over online postings.”).

[7] See Melvin W. Haas, III, #Whatsitallabout? – Social Media in the Workplace, Georgia’s Employer Association (May 14, 2014), https://georgiaemployers.org/social-media-workplace/.

[8] Gail Lin, Can You Be Fired for Political Social Media Posts, Outten & Golden (Mar. 2, 2017), https://www.employmentlawblog.info/2017/03/can-you-be-fired-for-political-social-media-posts.shtml.

[9] Melissa Gonzalez, Employer Social Media Policies Struck Down as NLRB Targets Non-Union Workplaces, Kctv5.com (Nov. 13, 2013, 1:47 PM), http://www.kctv5.com/story/23958992/employer-social-media-policies-struck-down-as-nlrb-targets-non-union- workplaces.

[10] 29 U.S.C. § 151 (2017).

[11] Id.

[12] See Pier Sixty, LLC, 362 NLRB No. 59, at *1 (2015).

[13] Id. at 2 (The original post contained the explicit language, absent the *).

[14] Ed Mazza, Read This Before You Call Your Boss a Motherf**ker, Huffington Post (Apr. 25, 2017), https://www.huffingtonpost.com/entry/curse-boss-court-ruling_us_58fee8e0e4b0b6f6014a539e.

[15] Id.

[16] Jon Hyman, Court: It’s OK for an Employee to Curse Out His Boss on Facebook, Work Force (Apr. 25, 2017), http://www.workforce.com/2017/04/25/court-ok-employee-curse-boss-facebook/.

[17] See NLRB v. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

[18] NLRB Establishes New Standard Governing Workplace Policies, and Upholds No-Camera Policy in Boeing, NLRB (Dec. 14, 2017), https://www.nlrb.gov/news-outreach/news-story/nlrb-establishes-new-standard-governing-workplace-policies-and-upholds-no.

[19] Id.

[20] Id.

[21] Robert Iafolla, NLRB creates new test for workplace rules in Boeing case, overturning Lutheran Heritage, Westlaw (Dec. 15, 2017).

[22] Id.

[23] See NLRB v. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

[24] Id. (explaining how the new balancing test has three categories: (1) rules that the Board designates to be facially lawful either; (2) rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights; and (3) rules that prohibit or limit the NLRA).

[25] See NLRB v. The Boeing Company, 365 NLRB No. 154 (2017).

[26] See Id.; See also Fisher Philips, Don’t Call It A Comeback: The “Return” Of Workplace Civility Rules, J.D. Supra (Mar. 7, 2018), https://www.jdsupra.com/legalnews/don-t-call-it-a-comeback-the-return-of-97273/.

[27] See NLRB v. The Boeing Company, 365 NLRB No. 154 (2017).

[28] Id.

[29] Id.

[30] See Social Policy, Society for Human Resource Management (May 2012), https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/socialmediapolicy.aspx.

[31] See NLRB v. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

[32] See Susan Willis, Don’t Call It A Comeback: The “Return” Of Workplace Civility Rules, Fisher Philips (Mar. 1, 2018), https://www.fisherphillips.com/resources-newsletters-article-dont-call-it-a-comeback-the-return.

[33] Id.

[34] Lisa Nagele-Piazza, NLRB Ruling Provides More Flexibility for Employer Handbook Policies, Society for Human Resource Management (Dec. 18, 2017), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/labor-relations-employee-handbooks.aspx.

The U.S. Should Follow New Zealand’s Lead and Create Paid Family Leave

By: Rachel Trifon

The recent announcement of New Zealand Prime Minister Jacinda Arden’s pregnancy has once again started discussion about the family leave programs offered by various countries.[1] The thirty-seven year old leader, who was elected in October of 2017, will continue to carry out her duties until she gives birth and then will take a six week leave of absence, before returning to work, with her child and partner Clarke Gayford right by her side.[2] Although Prime Minister Arden, who is due in June, is not the first woman to serve as New Zealand’s leader, she is the first to serve while pregnant and take parental leave.[3] Former Prime Minister Jennifer Shipley who served from 1997-1999 and former Prime Minister Helen Clark who served from 1999-2008 both congratulated Ms. Arden on her pregnancy announcement.[4]

Ms. Arden has previously spoken out about the importance of a work life balance for women and in a recent press conference she commented that, “she was not the first woman to multitask nor the first to work and have a baby.”[5] Before her appointment to Prime Minister, Ms. Arden helped pass a bill that increased paid family leave in New Zealand to twenty-two weeks.[6] The twenty-two week entitlement, which becomes effective on July 1, 2018, is an expansion from the previous program that granted eighteen weeks.[7] However, this is just part one of the bill and part two increases family leave to twenty-six weeks by July 1, 2020.[8] After this legislation was passed on November 30, 2017, New Zealand Minister of Workplace Relations and Safety Iain Less-Galloway commented on the importance of supporting working families and “catch[ing] up with the best international practices”.[9]

The top ten countries with the best family leave programs are all found in Europe and include Poland, Estonia, Italy, Hungary, Ireland, Czech Republic, Croatia, Slovakia, United Kingdom, Greece and Bulgaria.[10] Poland and Estonia are tied at the bottom, both providing twenty weeks of paid leave, while Bulgaria takes the top spot, allowing just under fifty-nine weeks of paid leave.[11] Missing from this list is the United States, where there is no federal program requiring paid leave.[12]

The United States’ current program is found in the Family and Medical Leave Act of 1993 (FMLA) and entitles only certain people to twelve weeks of unpaid leave.[13] To qualify a person must work for a covered employer who has fifty or more employees, for at least twelve months, for at least 1,250 hours during those last twelve months, and take leave for one of the qualifying reasons set forth, such as child birth or adoption of a child.[14] Even if a person does meet all of these requirements, often people cannot afford to take leave because their family depends on this income.[15]

President Trump promised during his presidential campaign to create a paid family leave program to help new parents, and in the Budget of the U.S Government for Fiscal Year 2018, certain funds were allocated to achieve this objective.[16] The budget provides a proposal for six weeks of paid family leave, taken from unemployment insurance, “so all families can afford to … bond with a new child without worrying about paying their bills.”[17] The program will be administered by the states so each can be “most appropriate to the workforce and economy” of that given state.[18] Bills such as the Family and Medical Insurance Leave Act (FAMILY), which would allow all employees to receive partial pay during a twelve-week leave, have previously been proposed, but nothing yet has been able to garnish enough support to become law.[19] The time for change is now, and the United States should follow the lead of New Zealand and several other countries and make family leave a priority for its hard working citizens.

[1] Charlotte Graham-McLay, New Zealand’s Leader, Jacinda Arden, Says She Is Pregnant, N.Y. Times (Jan. 18, 2018), https://www.nytimes.com/2018/01/18/world/new-zealand-prime-minister-pregnant.html.

[2] Id.

[3] Id.

[4] Arden ‘can do both’-Jenny Shipley, Radio N.Z. (Jan. 19, 2018), http://www.radionz.co.nz/news/ political/348452/ardern-can-do-both-jenny-shipley.

[5] Graham-McLay, supra note 2.

[6] Id.

[7] Kelly Buchanan, New Zealand: Paid Parental Leave to Be Extended to 26 Weeks by 2020, Library of Congress (Dec. 5, 2017), http://www.loc.gov/law/foreign-news/article/new-zealand-paid-parental-leave-to-be-extended-to-26-weeks-by-2020/.

[8] Id.

[9] Id.

[10] Michelle Toh, These countries offer the most generous maternity leave, Cnn Money (Jan. 19, 2018), http://money.cnn.com/2018/01/19/news/economy/countries-most-maternity-leave/index.html.

[11] Id.

[12] Gretchen Livingston, Among 41 nations, U.S. is the outlier when it comes to paid parental leave, Pew Research Center (Sept. 26, 2016), http://www.pewresearch.org/fact-tank/2016/09/26/u-s-lacks-mandated-paid-parental-leave/.

[13] Family and Medical Leave Act of 1993, 29 U.S.C. §§2601-2654 (1993).

[14] 29 U.S.C. §2611(2)-(4)(1993).

[15] Amber Lapp, When Mothers Can’t Afford Unpaid Leave, Institute for Family Studies Blog, (Dec. 29, 2016), https://ifstudies.org/blog/when-mothers-cant-afford-unpaid-leave

[16] Office of Mgmt. & Budget, A New Foundation for American Greatness (2018), https://www.whitehouse.gov/wp-content/uploads/2017/11/budget.pdf.

[17] Id.

[18] Id.

[19] FAMILY Act, S.337, 115th Cong. (2018).

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