Insights in Labor Arbitration…From Kyrie Irving?

William Sherman

On October 27^th, 2022, Kyrie Irving the star point guard for the Brooklyn Nets posted an Amazon link to an antisemitic movie to his Twitter and Instagram accounts.^[1]  Irving was strongly condemned for the offensive post, and on November 3^rd, following a maligned press conference was suspended by the Brooklyn Nets “for at least 5 games”.^[2] The punishment also included that the suspension would continue until Irving satisfied a series of objective remedial measures that addressed his conduct.^[3]  These six requirements included; that Irving must apologize, make a $500,000 donation to anti hate causes, complete sensitivity training, complete anti-semetism training, meet with Anti-Defamation League (ADL) and Jewish leaders, and meet with team ownership to demonstrate understanding.^[4]

            The reaction from the National Basketball Players Association (NBPA), the players certified union, has been one of concern.^[5]  Jaylen Brown, current Celtics forward and NBPA vice president, noted that the concern was over the lack of guidelines in place in the current collective bargaining agreement for player discipline.^[6] Currently, under the NBA collective bargaining agreement, discipline is handled with the discretion of the league regarding matters such as criminal conviction, substance abuse, and firearms.^[7] However, the CBA is notably lacking in regards to employee/player discipline in specific matters of discrimination related to misconduct.^[8]  Rather, the NBA reserves the right to enact discipline if a player engages in acts prejudicial to or against the best interest of basketball. ^[9]

            As the union is likely to appeal in arbitration, the issue will be whether the NBA excessively punished Irving pursuant to the CBA and National Labor Relations Act (NLRA).^[10] As we saw in the “Deflate-gate” case, suspensions upheld in arbitration under a CBA are valid so long as they “draw from the essence of the contract” and was not “an arbitrators’ own brand of industrial justice”.^[11] As stated above, the NBA has discretion to discipline for acts prejudicial to basketball. However, not all is lost for Irving, as the National Labor Relations Bureau (NLRB) ruled in the Care Onedecision.^[12] In that case the NLRB found that employers can exercise discretion in employee discipline so long as the action taken “is similar in kind and degree to what the employer did in the past within the structure of established policy or practice”.^[13]  This means that the league’s punishment may be evaluated in relation to the punishments handed out in other cases. 

            For examples of similar incidents, in 2021, Miami Heat center Meyers Leonard was suspended for a week and fined $50,000 for use of anti-semetic slur.^[14]  Furthermore, in September 2022, Minnesota guard Anthony Edwards was fined $40,000 for use of a homophobic slur.^[15]  These prior suspensions and fines become important in the labor arbitration context when evaluating whether the punishment given to Irving was with “just cause”.^[16]  In arbitration, “just cause” is the principle that decisions relating to discipline or discharge of employees must be made with a “just” reason.^[17]  While there is no bright line rule for evaluating “just cause”, arbitrators most commonly use a 7-factor test in making the determination.^[18]  For this situation, the factor of equal treatment would be the area most in issue as reflected in the comments by NBPA members.  

In this context equal treatment means that employers cannot implement considerably harsher discipline on one employee compared to another who committed the same or substantially similar offense.^[19]  As shown above, the league has implemented a punishment that required more steps and a much more substantial fine on Irving than was given to Leonard or Edwards.^[20]

While this scenario plays out, there are important lessons that can be gleaned. First, the NBPA, can test the current iteration of the CBA for protection from disparate punishment.  With the Current CBA set to expire in 2023, this could prove to be an area of contention in future negotiations as the players seek a level system of discipline.^[21]  Furthermore, this serves as a chance to gain insight in employee/employer discipline disputes relating to social media. Regardless, the ensuing arbitration could lead to new changes in the CBA and the business of basketball as a whole. 

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^[1] Brian Lewis & Brian Wacker, Kyrie Irving Raises Eyebrows with Tweet to Movie Filled with Anti-Semitic Disinformation, N.Y. Post (Oct. 28, 2022, 8:36 PM), https://nypost.com/2022/10/28/kyrie-irving-raises-eyebrows-with-tweet-to-movie-filled-with-anti-semitic-disinformation/.

^[2] Jasmyn Wimbish, Net Give Kyrie Irving Six Requirements to Fulfill Before He Can Return from Suspension, Per Report, CBS Sports (Nov. 7, 2022, 4:26 PM), https://www.cbssports.com/nba/news/nets-give-kyrie-irving-six-requirements-to-fulfill-before-he-can-return-from-suspension-per-report/

^[3] Id.

^[4] Id.

^[5] Paul Rudder, The NBAPA Isn’t On Board with the Specifics of Kyrie Irving’s Punishment, but What Did They Have to Say?, Diario AS (Nov. 8, 2022, 2:48 PM), https://en.as.com/nba/the-nbapa-isnt-on-board-with-the-specifics-of-kyrie-irvings-punishment-but-what-did-they-have-to-say-n/?omnil=resrelrecomv.   

^[6] Id.

^[7] See Collective Bargaining Agreement, NBA Player’s Association (Jan. 19, 2017) https://www.nbpa.com/cba. 

^[8] See Id.

^[9] Id. at A-24.

^[10] See Rudder, supra note 5.

^[11] Natl. Football League Mgt. Council v. Natl. Football League Players Ass’n, 820 F.3d 527 (2d Cir. 2016).

^[12] 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (June 23, 2020).

^[13] Id.

^[14] Malika Andrews, Miami Heat’s Meyers Leonard Fined $50,000, Suspended for Week for Using Anti-Semitic Slur, ESPN (Mar. 11, 2021), https://www.espn.com/nba/story/_/id/31044935/miami-heat-meyers-leonard-fined-50000-suspended-week-using-anti-semitic-slur

^[15] Jamal Collier, NBA Fines Minnesota Timberwolves Star Anthony Edwards $40K for Anti-Gay Comments on Social Media, ESPN (Sep. 20, 2022), https://www.espn.com/nba/story/_/id/34631645/nba-fines-minnesota-timberwolves-star-anthony-edwards-40k-anti-gay-comments-social-media.

^[16] Alyson Raphael, Arbitrating “Just Cause” for Employee Discipline and Discharge in the Era of Covid-19, 34 Geo. J. Legal Ethics 1240 (2022). 

^[17] The Seven Tests of Just Cause, United Electrical, Radio and Machine Workers of America (Last accessed Nov. 10, 2022), https://www.ueunion.org/stwd_jstcause.html

^[18] Id.

^[19] Id.

^[20] See Wimbish, supra note 2.

^[21] Adrian Wojnarowski, NBA Pursuing Upper Spending Limit in New Agreement with NBPA, ESPN (Oct. 28, 2022), https://www.espn.com/nba/story/_/id/34896826/sources-nba-pursuing-upper-spending-limit-new-agreement-nbpa

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Employers Be Warned: NLRB General Counsel Proposes Limitations on Electronic Monitoring of Workers

By: Gillian Joyce

Telecommuting, also known as remote employment, is commonplace in today’s post-pandemic world.^[1] The U.S. Census Bureau released a survey showing that 27.6 million people were working from home in 2021, tripling from 2019.^[2]  As a result, employers have resorted to electronic monitoring to track employees’ activities.^[3]  Studies show that approximately 80 percent of large corporations monitor their workers internet, phone, and email usage.^[4]

Employers use various technologies to track productivity, including keyloggers, screenshot software, webcam photos, or audio recordings.^[5]  Previously, employers could adopt any technological changes to monitor the activities of their employees, and they often did not need to inform their workers or obtain their consent.^[6]  Employees only redress was to file an unfair labor violation charge, which was often dismissed due to a demanding burden that required employees to produce substantial evidence showing the actual violation.^[7]  

Electronic monitoring is not always limited to the workday, and some employers continue to track their workers locations and communications through installed apps or wearable devices.^[8]  Employers are even able to analyze, sell or share this data due advances in artificial intelligence.^[9] However, law makers are rightly becoming increasingly skeptic to these practices.^[10]

It is argued that electronic monitoring may violate Section 7 of the National Labor Relations Act (hereinafter “NLRA”).^[11]   Constant surveillance substantially negates an employee’s ability to “engage in protected activity keep that activity confidential from their employer”.^[12]  As a result, the National Labor Relations Board (hereinafter “NLRB”) General Counsel, Jennifer Abruzzo, released a memo urging the NLRB to protect employees “to the greatest extent possible, from intrusive or abusive electronic monitoring…that would have a tendency to interfere with [NLRA] Section 7 rights”.^[13]  Abruzzo proposes a new legal framework to adapt the law to reflect the proliferation of remote work.^[14]  

Abruzzo proposes a balancing test to determine the validity of employee monitoring.^[15]  Under that test, employer’s interests, and the extent to which they have a “legitimate need” to monitor, will be weighed against the employee’s right to engage in concerted activity under Section 7.^[16]  Employers will have to show their “legitimate business need” and that it “cannot be met through means less damaging to employee rights”.^[17] The NLRB “has long held that absent proper justification, the photographing of employees engaged in protected concerted activities violates the [NLRA] because it has a tendency to intimidate”.^[18]  However, If the employer prevails on this balancing test, the Board is urged to “require the employer to disclose to employees the technologies it uses to monitor, it’s reasons for doing so, and how it is using the information it obtains”^[19]

Abruzzo states her commitment to an “interagency approach” that will utilize various federal government agencies to help prevent employers from violating federal law.^[20]  Agencies such as the “Federal Trade Commission, the Consumer Financial Protection Bureau, Department of Justice, Equal Employment Opportunity Commission, and the Department of Labor” are working to prevent a range of harms employers inflict on workers through the use of these technologies.^[21]

The proposal signifies a first step to provide necessary protections for remote workers, and it emphasized the NLRB’s responsibility “to adapt the [NLRA] to changing patterns of industrial life”.^[22]  If Abruzzo’s proposals are adopted, employers’ surveillance practices will be heavily restricted and scrutinized.  As this proposal will likely become “Board law”^[23], employers are encouraged to evaluate their use of these technologies and resist from cyberstalking their employees’ activities.^[24]  Additionally, employers should become familiar with the federal Electronic Communications Privacy Act and the laws of the states, districts, and territories where they employ workers and ensure they are in compliance.^[25]  If employers are utilizing electronic monitoring and they do not meet the legitimate business reason to do so, employers will face the threat of NLRB charges for violations of an employee’s right to concerted activities.^[26]  

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^[1] See Lisa Feldman, NLRB General Counsel Issues Memo on Electronic Monitoring, Artificial Intelligence and Employee’s Section 7 Rights, JD Supra (Nov. 10, 2022), https://www.jdsupra.com/legalnews/nlrb-general-counsel-issues-memo-on-7110228/.

^[2] Press Release, The Number of People Primarily Working from Home Tripled Between 2019 and 2021, U.S. Census Bureau (Sept 15, 2022) (on file at https://www.census.gov/newsroom/press-releases/2022/people-working-from-home.html).

^[3] See Feldman, supra note 1; see also Working from Home and Electronic Monitoring Laws, Ottinger Employment Lawyers, (Apr. 20, 2022), https://www.ottingerlaw.com/blog/electronic-monitoring-laws-working-from-home/.

^[4] See Hannah George, How much employee monitoring is too much?, American Bar Association (Jan. 2018), https://www.americanbar.org/news/abanews/publications/youraba/2018/january-2018/how-much-employee-monitoring-is-too-much-/.

^[5] See Robert Lafolla, Electronic Worker Tracking in NLRB Top Lawyer’s Crosshairs (1), Bloomberg Law, https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X7NVLKFC000000?bna_news_filter=daily-labor-report#jcite (last updated Oct. 31, 2022). 

^[6]See NLRB Proposes Sweeping Changes Impacting Employer Use of Technology to Manage and Monitor Employees, SESCO Management Consultants (Nov. 3 2022), https://www.sescomgt.com/news/detail/nlrb-proposes-sweeping-changes-impacting-employer-use-of-technology-to-manage-and-monitor-employees/202211031236195595.

^[7] See Feldman, supra note 1.

^[8] See Memorandum from Jennifer A. Abruzzo, N.L.R.B General Counsel, on Electronic Monitoring and Algorithmic Management of Employees Inferring with the Exercise of Section 7 Rights, N.L.R.B (Oct. 31, 2022) (on file at https://apps.nlrb.gov/link/document.aspx/09031d45838de7e0).

^[9] See id. 

^[10] See id. 

^[11] See NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices, National Labor Relations Board, News & Publications (Oct. 31, 2022), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-issues-memo-on-unlawful-electronic-surveillance-and

^[12] See Memorandum from Jennifer A. Abruzzo, N.L.R.B General Counsel, on Electronic Monitoring and Algorithmic Management of Employees Inferring with the Exercise of Section 7 Rights, N.L.R.B (Oct. 31, 2022) (on file at https://apps.nlrb.gov/link/document.aspx/09031d45838de7e0). 

^[13] See id. 

^[14] See Lafolla, supra note 4. 

^[15] See Memorandum from Jennifer A. Abruzzo, N.L.R.B General Counsel, on Electronic Monitoring and Algorithmic Management of Employees Inferring with the Exercise of Section 7 Rights, N.L.R.B (Oct. 31, 2022) (on file at https://apps.nlrb.gov/link/document.aspx/09031d45838de7e0).

^[16] See id. 

^[17]See id.

^[18] F.W. Woolworth Co., 310 NLRB 1197, 1197 (1993)

^[19] See id.; see also Feldman, supra note 1. 

^[20] See Memorandum from Jennifer A. Abruzzo, N.L.R.B General Counsel, on Electronic Monitoring and Algorithmic Management of Employees Inferring with the Exercise of Section 7 Rights, N.L.R.B (Oct. 31, 2022) (on file at https://apps.nlrb.gov/link/document.aspx/09031d45838de7e0).

^[21] See id. 

^[22] NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975).

^[23] David P. Phippen, NLRB General Counsel Proposes Crackdown on Employers who Monitor Employees, Lexology (Nov. 7, 2022), https://www.lexology.com/library/detail.aspx?g=f88e1300-e817-4ec5-b6e9-af21b7ef31ce

^[24] See Feldman, supra note 1.

^[25] See Phippen, supra note 21. 

^[26] Michal J. More & Anna Pugh, NLRB General Counsel Issues Memorandum on Electronic Monitoring of Employees, Steptoe & Johnson PLLC(Nov. 11, 2022), https://www.steptoe-johnson.com/content/nlrb-general-counsel-issues-memorandum-electronic-monitoring-employees.

Breathe Easy: OSHA Can Regulate the Federally Illegal Cannabis Industry.

By: Brian Joseph

On January 7, 2022, an employee working at a marijuana facility died of asthma from being exposed to “occupational quantities of whole and ground cannabis,’ according to a hazard letter that was released by the Occupational Safety and Health Administration (“OSHA”).^[1] Lorna McMurrey was 27 years old and had been working at a cultivation factory for the company Truelieve Inc. when she died from the asthma related complications.^[2]

OSHA, a federal agency that is tasked with “assuring safe and healthful working conditions,^[3]” amongst other functions, has been navigating the regulation of the cannabis industry even though marijuana is still considered federally illegal.^[4]This uncharted function of OSHA ensures that the growing marijuana industry continues to be compliant with safety standards as the push towards national legalization continues.^[5]

Upon investigation, OSHA released and sent to Truelieve a hazard alert letter which outlined the nature of the employee’s death, as well as a list of several methods that the company should implement to protect employees from the hazards of the cannabis exposure that occur during the production and grinding process.^[6] It is worth noting that the employee safety regulations outlined in the letter, as well as the citation issued to Truelieve, are focused on the impacts of hazardous chemicals present in the cannabis facilities more so than the cannabis itself.^[7] This is a primary function of OSHA within many industries.^[8]

Ultimately, Trulieve was fined a total of $35,219, with OSHA citing violations that included not providing workers with the training and information related to the hazards of working with ground cannabis.^[9] The company has continued to cooperate with OSHA and the investigation that followed, implementing steps such as a medical examination program for their employees, improvement of exposure prevention, as well as training options for those employees who have allergy concerns.^[10] During the investigation it is important to acknowledge that federal investigators “noted that management of occupational allergies is difficult, as cessation, rather than reduction of exposure is often necessary.”^[11]

As the marijuana and cannabis industry continue to grow, the hope is that companies that manufacture, distribute, and sell marijuana can adapt to the standards set forth by OSHA to maintain profitability.^[12]  The responsibilities of companies and employers include addressing the air quality issues that may arise from farming and processing^[13] to avoid the high costs of fines that can accompany a violation. Ultimately the growth of the industry “emphasizes the federal government’s desire to strike a balance between protecting the rights of cannabis employees and regulating an illegal industry.”^[14]

Ultimately, the positive effects from the growth of the marijuana industry must be met with applicable safety standards to ensure that workers are protected.^[15] Some may argue that the difficulty in regulating an industry rest with the “unique situation [of the cannabis industry, which] has left one federal agency to regulate an industry that another is tasked with eliminating.”^[16] However, by addressing the safety concerns and worker safety overall, cannabis companies will be able to improve their bottom line^[17] which will lead to continued growth in a promising sector.

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^[1] See Bruce Rolfsen, Cannabis Worker’s Death Triggers Closer OSHA Industry Scrutiny, Bloomberg Law (Nov. 2, 2022 5:30 AM), https://news.bloomberglaw.com/daily-labor-report/cannabis-workers-death-triggers-closer-osha-industry-scrutiny.

^[2] See Katie Comero, Health Risks Linked to Working In The Cannabis Industry Are Largely Unknown, But A 27-Year-Old’s Death Reveals The Potential Dangers, BuzzFeed (Oct. 27, 2022), https://www.buzzfeednews.com/article/katiecamero/cannabis-industry-worker-health-risks.

^[3] 91 P.L. 596, 84 Stat. 1590.

^[4] See Emma Bryant, What to Know About OSHA Regulations in the Cannabis Industry, Worksite Medical (Aug. 23, 2021), https://www.worksitemed.com/osha-regulations-in-the-cannabis-industry/.

^[5] Id. 

^[6] See supra note 1 (clarifying that the death was related to occupational allergies which can include upper airway congestion, skin irritation, and asthma related issues).

^[7] See supra note 1.

^[8] See generally OSHA, Hazard Communication Standard: Safety Data Sheets, OSHA (Feb. 2012), https://www.osha.gov/sites/default/files/publications/OsHA3514.pdf (outlining chemical safety standard requirements and detailing employer responsibilities).

^[9] See Kathy Curran, Ground Cannabis Caused Woman’s Asthma Death at Holyoke Marijuana Facility, OSHA Finds, NBC (Oct. 5, 2022 4:51 PM), https://www.nbcboston.com/news/local/occupational-hazard-osha-believes-womans-asthma-death-was-caused-by-ground-cannabis/2854695/.

^[10] See id.

^[11] Id.

^[12] See Steve Owens, Top 5 OSHA Infractions for Cannabis Businesses, Cannabis Business Executive (Sept. 29, 2016), https://www.cannabisbusinessexecutive.com/2016/09/top-5-osha-infractions-for-cannabis-businesses/.

^[13] See Jazmyn Stover, et al., Are Employee Rules Getting Hazier, 49 The Brief 24, 29 (2020).

^[14] Taylor G. Sachs, The Wellness Approach: Weeding Out Unfair Labor Practices in The Cannabis Industry, 43 Fla. St. U.L. Rev. 287, 309 (2015).

^[15] Id.

^[16] Id. at 288.

^[17] See Cannabis Workers Coalition, Top 5 OSHA Infractions for Cannabis Businesses, Cannabis  Coalition Workers (Apr. 22, 2022), https://www.cannabisworkerscoalition.org/2022/04/22/top-5-osha-infractions-for-cannabis-businesses/.

“GIG”antic changes on the horizon? The potential tax and regulatory shifts for workers in the “gig economy.”

By: Veronica Ruiz

“Some people want it to happen, some wish it would happen, others make it happen.” ^[1] Living in 2022 is not cheap.  New York City is known as the city that never sleeps, and with inflation the highest it has been since 1981, New Yorkers have almost no choice but to stay awake.^[2]  How do lower income individuals make ends meet in an environment where one job is not sustainable? They “make it happen,” and work two jobs.^[3]  The share of Americans working more than one job has grown over the past two decades, with an estimated 7.8% U.S workers having more than one job, up from 6.8% in 1996.^[4] For those who do, the earnings from those second jobs make up, on average, 28% of their total earnings, thereby making it likely that such individuals are substantially relying on that pay.^[5]

The gig economy “is the popular name given to the new world of work: flexible jobs… that unleash innovation and promote economic growth.”^[6] The expansion of the “gig economy,” is largely a result of technological advances, allowing potential employers, employees, consumers, and sellers connect on popular platforms such as Uber, Lyft and Airbnb.^[7]  

With workers splitting their time between two, or possibly more jobs, employees may find themselves part-time in one, if not both jobs.  Therefore, while the employee may be getting two sources of income, (and consequently taxed on both) they may be unable to obtain benefits^[8] (ie health insurance and/or paid time off).  But “the folly of one man is the fortune of another.”^[9] What makes the gig economy so attractive to consumers is the relatively inexpensive services that one can enjoy largely because of saved overhead costs, such as the benefits that gig workers lack.^[10]  

Up until this point, it was largely the cost savings rather than the “gig worker” that was a priority in the eyes of the public.  There is a raging debate if a gig worker should be considered an employee or an independent contractor for taxation purposes.  The current law, per the Trump Administration, emphasizes two factors: the degree of control the employer has over the work (such as the employee’s schedule) and the worker’s opportunity for profit or loss (for example can the worker decline certain jobs.)^[11] The U.S. Department of Labor recently issued a proposed rule that would allow employee classification to be broader, using a six factor economic realities test consisting of: opportunity for profits and loss, investment by the worker and employer, degree of permanence in the relationship, nature and degree of control, extent the work is integral to the employer’s business and degree of skill the worker exhibits.^[12]  

Assuming the worker classification doesn’t change, the taxation of the gig worker still should.  Currently, gig workers receive a 1099 and must file a schedule C in addition to their income tax returns.^[13]  This taxing regime puts an unnecessary burden on the worker, who is then responsible for their own withholding, putting them in the same position as a wealthy (and/or) well established businessman, without the experience or wherewithal to properly comply.^[14]  Such responsibilities include budgeting for self-employment and income taxes, as well as make quarterly estimate payments and keep receipts to record expenses.^[15]  In order to solve the immediate issue of potential under reporting on the part of the worker, the employer should contribute to making compliance easier.  This could involve a potential “non-employer” withholding, which would allow the independent contractor to elect to have their compensation withheld, consistent with potential tax liabilities.^[16] Additionally, a compulsory expense tracker, at the insistence of the employer could allow a worker to accurately reflect his business expense deductions thereby likely increasing business expense deductions and maximizing his bottom-line income.^[17]

It is because of the sheer volume increase, and importance of these gig workers in the modern economy, that policies should be enacted to both afford more protections and “employee benefits,” as well as make it lessen the burden of tax compliance and savings.  Therefore, it is time for a “GIG”antic change.  

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^[1] The Greatest Michael Jordan Quotes, The Book of Man, https://thebookofman.com/body/sport/michael-jordan/ (last visited Nov. 5, 2022). 

^[2] See Consumer prices up 9.1 percent over the year ended June 2022, largest increase in 40 years, U.S. Bureau of Lab. Stat., (Jul. 18, 2022), https://www.bls.gov/opub/ted/2022/consumer-prices-up-9-1-percent-over-the-year-ended-june-2022-largest-increase-in-40-years.htm.

^[3] Jonnelle Marte & Lucia Mutikani, Share of U.S. workers holding multiple jobs is rising, new Census report shows, Reuters.com, (Feb. 17, 2021), https://www.reuters.com/article/us-usa-economy-multiple-jobs/share-of-u-s-workers-holding-multiple-jobs-is-rising-new-census-report-shows-idUSKBN2AH2PI. 

^[4] Id.

^[5] See id.

^[6]Emily C. Atmore, Killing the Goose That Laid the Golden Egg: Outdated Employment Laws Are Destroying the Gig Economy, 102 Minn. L. Rev. 887, 888 (2017).

^[7]See id.

^[8] Amy Culver, Part-time vs. Full-time: Everything You Need to Know, Snagajob, (Apr. 18, 2022), https://www.snagajob.com/blog/post/part-time-hours-vs-full-time-hours.

^[9] Francis Bacon, 3 Essays, Civil and Moral, (Charles W. Eliot ed., P.F. Collier & Son 1909) (1597).

^[10]Hasmik Petrosian, Uber and Beyond: A System for Regulating Gig-businesses without Destroying Them, 41 T. Jefferson L. Rev. 87, 97 (2018). 

^[11] Jamie Herzlich, The gig is up? New federal rule may turn ‘contractors’ into employees, Newsday (Nov. 3, 2022, 9:09 PM), https://www.newsday.com/business/columnists/jamie-herzlich/gig-workers-dol-rule-employees-independent-contractors-xtsevleo

^[12] See id.

^[13] Rebecca Lake, An Independent Contractor’s Guide to Taxes, smartasset (Jan. 5, 2022), https://smartasset.com/taxes/independent-contractor-taxes

^[14] See generally, Kathleen Delaney Thomas, TAXING THE GIG ECONOMY, 166 U. Pa. L. Rev. 1415 (2018).

^[15] See id.

^[16] See id.

^[17] Id.

Fourth and Long: Why NIL Can Only Go So Far Without Employee Classification for College Athletes

By: Adam Jones

Anybody even remotely familiar with college sports knows that the idea of “amateurism” simply does not co-exist with the world class athletes that compete across the country. Despite this, that very idea has been the source of contention between the NCAA and its players for years.^[1] But in 2021 the debate received a fresh take when the Supreme Court released its ruling in NCAA v. Alston,^[2] finding that the NCAA could no longer “limit education-related payments to student-athletes”.^[3] The court then deferred to state law to lay out how name, image, and likeness (“NIL”) laws would work in each, with legislation like California’s “Fair Pay for Play Act” becoming effective immediately after.^[4] That act served as the first legislation of its kind, its passing inspiring 29 other states to follow suit^[5] and serving as the first stepping stone of what will be years of litigation and development in the industry of college athletic compensation procedures.^[6] At the nexus of these debates will be whether college athletes are considered employees of their respective institutions moving forward, as NIL acts to date have not provided them such classification to this point.^[7] For decades athletes have advocated for their rights as the producers of an over $1 billion industry,^[8] and classifying them as employees will undoubtedly be a crucial step in seeing them receive the compensation and treatment as workers they deserve.^[9]

             In the 2021 case of Johnson v. NCAA,^[10] Trey Johnson, a former college football player, sued the NCAA alleging that he and other plaintiffs not named were “workers” of the university, and that their employment must therefore be subject to provisions of the Fair Labor Standards Act (“FLSA”).^[11] In denying the NCAA’s motion to dismiss, the Eastern District court of Pennsylvania found that (1) the association had not sufficiently disproved that the athletes were in fact employees of the university, and (2) that the athletes “plausibly alleged they were employees of the colleges and universities they attended”.^[12] The court relied primarily on the economic reality of the relationship, using the “primary-beneficiary test” to establish an employer-employee dynamic.^[13] That test, summarized succinctly, allows courts to determine whether an individual student or intern is, actually, an employee for purposes of FLSA application.^[14]  The test is comprised of seven factors, allowing a court to determine who is the “primary beneficiary” of a relationship for the purposes of compensation.^[15]

            It is exceptionally clear that their revenue generation for their individuals’ institutions and the NCAA outweighs their pre-NIL compensation of tuition, books, and housing,^[16]  and proper application of the primary-beneficiary test leads to the conclusion that employment does exist.^[17] While athletes’ new ability to make money off their own image and likeness is certainly an improvement from the old system, there is still plenty of work to be done. The NCAA has remained adamant that “pay-for-play” is still barred under the current bylaws.^[18] But, as alumni networks and collectives of each school’s fanbases work to circumnavigate this rule, schools with large fanbases have found loopholes to getting their top players paid by alumni donations and booster clubs, implicitly hurting smaller institutions who lack that level of funding.^[19] Because of the blatant discrepancies and in the interest of fairness for all athletes, it is time for the NCAA to come to grips with the reality that they must grant athletes the full rights and privileges of employees.^[20] This will allow for the NCAA to improve its currently negative perception in the public, give the athletes the same benefits of every other employee in America, and help level the playing field for smaller institutions to remain competitive.

---

^[1] See Robert Litan, The NCAA’s “Amateurism” Rules, MILKEN INSTITUTE review (Oct. 28, 2019), https://www.milkenreview.org/articles/the-ncaas-amateurism-rules.

^[2] See NCAA v. Alston, 141 S.Ct. 2141 (2021).

^[3] See The Athletic College Football Staff, What is NIL?: Everything you need to know about the NCAA and name, image and likeness, The Athletic, (May 10, 2022), https://theathletic.com/3301694/2022/05/10/nil-ncaa-definition/.

^[4] See id.

^[5] See Ezzat Nsouli & Andrew King, How US Federal and State Legislatures Have Addressed NIL, Squire Patton Boggs: Sports Shorts, (July 13, 2022), https://www.sports.legal/2022/07/how-us-federal-and-state-legislatures-have-addressed-nil/#:~:text=State%20Law%20Addressing%20NIL,name%2C%20image%2C%20and%20likeness.

^[6] See id.

^[7] See Kevin Brockway & Elton Hayes, Future of NIL could include college athletes as employees, News and Tribune, (July 2, 2022),https://www.newsandtribune.com/sports/future-of-nil-could-include-college-athletes-as-employees/article_63cdb918-f979-11ec-b9fa-af7433e375be.html.

^[8] See Rory Jones, NCAA generates record US$1.16bn revenue for 2021, SportsPro Media, (Feb. 3, 2022), https://www.sportspromedia.com/news/ncaa-finances-2021-revenue-march-madness-college-sports/#:~:text=The%20National%20Collegiate%20Athletic%20Association,US%24519%20million%20in%202020.

^[9] See Brockway & Hayes, supra note 7.

^[10] See Johnson v. NCAA, 556 F.Supp.3d 491 (E.D.Pa 2021).

^[11] See id.

^[12] Id.

^[13] See id.

^[14] See Dep. of Labor, Internship Programs Under the Fair Labor Standards Act (2018), https://www.dol.gov/agencies/whd/fact-sheets/71-flsa-internships#:~:text=Courts%20have%20used%20the%20%E2%80%9Cprimary,an%20employee%20under%20the%20FLSA.&text=In%20short%2C%20this%20test%20allows,primary%20beneficiary%E2%80%9D%20of%20the%20relationship.

^[15] See id.

^[16] See Brockway, supra note 5.

^[17] See id.

^[18] See The Athletic College Football Staff, supra note 2.

^[19] See Ross Dellenger, The NCAA Approval of NIL Guidelines Signals a Crackdown on Boosters Could Be Coming, Sports Illustrated (May 9, 2022), https://www.si.com/college/2022/05/09/ncaa-nil-guidelines-boosters-athlete-funds.

^[20] See id.

Where There’s Smoke, There’s Fire: How the JFK8 Amazon Fire Could Kindle Workers’ Lawsuits.

By: Rochelle Podolsky

On October 3, 2022, a trash compactor fire broke out at Amazon’s first unionized warehouse in America – “JFK8” in Staten Island.^[1] While day workers were safely sent home with pay, those who were scheduled for the night shift were required to work.^[2] Without any notification of the fire, night-shifters showed up and were sent directly to the break area.^[3] Walking through the doors, the workers were concerned about the strong smell of smoke and their inability to breathe because of it.^[4] After being denied the opportunity to go home with pay, “a small group of workers” did what they felt was necessary –a sit-down protest.^[5] Other workers decided to walk out.^[6]

            While the Fire Department did indeed declare the building as safe, videos posted online depicted smoke in the air.^[7] Employees stated that their health and safety concerns were not considered.^[8] Instead, Amazon just suspended them.^[9] As Amazon continues to investigate, the company claims to be unsure how long employees will remain suspended.^[10] As such, workers “intend to file unfair labor practice charges against Amazon with the National Labor Relations Board (“NLRB”).”^[11] The question is, how successful will workers be in filing charges against Amazon? 

            In 2020, Amazon faced a federal lawsuit from NLRB after an employee was fired when he led a “protest over safety concerns.”^[12] The federal lawsuit was sparked by an unfair labor practice suit filed by an employee in which Amazon claimed the employee was fired for “violating its policy against vulgar and harassing language,” and not for protesting.^[13] Nonetheless, the NLRB administrators argued the opposite – stating that Amazon rarely fires for poor language, and instead, asserting the employee was fired because of his protest against working conditions.^[14] The NLRB argued that they have a duty to protect the rights of Amazon workers.^[15] Therefore, the NLRB requested Amazon to post notices of workers’ rights in regards to working conditions.^[16] They also asked Amazon to inform workers’ about their right to organize and exercise their rights through protests.^[17] As a result of this lawsuit, Amazon assured their workers that they will no longer interfere in “conduct union activity inside warehouses” and also promised “to inform current and former employees of their labor rights.”^[18]

            While Amazon has not necessarily interfered, their workers continue to protest today around the United States. Workers state that the facilities are so unsafe that they “wear masks, not necessarily to protect themselves from any kind of virus or disease, but because there’s so much dust and small particulates.”^[19] Further, they protest against Amazon’s injury rates as they continue to rise, and against the dangerously high temperatures at the facilities that have caused workers to pass out.^[20] Workers also protest about their lack of opportunity to drink water during work hours, Amazon’s stripping of workers disability benefits, and the general danger of the working conditions.^[21] Workers are not asking for a sudden victory. Instead, they are simply asking for “safe and clean workplaces free of deadly viruses and toxic fumes.”^[22]

            In determining how likely workers are to succeed if they choose to file complaints against Amazon, we can look to the recent lawsuits outlined above, and balance that with both the positive and negative changes inside the facilities. Also, it is important to keep in mind that unsafe working conditions at Amazon have led to “34,000 Amazon worker injuries last year alone and four deaths within one month this past summer.”^[23] With all said, it is likely that workers can prevail on the incident that occurred on October 3, 2022 and seek justice for Amazon’s suspension due to their worker’s protest against unsafe conditions.  

---

^[1] Allen Smith, Fire at Amazon Warehouse Leads to Protest, Suspensions, SHRM (Oct. 7, 2022), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/amazon-warehouse-fire-protest-suspensions.aspx.

^[2] See id. 

^[3] Id.

^[4] Haleluya Hadero, Amazon Suspends at Least 50 Workers After Fire Protest, AMNY (Oct. 5, 2022), https://www.amny.com/news/amazon-suspends-50-workers-after-fire-protest.

^[5] Smith, supra note 1. 

^[6] See Hadero, supra note 4.

^[7] See Stef Manisero, Amazon Suspends Employees for Work Stop After Fire, Spectrum News NY 1 (Oct. 5, 2022), https://www.ny1.com/nyc/staten-island/news/2022/10/05/amazon-jfk8-staten-island-fire.

^[8] See id.

^[9] See id.

^[10] See Hadero, supra note 4.

^[11] Id.

^[12] M. Moon, US Labor Board Sues Amazon to Reinstate Fired Staten Island Worker, Engadget (Mar. 18, 2022), https://www.engadget.com/us-labor-board-sues-amazon-to-reinstate-fired-staten-island-worker-053013151.html.

^[13] Id.

^[14] See id.

^[15]See Anna Kramer, Federal Regulators are Suing Amazon for Violating Labor Laws, Protocol (Mar. 18, 2022), https://www.protocol.com/bulletins/amazon-sued-labor-law.

^[16] See id.

^[17] See id.

^[18] Ian Kullgren, Amazon Labor Board Settlement is ‘Crucial’ for Union Organizing, Bloomberg Law (Dec. 27, 2021), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report.

^[19] Nick Barrickman, Rising Protests Among Amazon Workers Throughout the United States, World Socialist Web Site (Oct. 12, 2022) (emphasis added), https://www.wsws.org/en/articles/2022/10/13/ykek-o13.html.

^[20] See id. 

^[21] Amanda Andrews, ‘No Justice, No work’: Amazon Workers Demand Safety and Fair Pay,” GPB (Oct. 20, 2022), https://www.gpb.org/news/2022/10/20/no-justice-no-work-amazon-workers-demand-safety-and-fair-pay.

^[22] Barrickman, supra note 19.

^[23] Laura Hautala, Amazon Deaths Under Investigation As Warehouse Conditions Draw Scrutiny, CNET (Sept. 2, 2022), https://www.cnet.com/tech/services-and-software/amazon-under-investigation-for-string-of-warehouse-deaths-as-scrutiny-grows.

Are you in it for the Long Haul? Long Term COVID -19 Employee Disability

By: Chava Cohen

Employers are excited to have many of their employers back at work.^[1] There are many employees who are returning following prolonged absences due to the pandemic.^[2]  However, there are many who were furloughed and or fired due to having long-term effects of COVID.^[3]  

In 2021, President Biden announced his plan whereby applying the federal disability discrimination law protections to individuals suffering from “long COVID.”^[4]  This act is an addition to the Americans with Disabilities Act (hereinafter “ADA”).^[5] While the ADA is universally accepted as a necessary addition to U.S. rights legislation, it poses a challenge for employers by prohibiting discrimination, while requiring them to provide reasonable accommodations.^[6]

Under the ADA, “disability” means, “an individual who has a physical or mental impairment that substantially limits one or more major life activities.”^[7]  Major life activities includes but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, standing, bending, reading, and concentrating.^[8]

According to the Centers for Disease Control and Prevention (CDC), “long COVID” applies to individuals who continue to experience lingering COVID symptoms, or who have new/recurring symptoms months after first being sick with the COVID-19 virus.^[9] The individuals are referred to as “long-haulers.”^[10]  The most common symptoms of long COVID, which tend to worsen with physical or mental activity, include: tiredness or fatigue; difficulty thinking/concentrating (i.e. “brain fog”); shortness of breath; headache; dizziness; heart palpitations; chest pain; cough; joint/muscle pain; depression or anxiety; fever; and/or loss of taste or smell. Some individuals also experience damage to their heart, lungs, kidneys, and brain. 

As the ADA’s coverage has expanded, the percentage of alleged disability discrimination filed with the Equal Employment Opportunity Commission (hereinafter “EEOC”) has increased.^[11] These filings make up 36.1 % of EEOC charges filed in 2020.^[12]  In the past two years alone, COVID -19 cases filed based on employment discrimination has reached an all-time high of 6,503 cases; most of these cases were filed in New York, New Jersey, and California.^[13]

One of the first of these cases involved the former general counsel for New York plastic surgery, Scott Edelman, who sued Aristocrat Plastic Surgery PC (hereinafter “APS”), which operates two plastic surgery practices in midtown Manhattan and Long Island in federal court.^[14]  Edelman, who had been APS’ vice president of business affairs and general counsel since 2013, said he told his employer in March 2020 that he was being hospitalized and put on supplemental oxygen.^[15] A few days later, while lying in a hospital bed, barely able to breathe, and afraid for his life, Edelman received a text from his employer that he was “temporarily laying him off.” 

When Edelman was discharged from the hospital on April 6, 2020, he had developed long-haul COVID -19 and continued to suffer the effects of the illness. Rather than offering him and accommodations, Edelman alleged his boss called him on May 2020 and told him that he would not be rehired when APS brought back the rest of its furloughed staff.^[16]  He also claimed that APS refused to honor their contract by giving him money for commissions they were wrongfully withholding from him.^[17]  This case was settled. But it raises a larger issue of the many more employees who are stuck in this similar situation.^[18]

In June 2022, the Census Bureau added four questions about long COVID to its Household Pulse Survey (hereinafter HPS), providing researchers a better understanding of how prevalent the virus still is.^[19]  The results showed around 16 million working- age Americans have long COVID today.^[20] Of those, 2 to 4 million are out of work due to Long COVID.^[21]

Long COVID has been described as our “next national health disaster” and the “pandemic after the pandemic”.^[22]  We still do not know how many people are affected, how long it will last for those affected, and how it could change employment and health coverage landscapes.^[23] One thing is for sure, employers will likely face numerous COVID-19 related lawsuits.^[24]  The easiest and most efficient way to make reasonable accommodations is by allowing and encouraging a remote work-force.^[25]  Long- term COVID-19 begs the larger question of whether future diseases/pandemics will further elasticize the ADA framework.^[26]

---

^[1]  In it for the Long Haul? White House Seeks to Provide ADA Coverage to Those with “Long COVID”, Fisher Phillips (July 28, 2021), https://www.fisherphillips.com/news-insights/in-it-for-the-long-haul-white-house-seeks-to-provide-ada-coverage-to-those-with-long-covid.html. 

^[2]   Id.

^[3]  Supra note 14. 

^[4]  Fisher Phillips, supra note 1; see also Press Release, White House, Fact Sheet: Biden- Harris Administration Marks Anniversary of Americans with Disabilities Act and Announces Resources to Support Individuals with Long COVID (July 26, 2021) (on file with author). 

^[5]  Fisher Phillips, supra note 1.

^[6]  Fisher Phillips, supra note 1. 

^[7] Id.  See also Americans with Disabilities Act (ADA) Tit. II of 1990. 

^[8]  Id. 

^[9]  Fisher Phillips, supra note 1 (defining CDC guidelines on long COVID); see also Ctr.  for Disease Control & Prevention: Long COVID (Sept. 1, 2022), https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects/index.html; see also U.S. Dep’t of Health & Hum. Serv: Civ. Rts. & Covid-19 (July 29, 2022), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html.

^[10]  Id. 

^[11]  Id. see also Fisher Phillips, supra note 9 (defining symptoms of long COVID). 

^[12] Fisher Phillips, supra note 1. 

^[13] Fisher Phillips, COVID-19 Employment litigation Tracker And Insights, https://www.fisherphillips.com/innovations-center/covid-19-employment-litigation-tracker-and-insights/index.html (last visited Oct. 30, 2022). 

^[14] Edelman v. Aristocrat Plastic Surgery, P.C., No. 2:21-cv-03109 (E.D. N.Y. filed June 2, 2021). 

^[15] Id. See also Rachel Scharf, NY Att’y Says He Was Fired for Long- Haul COVID -19, Law360 (June 2, 2021, 6:05 PM EDT), https://www.law360.com/articles/1390383. 

^[16] Scharf, supra note 15. 

^[17] Id. 

^[18] Id. 

^[19]   Katie Bach, New Data Shows Long COVID is Keeping as Many as 4 Million People Out of Work, Brookings (Aug. 24, 2022) https://www.brookings.edu/research/new-data-shows-long-covid-is-keeping-as-many-as-4-million-people-out-of-work/. 

^[20]   Id. 

^[21]  Id. 

^[22]  Alice Burns, What are the Implications of Long COVID for Employment and Health Coverage?, KFF (Aug. 1, 2022), https://www.kff.org/policy-watch/what-are-the-implications-of-long-covid-for-employment-and-health-coverage/. 

^[23] Id. 

^[24]  Fisher Phillips, supra note 13.

^[25] Francesca Stead Sellers, ‘We are in Trouble”: Study Raises Alarm About Impacts of Long COVID, Wash. Post, (Oct. 13, 2022), https://www.washingtonpost.com/health/2022/10/12/long-covid-study-scotland/. 

^[26] See generally Fisher Phillips, supra note 1 (discussing historical expansion of ADA).

Are Caddies Independent Contractors or Employees?

By Kevin Gomez

Caddies are often erroneously categorized as independent contractors.^[1] Caddies have their schedules set by their country clubs, required to request time off, and are subject to disciplinary measures by the club.^[2] These are all characteristics of an employee-employer relationship, not an independent contractor.^[3] Clubs avoid labeling caddies as “employees” by not paying their wages.^[4] Instead, guest or members of golf clubs pay caddie wages. ^[5] On average, a caddie can make “$80 to $100 per bag carried, usually one or two bags each round, and caddies are expected to act as guides for players and help maintain the grounds.”^[6] It is not uncommon for the club to require caddies to complete task unrelated to caddying.^[7] According to a lawsuit filed against the nearby Garden City Men’s Club, “The club treats caddies like employees—requiring them to be there at certain hours, to wear a hat with the club’s logo, to work on projects other than caddying—but pays them as independent contractors based only on the hours they spend carrying golfers’ bags.” ^[8] While caddies are waiting for their loops, their boss could ask them to “work on other projects” such as moving carts or picking up range balls. ^[9] None of those two jobs are within the job description of a caddie.^[10]

            The PGA Tour requires caddies to wear bibs with certain logos on it. ^[11] The PGA knows that fans can ignore advertisement around the course or on TV.^[12] By contract, a golf fan cannot ignore an in-action endorsement from a caddy or golfer.^[13] The tournaments are broadcasted across multiple networks and the advertisement on caddie bibs usually spell out the name of the tournament sponsor. ^[14] Unfortunately for the caddies, they are forced to wear the bibs while they do not profit share in the “media rights.” ^[15]

            Since caddies are not considered employees, minimum wage and overtime laws do not apply to them.^[16] To determine whether one is an employee or independent contractor, one must examine the “degree of control” caddies have over their own work. ^[17] At most clubs “the caddy master, who is a club employee, is responsible for assigning caddies to golfers. Caddie masters often tell the caddies by when they need to be at the club and when the caddies can go home. The caddy master also rewards caddies that show up early and do not work at other clubs.^[18] The typical reward is assigning the favored caddies the best paying golfers.^[19] Conversely if a caddie is not showing up on time the caddy master can punish them by not giving them work that day. ^[20] In examining whether someone is an employee or an independent contractor, “a key factor is the relationship between what the person is offering and what the business offers.”^[21] The closer the relationship is, the more likely it is an employee relationship.^[22] Most clubs require players to take caddies, suggesting there is a strong employee like relationship.

            At most clubs caddies have virtually zero employment rights and are not entitled to health insurance, 401ks, or parental leave.^[23] Country clubs need caddies to help players enrich their golfing experiencing. Caddies such be treated and paid as the employees that they are. 

---

^[1] See Atkinson, Andelson, Loya, Ruud & Romo, Are you Properly Classifying your Caddie? Avoid Pitfalls in Caddie Misclassification, Lexology(Oct. 22,2021, 10:19 PM), https://www.lexology.com/library/detail.aspx?g=63d1c976-2e52-4a7f-b9fa-091caa3dc5e7.

^[2] Joyce Hanson, Caddie Wage Suit Against Fla. Golf Course Dismissed, Law360 Employment Authority (Oct. 20, 2022, 10:05 PM), https://www.law360.com/employment-authority/articles/818090/caddie-wage-suit-against-fla-golf-course-dismissed.

^[3] Id.

^[4] Id.

^[5] Id.

^[6] Id. 

^[7] Peter Finch, As the caddie-club relationship draws new scrutiny, some creative solutions surface, GolfDigest (Oct. 22, 2022) https://www.golfdigest.com/story/as-the-caddie-club-relationship-draws-new-scrutiny-some-creative-solutions-surface.

^[8] Id.

^[9] Id.

^[10] Id.

^[11] See generally, Hicks v. PGA Tour, Inc., 897 1109,1113 (4th Cir. 2018) (Court held caddies held enough control over their work to consider them independent contractors).

^[12] Id at 1115.

^[13] Id.

^[14] See Id.

^[15] Id at 1113. 

^[16] See Golf Caddies: Independent Contractors or Employees? Lipsky Lowe an Employment Law Firm LLP (Oct. 21, 2022, 10:15 AM), https://lipskylowe.com/golf-caddies-independent-contractors-or-employees/.

^[17] Id. 

^[18] Id.

^[19]  Id.

^[20] Id. 

^[21] Id.

^[22] Id.

^[23] See Connor Laubenstein, Caddie Pay Scale Highlights Role’s Volatility, The Bag Bandit (Oct 27, 2022 09:15 AM) https://www.thebagbandit.com/post/caddie-pay-scale.

Can the NFL Remove Dan Snyder as Washington Commanders Owner Following Toxic Workplace Allegations?

By: Kevin T. Mullane

The investigation into allegations of a toxic workplace culture at the Washington Commanders (hereinafter “Commanders”) National Football League (hereinafter “NFL”) franchise has been ongoing for more than two years now.^[1] It began in July 2020 following a bombshell Washington Post report which included numerous allegations of harassment and misconduct by team executives.^[2] Commanders owner Dan Snyder (hereinafter “Snyder”) hired a prominent Washington D.C. area lawyer to investigate these claims, with the League ultimately taking over the investigation in August 2020.^[3] After a decision by the NFL not to publicly release the findings of the internal investigation, the House of Representatives Committee on Oversight and Reform filed an inquiry on October 21, 2021.^[4]

            The allegations against the team are quite serious.^[5] One specific allegation comes from a group of 15 former employees who claim they were sexually harassed and verbally abused by Commanders executives from 2006 through 2019. Allegations against Snyder personally have also been uncovered; Snyder allegedly paid a former female employee $1.6 to not publicly disclose her allegations or take any legal action.^[6] It is further alleged that the use of non-disclosure agreements was a common practice in the Commanders organization, and that numerous employees have been silenced since Snyder purchased the team approximately two decades ago.^[7]

            The controversy surrounding the Commanders is similar to the circumstances surrounding the sale of the Carolina Panthers (hereinafter “Panthers”) back in 2018.^[8] Former Panthers owner Jerry Richardson was personally accused of despicable acts of sexual harassment in the workplace towards female employees and directed a racial slur against a team scout.^[9] The key difference was Richardson voluntarily sold the Panthers after the allegations against him piled up, and he ultimately became 1.1 billion dollars richer despite his actions.^[10] Daniel Snyder has absolutely no intentions of selling the Commanders voluntarily.^[11] Snyder has reportedly told associates he intends to fight to keep the Commanders and is prepared to use so called, “dirt” on fellow NFL Owners and League Commissioner Roger Goodell (hereinafter “Goodell”) if such a battle unfolds.^[12]

            Theoretically, it is possible that the NFL could remove Snyder and force the sale of the Commanders, but this would be an unprecedented scenario in the 102-year history of the NFL.^[13] Section 8.13 of the NFL Constitution grants the power to the League Commissioner to determine whether an owner has violated the NFL Constitution or is guilty of, “conduct detrimental to the welfare of the league or professional football.”^[14] The NFL Constitution further grants the power of the commissioner to force a vote by the owners to remove a team’s owner and effectively force them to sell their team with a three-fourth’s majority vote.^[15]

            It remains to be seen how this situation will play out.^[16] The investigation has yet to conclude, but Goodell has stated its findings will be disclosed to the public when they become available.^[17] Further, no discussion of Snyder was on the agenda for leagues meetings this past week, although the other Owners have been briefed on the investigation.^[18]It is also a possibility that the allegations and investigation have begun to turn other NFL owners against him.^[19]Indianapolis Colts owner Jim Irsay recently commented that he believes serious consideration should be given to removing Snyder following the conclusion of the investigation.^[20] Irsay further implied that the NFL could have enough votes to remove Snyder as Commanders’ owner should the issue come to a vote.^[21] It would take 24 out of 31 votes to do so.^[22] The Commander’s responded to Irsay’s comments, calling them highly inappropriate, and that once the investigation concludes, Irsay will find that there is no reason for Snyder to consider selling the Commanders.^[23]

            Nevertheless, if Snyder and his Commanders are responsible for the harm and silencing of numerous individuals, it would be in the best interest of justice that he faces the same fate as the now disgraced Jerry Richardson and sell the Washington Commanders.

---

^[1] See Sources: Commanders boss Snyder claims ‘dirt’ on NFL owners, Goodell, ESPN (Oct. 13, 2022), https://www.espn.com/nfl/story/_/id/34778123/washington-commanders-owner-dan-snyder-claims-dirt-nfl-owners-roger-goodell

^[2] See id.

^[3] See id.

^[4] See Supplemental Memo for Hearing on “Tackling Toxic Workplaces: Examining the NFL’s Handling of Workplace Misconduct at the Washington Commanders”, Committee on Oversight and Reform (June 22, 2022), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2022-06-22%20Supplemental%20Memo%20Tackling%20Toxic%20Workplaces.pdf.

^[5] See id. 

^[6] See Cydney Henderson, Details emerge of 2009 sexual assault allegation against Washington Commanders owner Daniel Snyder, USA Today(June 21, 2022, 10:54 PM), https://www.usatoday.com/story/sports/nfl/2022/06/21/details-emerge-2009-sexual-assault-allegation-against-daniel-snyder/7695748001/.

^[7] See ESPN, supra note 1.

^[8] See Jason Hewitt, Reflecting on the Jerry Richardson Scandal, FanNation (July 18, 2020, 10:06 AM), https://www.si.com/nfl/panthers/news/reflecting-on-the-jerry-richardson-scandal.

^[9] See Joe Kozlowski, Who is Jerry Richardson and Why did the Carolina Panthers Remove His Statute, Sportscasting (June 11, 2020), https://www.sportscasting.com/who-is-jerry-richardson-and-why-did-the-carolina-panthers-remove-his-statue/.

^[10] See Hewitt, supra note 8. 

^[11] See ESPN, supra note 1.

^[12] See id.

^[13] See David Steele, Colts Owner Says NFL May Have Votes To Remove Snyder, Law360 (Oct. 18, 2022, 6:00 PM), https://www.law360.com/employment/articles/1541174/colts-owner-says-nfl-may-have-votes-to-remove-snyder.

^[14] Nat’l Football League, Const. and Bylaws of the Nat’l Football League 1, 30-32 (2006).

^[15] See id.

^[16] See Steele, supra note 13.

^[17] See id. 

^[18] See id.

^[19] See id.

^[20] See id.

^[21] See id.

^[22] See id.

^[23] See id.

Amazon Warehouse Fires: A Flashback of the 1911 Triangle Shirtwaist Fire

By: Armin Mosammat

Whether its 2022 or 1911, the lives of workers have always been valued to be less than profits for large corporations like Amazon.^[1] In the past weeks, news of 3 separate fire incidents in Amazon warehouses broke out, as it endangered the lives of hundreds of workers. ^[2]  On October 3^rd the HSV1 Amazon fulfillment center in Alabama caught on fire for the second time in two weeks. ^[3]  That same day, another fire broke out across the country in the Staten Island fulfillment center, JFK8 as well as in the ALB1 fulfillment center outside Albany, in New York.^[4]

            One would think, a multi-billion-dollar corporation like Amazon is using its resources to ensure that workers are protected from these constant outbreaks of blazing fires.^[5]  One would think the corporation would be prioritizing the lives of their workers rather than its greed for money.^[6]  However, it could not have been anymore different, especially with Amazon keeping the facilities open and running after the outbreak of the fires.^[7]  Not only that, but Amazon demanded employees for later or night shifts to come in without letting them know about the fire that broke out earlier in the day. ^[8]  The working conditions were unsafe as employees claimed that the smoke still lingered making them feel congested and light-headed. ^[9]  Amazon managers simply asked the workers to “work through it.” ^[10]  Workers have claimed that the Amazon buildings are even missing fire extinguishers and workers are directed to “evacuate through slow-moving turnstiles instead of emergency exits” when such fires break out. ^[11]  This immediately takes me back to the Triangle Shirtwaist Fire in New York City that killed 146 workers, in the year of 1911. ^[12]

            The death of the 146 workers in the Triangle Shirtwaist Fire was preventable.^[13] In 1911, those workers died because of neglected safety features within the factory building.^[14]  In that factory, there were 4 elevators but only one, that could hold 12 people at a time functioned.^[15]  The doors were locked from inside and there were no emergency exits.^[16]  This is similar to our world today, where Amazon forces its employees to use “slow-moving turnstiles instead of emergency exits” to escape the sudden fires that erupt in its facilities. ^[17]  The owners of the Triangle Shirtwaist factory were believed to have “deliberately torched their workplaces before business hours in order to collect on the large fire-insurance policies” proving that even then the lives of hundreds of workers meant nothing against money and corporate greed. ^[18]  Fast forward to 2022, we are still seeing corporations place their profits above the lives and security of their workers.^[19]  It raises the question of how much we, as a society have advanced with our labor and employment laws, if our workers are still being forced to work in clear, unsafe working conditions? ^[20]

         Because Amazon and more specifically the Staten Island, JFK8 facility demanded night shift workers to report to work after sending the day shift workers home following the fire, many workers protested resulting in their suspension.^[21] Martinez, one of the day workers, who witnessed the fire stated, Amazon required night workers come in for their shifts to work and let day workers leave because it was “losing more money by them missing a 10-hour shift than by day workers going home two hours early.” ^[22] In other words, the multi-billion dollar corporation did not want to lose any money by allowing workers to take the night off, so it demanded its workers to return to work despite knowing that the conditions were unsafe.^[23]  This led about 100 workers to stage a march demanding to be sent home with pay instead of being forced to work in the unsafe working conditions.^[24] Amazon workers demanded to resume working once smoke clears but the corporation responded by suspending 50 workers instead. ^[25]

            This ordeal unraveled just a few months after workers at the “Staten Island warehouse became the first Amazon employee collective to vote to unionize.” ^[26] However, Amazon appealed for the result of that vote stating that the election was “tainted by the local National Labor Relations Board (NLRB) office.” ^[27]  The labor union still faces a long battle for recognition by Amazon. ^[28] Amazon is using intimidation tactics to suppress the union by suspending working.^[29] When workers demanded the right to speak together as a union, Amazon informed them that key worker leaders have been suspended for doing exactly what workers voted for.^[30] These intimidation tactics are being used against workers while they are being forced to “work amidst toxic fumes, mere minutes after the fires are extinguished.” ^[31]

            With the Amazon Fires and the Triangle Shirtwaist Factory Fire, we are still in the same predicament as we were more than 100 years ago.^[32] Even a century later, workers are being abused and taken advantage of by corporation use intimidation tactics to stifle unions from rising.^[33] Workers are still forced to work in unsafe working conditions as corporations value making money more than lives of the employees who keep them running.^[34]  

---

^[1] See Luis Feliz Leon, Three Amazon Warehouses Catch Fire; Workers Protest Unsafe Conditions with Sit-in, LABORNOTES (Oct. 7, 2022), https://labornotes.org/2022/10/three-amazon-warehouses-catch-fire-workers-protest-unsafe-conditions-sit.

^[2] Id.

^[3] Id.

^[4] Id.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] See Amazon Labor Union says 50 Workers Suspended For Refusing to Work in “Unsafe” Staten Island Warehouse After Fire, CBSNEWS (Oct. 5, 2022, 6:13 AM), https://www.cbsnews.com/news/amazon-labor-union-workers-suspended-jfk8-staten-island-warehouse-walkout-fire/.

^[9] Id.

^[10] Leon, supra note 1.

^[11] Id.

^[12] Triangle Shirtwaist Factory Fire, HISTORY (Mar. 23, 2021), https://www.history.com/topics/early-20th-century-us/triangle-shirtwaist-fire

^[13] Id.

^[14] Id.

^[15] Id.

^[16] Id.

^[17] Leon, supra note 1.

^[18] See, Triangle Shirtwaist Factory Fire, supra note 12.

^[19] Leon, supra note 1.

^[20] Id.

^[21] Id.

^[22] Id.

^[23] Id.

^[24] See CBSNews, supra note 8.

^[25] See Leon, supra note 1.

^[26] Id.

^[27] Id.

^[28] Id.

^[29] Id.

^[30] Id.

^[31] Id. 

^[32] See CBSNews, supra note 8

^[33] Id.

^[34] Id.