Are you feeling the pressure? Effects and Consequences of Employees Returning to Work Amid COVID-19

By: Darling Gutierrez

The JPMorgan Chase & Co. chief executive officer, Jamie Dimon, says that it is time for the bank’s employees to return to work in person because productivity from home has decreased and the dangers of employees staying homes are too great.^[1]  The bank has asked its employees to return to work in the office by September 21st, unless they meet certain exceptions (unable to obtain child care or suffer from medical issues).^[2]  The bank plans to follow a rotational model and have fifty percent of its workforce in the office.^[3]

Not long after these orders, it was reported that an employee had tested positive for COVID-19 and the bank sent the employees in that office home.^[4]  It seems likely that now since a prominent bank has ordered its employees back to the office, many other employers will feel the pressure to follow the trend.^[5]  For example, Goldman Sachs CEO, David Solomon, agreed with Mr. Dimon and recently announced that its bank’s employees will also start returning to the office.^[6]

There are many things that employers have to take into account when considering whether they will reopen their offices, including: the resources needed to provide employees with what is necessary for hygiene purposes,^[7] how to handle employees who refuse to return to work^[8] or cannot return to work,^[9] assessment on how employees can be exposed and how to prevent occupational exposure,^[10] the arrangements that will be made to allow for social distancing^[11] and how or whether the employees will be tested or screened before they return to work and once they return to work.^[12]

The trend of shifting from remote work to in-person work is also affecting employees; employees do not feel safe commuting to work or working with colleagues in person.^[13]  Employees fear that employers are putting their business and profits ahead of the safety of the employees.^[14]  There can also be backlash from employees and the public for pressuring employees to return to work.  For example, Epic Systems was forced to delay its plan for employees to return to work after receiving such backlash.^[15]

As COVID-19 continues to spread, employers face many challenges, including legal risks.^[16]  Employers may face lawsuits with employees “demanding safer working conditions or compensation for lost wages and medical bills.”^[17]  There have already been wrongful death, wrong termination and negligence lawsuits brought by the families of employees that lost their lives to COVID-19, with allegations that the employer did not do enough to protect their employees from contracting COVID-19.^[18]  Employees who have survived after contracting COVID-19 have also sued their employers for damages, medical bills and future earnings lost due to being sick.^[19]

Many experts expect for there to be a shift in the litigation against employers; with many predicting that these new suits will involve discriminatory layoffs, disability bias, unpaid wage claims, reimbursements for business expenses, and family and sick leave.^[20]  There could also be lawsuits related to whistleblowing complaints and sexual harassment and other harassment complaints as employees readjust to working in the workplace and learn to abide with social distancing guidelines.^[21]

According to the CDC guidelines for opening office buildings, employers are responsible for providing a “safe and healthy workplace.”^[22]  It has been difficult for employers and employees alike, and some have claimed that the government departments in charge of workers’ health and safety have failed to police worker safety during the pandemic and ignored employee complaints.^[23]  The AFL-CIO filed a petition against the Occupational Safety and Health Administration (OSHA) to compel the department to issue regulations to protect workers.^[24]  OSHA has not released an Emergency Temporary Standard, to this date and only suggested recommendations have been released,^[25] despite multiple members of the U.S. House of Representatives calling for OSHA to release an emergency temporary standard to protect workers.^[26]

Many are hoping Congress will provide immunity to employers from being sued if their employees get sick during future outbreaks.^[27]  The biggest concern with this proposition is that employers would be disincentivized from providing a work space that will protect their employees and workplace standards would be very low.^[28]  There is also a question of whether employers should be protected if a customer is exposed at an establishment because an employee was sick.^[29]  Those calling for protections to businesses argue that it will stop small businesses from having to shut down completely because of lawsuits and hurt the economy.  The argument against these protections are workers and customers will be left vulnerable if businesses take advantage of the protection and therefore should have the right to sue.^[30]  All businesses are worried about the consequences, especially small businesses who may not be making as much profit or may be experiencing losses due to having to shut down.^[31]

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^[1] Michelle F. Davis and Katherine Burton, JPMorgan Chief Jamie Dimon Fears Long-Tem Effects of Working From Home, The Sydney Morning Herald (Sept. 16, 2020) https://www.smh.com.au/business/the-economy/jpmorgan-chief-jamie-dimon-sees-long-term-damage-if-people-don-t-return-to-work-20200916-p55w0s.html.

^[2] Julia-Ambra Verlaine, JPMorgan Top Brass Tell Trading-Floor Staff to Come Back to the Office, The Wall Street Journal (Sept. 10, 2020) https://www.wsj.com/articles/jpmorgan-top-brass-tell-trading-floor-staff-to-come-back-to-the-office-11599757313.

^[3] Hugh Son, JPMorgan Will Have Staff Cycle Between Office and Remote Work in a Move that May Remake Wall Street, CNBC (Aug. 25, 2020) https://www.cnbc.com/2020/08/25/jpmorgan-will-have-staff-cycle-between-office-and-remote-work-in-a-move-that-may-remake-wall-street.html.

^[4] Lisette Voytko, JPMorgan Reportedly Sends NYC Workers Home As Employee Tests Positive For COVID-19, Forbes (Sept. 15, 2020) https://www.forbes.com/sites/lisettevoytko/2020/09/15/jpmorgan-reportedly-sends-nyc-workers-home-as-employee-tests-positive-for-covid-19/#5de48cdd4894.

^[5] Son, supra note 3.

^[6] Hugh Son, Goldman Sachs Joins JPMorgan in Saying Wall Street Workers Will Return to the Office in Rotations, CNBC (Sept. 9, 2020) https://www.cnbc.com/2020/09/09/goldman-sachs-joins-jpmorgan-in-saying-wall-street-workers-will-return-to-the-office-in-rotations.html.

^[7] Occupational Safety and Health Administration, Guidance on Returning to Work, OSHA at 6 (2020) https://www.osha.gov/Publications/OSHA4045.pdf.

^[8] Reopening the Economy in the Midst of COVID-19: What happens if an Employee Refuses to Return to Work?, The National Law Review (Apr. 17, 2020) https://www.natlawreview.com/article/reopening-economy-midst-covid-19-what-happens-if-employee-refuses-to-return-to-work.

^[9] U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Law, U.S. EEOC(Sept. 8, 2020) https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

^[10] OSHA, supra note 7, at 6; United States Department of Labor, COVID-19, OSHA https://www.osha.gov/SLTC/covid-19/standards.html. 

^[11] Centers for Disease Control and Prevention, Employer Information for Office Buildings, CDC (Sept. 11, 2020) https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html#:~:text=CDC%20recommends%20wearing%20a%20cloth,spreading%20it%20to%20others.

^[12] U.S. EEOC, supra note 9.

^[13] Christina Farr, Drugmaker AbbVie Pressures Reluctant Employees to Return to Work, Raising Safety Questions, CNBC (Sept. 11, 2020) https://www.cnbc.com/2020/09/11/pharmacabbvie-employees-raise-safety-concerns-with-return-to-work-plans.html.

^[14] Id.

^[15] Christina Farr, Epic Systems Walks Back Plans Requiring Thousands of Employees to Return to Work this Week, CNBC (Aug. 10, 2020) https://www.cnbc.com/2020/08/10/epic-systems-walks-back-plans-requiring-employees-to-return-to-work.html.

^[16] Erik Larson, Legal Risks Abound When Companies Bring Their Employees Back, Bloomberg Law (Jun. 12, 2020) https://news.bloomberglaw.com/us-law-week/legal-risks-abound-when-companies-bring-their-employees-back.

^[17] Id.

^[18] Janet Adamy, Families File First Wave of COVID-19 Lawsuits Against Companies Over Worker Deaths, The Wall Street Journal (Jul. 30, 2020) https://www.wsj.com/articles/families-file-first-wave-of-covid-19-lawsuits-against-companies-over-worker-deaths-11596137454; Braden Campbell, The Next COVID-19 Employment Litigation Hotbeds, LAW360 (Sept. 16, 2020) https://www.law360.com/employment/articles/1309410/the-next-covid-19-employment-litigation-hotbeds-?nl_pk=ae38c76b-a354-4204-a690-87a8bdcf2318&utm_source=newsletter&utm_medium=email&utm_campaign=employment. 

^[19] Adamy, supra note 18.

^[20] Campbell, supra note 18. 

^[21] Michael Savage, A Return to Work is on the Cards. What are the Fears and Legal Pitfalls?, The Guardian (May 10, 2020) https://www.theguardian.com/world/2020/may/09/coronavirus-return-to-work-employment-law-logistical-nightmare.

^[22] CDC, supra note 11.

^[23] Larson, supra note 16; AFL-CIO Sues OSHA for Emergency Temporary Standard to Protect Workers, AFL-CIO (May 18, 2020) https://aflcio.org/press/releases/afl-cio-sues-osha-emergency-temporary-standard-protect-workers. 

^[24] AFL-CIO, supra note 23.

^[25] OSHA, supra note 7.

^[26] COVID-19 Pandemic: Republican House Members Call for OSHA Emergency Standard, Safety+Health (Jul. 15, 2020) https://www.safetyandhealthmagazine.com/articles/20076-covid-19-pandemic-republican-house-members-call-for-osha-emergency-standard.

^[27] Larson, supra note 16.

^[28] Ellen Sheng, As America Reopens, Prepare for a Flood of Coronavirus Workplace Lawsuits, CNBC (May 20, 2020) https://www.cnbc.com/2020/05/20/as-us-reopens-prepare-for-flood-of-coronavirus-workplace-lawsuits.html.

^[29] Amber Phillips, Should Congress Protect Businesses from Coronavirus Lawsuits?, The Washington Post (May 8, 2020) https://www.washingtonpost.com/politics/2020/05/08/lawsuit-coronavirus-congress/.

^[30] Id.

^[31]  Sheng, supra note 28.

Employer Liability Immunity at Odds with Worker Safety and Recourse for Next Aid Package

By: Vanessa Giunta

While the House of Representatives plans to extend the current legislative session, seeking a potential deal before the November elections,[1] inclusion of nearly blanket liability protections for employers in the next federal stimulus aid package remains a contentious nonstarter over partisan lines.[2] Senate Republican proponents of a federal shield for businesses fearing exposure-related lawsuits, led by Majority Leader Mitch McConnell, still believe corporate immunity is necessary for economic recovery.[3] However, the oft-cited wave of crippling exposure lawsuits linked to employer immunity justification has yet to materialize.  The “wave” has recently been described as “just a trickle” rather than a “flood of litigation” by National Employment Law Project (NELP) Staff Attorney and Skadden Fellow, Hugh Baran.[4]

In addition to economic protections for employers, Senate Republicans cited another concern, safeguarding CARES Act taxpayer money loaned to businesses from becoming damages in employee-led lawsuits.[5] Aside from the fact that such taxpayer money is generated in part by workers whose safety is the issue in question,[6] the type of corporate immunity proposed would “cover a sweeping range of COVID-19-related claims, with a narrow exception for intentional misconduct and gross negligence that would be extraordinarily difficult for workers or consumers to prove . . . riddled with loopholes that bad actors could easily exploit.”[7] Beyond exceptions for only the most reckless or intentional actions, under the Safe to Work Act, employees can only win lawsuits if they prove employers were not making reasonable efforts to comply with applicable standards and guidelines with “clear and convincing evidence.”[8] Amid other mechanisms for employer protections, Senate proposals include automatic presumptions of reasonable efforts made if employers maintain a written or published policy on coronavirus mitigation strategies at the time of an alleged exposure.  To fall within the presumption, these policies must comply with applicable governmental guidance.[9]

NELP and others have opposed these measures, writing to Congressional Leaders on behalf of 208 organizations from 44 states, the District of Columbia, and Puerto Rico about corporate immunity bills and orders passed in ten states, warning of their effects to “exacerbate the health and safety crisis facing essential and frontlines workers.”[10] The organization pointed to outbreaks in states where COVID-19 cases are surging and linked many to unsafe working conditions.[11] Powerful industry groups have already lobbied Congress for the safe harbor provision, asking it to “blunt the chilling effect [liability] will have on otherwise reasonable decision-making.”[12]  However, employers are rarely found liable for employee deaths and are further insulated from pre-existing barriers including workers’ compensation, arbitration agreements, and the general difficulty behind proving negligence and causation in tort liability claims given the virus’s lengthy incubation period.[13]

Arguments to preserve workers’ abilities to seek recourse in the courts trace the sentiments of other movements in the country, calling for strengthened civil and human rights to overcome systemic injustices and power imbalances.  This is due to the fact that the crisis has exploited and exacerbated existing socioeconomic and racial inequalities harming black and brown workers most.[14] In addition to concerns about a potential “race to the bottom” effect on safety propelled by immunity-emboldened cost cutting,[15] minimal retributive action taken by the Occupational Safety and Health Administration (OSHA)[16] may leave employees, including those already disproportionately impacted, with few options other than lawsuits to hold employers accountable for their safety.[17]

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[1] Shelby Brown et al., Could a New Stimulus Package Still Pass Before the Election? When and How it Could Happen, CNET (Sept. 20, 2020 9:25 AM), https://www.cnet.com/personal-finance/new-stimulus-package-before-the-election-heres-when-it-could-pass/.

[2] Braden Campbell, Liability Debate Belies Low COVID-19 Litigation Numbers, Law360 (Sept. 18, 2020 7:47 PM), https://www.law360.com/employment/articles/1311701/liability-debate-belies-low-covid-19-litigation-numbers.

[3] See Id.

[4] Id.; Hugh Baran (@hughbaran), Twitter (Sept. 19, 2020 5:14 PM), https://twitter.com/hughbaran/status/1307427753424228371.

[5] See Safe to Work Act, S. 4317, 116^th Cong. § 2 (a)(11) (2020).

[6] See generally Urban Inst. et al., Tax Policy Center’s Briefing Book: Some Background, Tax Policy Ctr., https://www.taxpolicycenter.org/briefing-book/what-are-sources-revenue-federal-government (last visited Sept. 20, 2020) (“About 50 percent of federal revenue comes from individual income taxes.”).

[7] Sejal Singh & Liz Watson, Senate Republicans Want to Let Corporations Get Away with Murder, Slate (July 28, 2020 6:07 PM), https://slate.com/news-and-politics/2020/07/senate-republicans-corporate-immunity-heals-act.html.

[8] See Campbell, supra note 2; see also Ian Millhiser, The GOP’s Radical Plan to Shield Business from COVID-19 Lawsuits, Explained, Vox (July 29, 2020 9:40 AM), https://www.vox.com/2020/7/29/21345228/liability-shield-mitch-mcconnell-republican-safe-to-work-act-gross-negligence.

[9] See Safe to Work Act, S. 4317, 116^th Cong. § 122 (b)(2)(A) (2020).

[10] NELP and Other State and National Organizations Oppose Corporate Immunity Bill, NELP (Aug. 4, 2020), https://www.nelp.org/publication/nelp-and-other-state-and-national-organizations-oppose-corporate-immunity-bill/.

[11] Id.

[12] Re: COVID-19 Limited Liability Protections, ACENET (May 28, 2020), https://www.acenet.edu/Documents/Letter-Congress-pandemic-liability-052820.pdf.

[13] See Campbell, supra note 2; see also Greg Iacurci, Are Businesses in Dangers of Coronavirus Lawsuits as They Reopen?, CNBC (May 21, 2020 1:49 PM), https://www.cnbc.com/2020/05/21/are-businesses-in-danger-of-coronavirus-lawsuits-as-they-reopen.html.

[14] See Nat’l Ctr. For Immunization and Respiratory Diseases, Div. of Viral Diseases, Health Equity Considerations and Racial and Ethnic Minority Groups, CDC (July 24, 2020),  https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html.

[15] See NELP, supra note 10.

[16] See Vin Gurrieri, OSHA’s Wave of Virus Fines Fails to Win Over Skeptics, Law360 (Sept. 17, 2020 5:36 PM), https://www.law360.com/articles/1310786/osha-s-wave-of-virus-fines-fails-to-win-over-skeptics; see also Noam Scheiber, Protecting Workers From Coronavirus: OSHA Leaves it to Employers, N.Y. Times (Apr. 22, 2020),  https://www.nytimes.com/2020/04/22/business/economy/coronavirus-osha-workers.html.

[17] See Ana Swanson & Alan Rappeport, Liability Shield is a Stumbling Black as Lawmakers Debate Relief, N.Y. Times (Aug. 5, 2020), https://www.nytimes.com/2020/08/05/us/politics/liability-shield-business-coronavirus.html; see also Bernice Yeung & Michael Grabell, They Warned OSHA They Were in “Imminent Danger” at the Meat Plant. Now They’re Suing the Agency, ProPublica (July 23, 2020 1:06 PM),  https://www.propublica.org/article/they-warned-osha-they-were-in-imminent-danger-at-the-meat-plant-now-theyre-suing-the-agency.

Marijuana Legalization’s Impact on Workplace Drug Testing

By Santiago Uribe

“In 2012, only two states, Washington and Colorado, allowed the recreational use of marijuana for adults. Just eight years later, marijuana laws are flying high: Eleven states have legalized recreational pot, and 33 states allow cannabis for medical use.”^[1] This November, “voters in five states will decide whether to adopt either new medical or recreational cannabis laws…”^[2] The imminent legalization of marijuana will give rise to a plethora of legal debates and challenges.^[3] In regards to the labor and employment context, lawmakers will have to enact legislation to address the impact marijuana legalization will have on employer and employee rights. In particular, lawmakers should attempt to reconcile two seemingly competing interests: (1) the workforce’s recreational use of marijuana; and (2) employer’s interest in maximizing productivity.

Drug testing is at the forefront of issues lawmakers will have to address in reaching a middle ground between these competing interests.  In drug testing employees, employers seek to prevent “accidents, injuries, absenteeism, [decreased] productivity, and other tangible and intangible factors…”^[4] Moreover, “[e]mployers have the right to test for drugs because they have an overriding obligation to provide safe working conditions…”^[5] However, marijuana testing is not a fool proof way of determining whether employees have recently consumed marijuana. Marijuana testing “is inherently flawed because it doesn’t measure impairment, but only past use. Urine tests incorrectly treat even the most harmless off-the-job use of marijuana as drug abuse…”^[6] Recently, there has been an influx of legislation concerning marijuana drug testing. ^[7]

For example, New York City recently enacted a law which “prohibits employers, including City agencies, from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (THC) or marijuana in such prospective employee’s system as a condition of employment.”^[8] The law safeguards the public interest by excluding police officers^[9], construction workers^[10], and teachers^[11]. The law also provides a catch-all provision which exempts jobs that have “the potential to significantly impact the health or safety of employees or members of the public…”^[12] Although the New York City law seems to be a good starting point for prospective drug testing statutes, the law fails to provide a thorough solution to the marijuana drug testing dilemma because it only addresses pre-employment drug testing. Put differently, the law provides no protection for individuals who are already employed.

In 2016, Maine enacted the Marijuana Legalization Act, which legalized recreational marijuana use. Section 2454(3) of the Act provided in pertinent part: “A[n]… employer may not refuse to… employ… or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the… employer’s… property.”^[13] Maine’s law seemed to afford an excessive degree of protection to employees because it completely precluded employers from taking disciplinary actions against employees for marijuana related offenses. However, in May of 2018, the Maine legislature overrode the aforementioned statute by enacting “An Act To Implement a Regulatory Structure for Adult Use Marijuana”, which states in pertinent part Section 112(3) – “[Employers] May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees.”^[14] Currently, no state has enacted a law that provides absolute employment protection for recreational marijuana users.^[15]

In sum, marijuana legalization will undoubtedly create challenges for employers and employees alike. Only time will tell if lawmakers can provide a resolution to the seemingly inherent conflict between the workforce’s recreational use of marijuana and employer’s interest in maximizing productivity.

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^[1] Stephanie Zimmermann, Fairness is an issue in clearing low-level marijuana convictions, A.B.A. J. (Apr. 1, 2020, 2:10 AM), https://www.abajournal.com/magazine/article/fairness-is-an-issue-in-clearing-low-level-marijuana-convictions.

^[2] Alicia Wallace, These states are voting on cannabis legalization this November, CNN (Sep. 12, 2020, 11:50 AM), https://www.cnn.com/2020/09/12/business/cannabis-ballot-2020-election/index.html.

^[3] Max Freedman, Cannabis at Work: How Employers Are Reacting to the Legalization of Marijuana, Bus. News Daily (June 10, 2020), https://www.businessnewsdaily.com/9386-legal-marijuana-employment-practices.html.

^[4] Peter B. Bensinger, Drug Testing in the Workplace, 498 Annals Am. Acad. Pol. & Soc. Sci. 43, 44 (1988).

^[5] Geoffrey P. Alpert & Kenneth C. Haas, Drug Testing at Work: Balancing Reason with Presumption, Crim. Just. Pol’y Rev. 376, 377 (1989).

^[6] Dale Gieringer, California NORML Exposes Flaws of Drug Testing, Winter/Spring 2013 The J. of Cannabis in Clinical Prac. 40, 41.

^[7] Medical and Recreational Marijuana State Law Survey, LexisNexis (July 8. 2020), https://plus.lexis.com/document/?pdmfid=1530671&crid=ed749bb1-076c-42c8-9d69-0d01b9fdc742&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5M19-BTF1-JWXF-20SK-00000-00&pdworkfolderid=3baac36f-1d4f-4605-9176-320e2b51f737&ecomp=1pJk&earg=3baac36f-1d4f-4605-9176-320e2b51f737&prid=8c900cac-b40a-4eb8-a62c-ac84003b8f1f&cbc=0

^[8] N.Y.C. Admin. Code § 8-107 (31) (a).

^[9] See Id. at (31)(b)(1)(A),

^[10] See Id. at (31)(b)(1)(B).

^[11] See Id. at (31)(b)(1)(D).

^[12] Id. at (31)(b)(1)(E).

^[13] 2017 Me. Laws 409

^[14] Id.

^[15] Medical and Recreational Marijuana State Law Survey supra note 7.

Trial Court Inability and Refusal to Apply ADA Amendment Act Disability Protection Standards: Harrison v. Soave Enterprises L.L.C. and The Troubling Strain for Disability Discrimination Litigants

By: Moxi Szodfridt

The Americans with Disabilities Act of 1990 (“ADA”) aimed to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities”.[1] Enacted to assure a special recognition of physical and mental disabilities and legislative protection for prejudicial workplace preclusion, the ADA legitimized a long-line of established precedent.[2] The Rehabilitation Act of 1973 or colloquially, the pre-cursor to the ADA, was similarly situated to its broader legislative brother.[3] Congress anticipated and expected that the formal definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a disabled individual under the Rehabilitation Act of 1973.[4] This expectation was quickly scuttled by an onslaught of notably narrow court interpretations of ADA afforded broad scope disability protections.

The Supreme Court independently assumed the role of narrowing the ADA definition of disability, churning out decisions such as Sutton v. United Airlines, Inc., which precluded the “inability to perform a single, specific job” from constituting a “substantial limitation” on one or more of an individual’s “major life activities” effectively narrowing the protective scope of the ADA.[5] Further narrowing protections, the Supreme Court held in Toyota Motor Manufacturing, Kentucky Inc. v. Williams, that a physical or mental impairment “must prevent or severely restrict an individual’s ability to perform activities of central importance to daily life” to qualify as a protected disability under the ADA.[6] These two cases and their blatant deviation from the Congressionally intended standard for disability protections lead to the ADA Amendment Act of 2008 (“ADAAA”), signed into law by President George W. Bush.[7]

The amendment explicitly rejected the enouncements in Sutton v. United Air Lines Inc., and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.[8] ADAAA rules of construction protected impairments that need not prevent, severely or significantly limit a major life activity to be considered “substantially limiting, by loosening the “regarded-as” standard so that a plaintiff has to show only the belief of a physical or mental impairment to an employer to be protected under the ADA.[9] The definition of a disability under the ADA did not change in the 2008 amendment but expansions on what constitutes a “major life activity” and clarifications of “substantially limiting” disabilities effectively re-broadened the application of the law.[10] Following the ADAAA, courts began to apply disability protections in a manner that expressed the original Congressional intent of the ADA in accordance with The Equal Employment Opportunity Commission’s accompanying interpretative guidance regulations.[11]

Trial court diligence to ADAAA and EEOC guidance however, was seemingly short-lived as a recent 6th Circuit case suggests that courts may start backpedaling to a pre-ADAAA era. The case is Harrison v. Soave Enterprises L.L.C. and Parts Galore L.L.C., involving a manager’s termination deduced to be resultant of a knee injury which inhibited her ability to kneel and examine cars after a decade-long employment at self-service salvage yard Parts Galore L.L.C.[12] In its January 2019 summary judgement ruling in favor of Soave and Parts Galore, the district court found there to be an insufficient showing of an ADA protected disability, as a knee injury did not fall into the category of “substantially limit[ing]” a “major life activity”.[13]

The district court cited Black v. Roadway Express, a similarly situated 6th Circuit, 2002 decision where summary judgment was granted for a jury’s assumed inability to find that a knee injury could substantially limit any major life activity.[14] Plaintiff Jacqueline Harrison with the backing of the Equal Employment Opportunity Commission (“EEOC”) challenged the lower court’s ruling.[15] The 6th Circuit reversed, concluding that a jury could find employer (“Parts Galore”) knowledge of disability, as plaintiff had requested a mirror to perform her employment duties citing Parts Galore Regional Manager’s specific reference to plaintiff’s knee when he terminated her.[16]

While the 6th Circuit Court’s reversal is in accordance with the ADAAA and EEOC Regulations, it is inherent in the trial court’s decision here, that the decade-long battle between congressionally intended disability protections and the courts’ proclivity for narrowing those protections is ongoing. This case highlights what legal scholars believe to be a widespread problem of courts ignoring the impact of the ADAAA by basing decisions on outdated legal standards. According to Nicole Buonocore Porter, Professor at the University of Toledo College of Law, courts cite this outdated disability definition as precedent, or simply the wrong law altogether, in approximately 13 percent of cases since the effective date of the ADAAA.[17] Here, the district court erroneously applied legal standard from 2002, confirming Buonocore Porter’s findings of court reliance on outdated legal precedent without acknowledgement of the ADAAA.[18]

While Harrison’s ruling reversal suggests a move in the right direction, trial courts’ proclivity for an application of outdated legal standard is distressing to litigants who must fight an upwards battle to get past the summary judgement stage of a disability discrimination claim. In applying Black precedent, the trial court in Harrison chose to rest its decision on invalid conclusions that were made six years prior to the effective date of the ADAAA, precedent that has not been legally valid for over twelve years since ADAAA enactment.[19] Harrison may speak to either a general inability to apply ADAAA protections in accordance with the congressional intent of the act, or an overt refusal to dutifully comply with the ADAAA at the trial court level, nevertheless either reason is equally as troubling to litigants and legislators alike.

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[1] 42 U.S.C. § 12101 (1990).

[2] See id. § 2(b)(1).

[3] 29 U.S.C. § 701, Pub. L. No. 93-112, § 2 (1973).

[4] S. 933, 101^st Cong. (became Public Law No. 101-666 (1990).

[5] Sutton v. United States Airlines, Inc., 527 U.S. 471, 474 (1990) (A qualified individual with a disability is identified as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual).

[6] Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 185 (2002).

[7] Americans with Disabilities Act Amendment Act of 2008, Pub. L. No. 110-325, 112 Stat. 3553 (2008) (codified at 42 U.S.C. § 12101(a)(2)).

[8] Id. at § 12101(a)(4)–(5).

[9] Id. at § 12101(3)(1) –(3).

[10] Id.

[11] 29 C.F.R. §§ 1630.1–1630.16. (2009).

[12] Harrison v. Soave Enter. L.L.C. and Parts Galore L.L.C., No. 19-1176, 2020 WL 5424040 (6th Cir. Sept 10, 2020).

[13] Id. at 4.

[14] Black v. Roadway Express, Inc., 297 F.3d 445, 451 (6th Cir. 2002).

[15] Brief for Petitioner at 1, Harrison v. Soave Enter. L.L.C., et al., (No. 19-1176), 2020 WL 5424040.

[16] Harrison v. Soave Enter. L.L.C. and Parts Galore L.L.C., No. 19-1176, 2020 WL 5424040 (6th Cir. Sept 10, 2020).

[17] Nicole Buonocore Porter, Explaining “Not Disabled” Cases Ten Years After the ADAAA: A Story of Ignorance, Incompetence, and Possibly Animus, 26 Geo. J. on Poverty L & Pol’y., 384, 392–393 (2019) (discussing the prevalence of post ADAAA disability discrimination erroneous rulings).

[18] See, e.g., Harrison v. Soave Enter. L.L.C., et al., (No. 19-1176), 2020 WL 5424040.

[19] Id.

Value-Based Pricing: Billing For Results Instead of Time

By: Brice Wilkerson

The billable hour, a paradigmatic example of the expression “time is money,” is part and parcel with the modern market for legal services here in the United States.[1] But this was not always the case; “[i]n Colonial times, for example, attorney compensation was governed by legislation.”[2] Progressing into the 1800s contingency fees and other negotiated fees were marketed to clients by legal practitioners as “private businessmen” whereby clients began “paying attorneys more in fees than prescribed by statute.”[3]

By the 1930s, “American lawyers began using ‘minimum fee schedules’ … published by … bar associations;” however, “[t]he jig was … up in the mid-1970s” when minimum fee schedules were ruled “a classic illustration of price fixing.”[4] In the wake of minimum fee schedules, “the hourly fee seemed to be a fair assessment of the actual time and effort expended by a lawyer.”[5] While time is money to a firm billing hours, the same is not necessarily true for clients because even “under the best circumstances,” the billable hour model “contains inherent conflicts between the client and the lawyer.”[6]

On the one hand, clients want “to pay a fair price for a reasonable amount of quality service” in a way they can predictably budget.[7] On the other hand “a lawyer, like any other provider of goods and services, wants to make the most money he or she can.”[8] Holding all other factors equal, a lawyer can achieve their goal by simply “billing more hours” and it is this incentive which underscores the various shortcomings of the billable hour model.[9] There are many ways of “billing more hours” including but not limited to: extra work, refusal to leverage technology, and the exercise of billing judgement.[10] Beyond incentive, clients are also uniquely disadvantaged by the asymmetry of information between them and their attorneys as related to their legal matters and time worked.[11]

            In looking for alternatives, it is important to recognize pricing strategy falls into three general categories: cost-based, competitor-based, and value-based.[12] Cost-based pricing involves billing clients as a function of expenses plus profit margin; competitor-based bases a firm’s pricing off industry practices and benchmarks; and value-based pricing bills clients as a function of what services are worth to them.[13] Here, the billable hour model is predominately cost-based where the price billed to the client is proportional to the cost (time) expended. By contrast, a value-based approach involves determining what a client’s next best alternative is, what the client cares about, and how the firm can meet the client’s needs.[14]

            Take for example a firm that builds a platform for assisting clients with preferred stock placements.[15] The service platform has its own development costs to consider but then, for each client, a placement will cost roughly the same marginal amount of time to the firm.  However, each client’s placement will be worth different amounts.[16] Here, cost-based pricing would limit recovery for platform development and would risk precluding clients with lower placement valuations while under-charging clients with higher placement valuations.[17] In this case, a simple alternative is a commission structure where the firm will retain a percentage of the placement valuation thus allowing compensation to scale while maximizing appeal to clients with both small and large valuations.[18] With respect to competition, a client would compare their valuation, less commission, to their valuation less unpredictable billable hours for a firm to do the placement from start to finish without an established platform.[19]

            As illustrated by the above example,  value-based pricing moves away from the asymmetric information problem of hourly billing; here, instead, a client knows the value of services received and what they will cost up front while remaining fully insulated from the law firm’s backend logistics.[20] Nevertheless, value-based pricing has its drawbacks: relatively high prices limit market niches, identifying practical structures (such as commission) is problematic, established value-based structures open the door to competitive pricing (under cutting), and it can be expensive to continue offering high levels of “value” to customers.[21]

Pros and cons considered, value-based pricing constitutes a significant portion of alternative fee arrangements (“AFAs), which are growing in popularity.[22] In 2019 12.1% of all matters were billed on some form of alternative fee arrangement (other than straight hourly billing) and this was up from 9.2% in 2017.[23] While a value-based pricing structure may not always be readily practicable, it is nevertheless worthwhile to consider the client value perspective while remaining open to billable hour alternatives.

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[1] Charles N. Geilich, Rich Man, Poor Man, Beggar Man, Thief: A History and Critique of the Attorney Billable Hour, 5 Charleston L. REV. 173 (2011).

[2] Id. at 175.

[3] Id. at 176.

[4] Id. at 177.

[5] Id. at 179.

[6] Id. at 179.

[7] Id. at 180.

[8] Id.

[9] Id. at 181.

[10] Id. at 183-5.

[11] Id. at 182.

[12] Henrik Ivarsson & Peter Moller, Developing Value-Based Pricing for a New Product-Service System, Chalmers Univ. of Tech. (June 10, 2020), https://odr.chalmers.se/bitstream/20.500.12380/301086/1/E2020_039.pdf, (Master’s thesis in Management and Economics of Innovation).

[13] Id. at 8-9.

[14] Id. at 27-26.

[15] Steven Bragg, Value Based Pricing, Accounting Tools (Jan 19, 2020), https://www.accountingtools.com/articles/2017/5/16/value-based-pricing.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Ben Edwards, Alternative Fees and Invoice Discounting on the Rise as GCs Seek to Cut Costs, Study Finds. The Global Legal Post (July 14, 2020) https://www.globallegalpost.com/corporate-counsel/alternative-fees-and-invoice-discounting-on-the-rise-as-gcs-seek-to-cut-costs-study-finds-33375157/

[23] Id.

NFL Keeping its Veterans on the Sidelines of its Injury Reforms

By: Kelly Fitzgerald

The National Football League (NFL) has experienced increased scrutiny in recent years regarding the protection of its players and lack of education surrounding the dangers of injuries, such as concussions. The NFL has attempted to address this criticism by taking steps to better protect current players through certain programs such as the NFL Game Day Concussion Diagnosis and Management Protocol.[1]  This program, most recently updated in 2018, provides NFL medical professionals a step-by-step procedure to identify and treat concussions.[2] Additionally, during games independent neurotrauma consultants monitor broadcast feeds in order to identify possible concussions.[3] Though these procedures are a step in the right direction, these changes have done little to assist former players suffering with serious injuries.

The minimal support for former NFL players can be seen through the NFL disability benefits. There are three types of benefits laid out in the disability plan: Total and Permanent Disability, Line of Duty Disability, and Neurocognitive Disability.[4] There are huge differences in the classification of a disability. Line of Duty Disability Benefits last only for a maximum of 90 months while Total and Permanent Disability Benefits are long term.[5] Neurocognitive Disability Benefits are only awarded for players that are not receiving any other form of disability benefits.[6] What the NFL does not acknowledge is how difficult it is for former players to meet the criteria to receive these benefits.

The NFL disability plan is governed by the Employee Retirement Income Security Act (ERISA).[7] The NFL Retirement Board is the decisionmaker regarding whether the former players will receive benefits regarding their disability claims.[8] There are six members of the NFL Retirement Board who are appointed by the NFL owners and the NFL Players Association.[9] There is no representation of former players on the board. The benefit plan uses a point system that allocates points for injuries and medical procedures in order to determine if a player is eligible for disability benefits.[10] For example, in order for a former player to obtain Line of Duty Benefits, he needs to total ten points.[11]  The Retirement Board has the final say on how many points a former player’s injury totals in order for him to receive benefits.[12]

If the former player is not satisfied with the Retirement Board’s decision he can appeal to Federal Court in accordance with his rights under ERISA.[13] However, the odds of reversal are slim. “Since 1993, the courts have upheld 96 percent of the Retirement Board’s decisions in lawsuits filed by retired players.”[14] This was seen very recently in August 2020 when a Texas federal judge upheld the decision to deny disability to former Buffalo Bills and Jacksonville Jaguars defensive back, Ashton Youboty.[15] The Retirement Board decided not to count a January 2019 football injury-related surgery, stating that the procedure occurred after the statute of limitations for plan eligibility had expired.[16] If the Retirement Board had allowed this surgery to count, benefits would have been awarded. The judge stated that although he did not agree with the Retirement Board’s decision to deny the benefits, the denial was a use of the Board’s broad discretion.[17] 

Though the NFL seems to be making strides to make the game safer for current players, it seems to have left behind the veterans of the game. The large amount of discretion and power given to the NFL Retirement Board has made it difficult for former players to obtain benefits for the injuries they sustained during their careers. As the pressure mounts for the NFL to take accountability for the injuries that players sustain during their careers, it will be interesting to see if the NFL re-evaluates its attitude toward its retired veterans.

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[1] How the NFL is Advancing Player Health and Safety, NFL Player Health & Safety, at 1 https://www.playsmartplaysafe.com/wp-content/uploads/2019/10/nfl_factsheet_healthandsafety_093019b2.pdf

 (last updated Apr. 2019).

[2] Id..

[3] Id. at 2.

[4] Overview of NFL Player Benefits, NFL Player Health & Safety, https://www.playsmartplaysafe.com/resource/nfl-benefits/ (last updated Mar. 2020).

[5] NFL Player Benefits, NFL Player Disability & Neurocognitive Benefit Plan 26 (2019).

[6] Id. at 29.

[7] Id. at53.

[8] See Oversight of the National Football League (NFL) Retirement System: Hearing Before the S. Comm. on Commerce, Sci., and Transp., 110th Cong. 10 (2007).

[9] See Id.

[10] See NFL Player Benefits, supra note 4, at 60.

[11] See id. at 22.

[12] See id. at 46.

[13] See Oversight of the National Football League (NFL) Retirement System, supra, note 7, at44.

[14] Id. at 49.

[15] See Katie Buehler, Texas Judge Laments Dismissal of Ex-NFLer’s ERISA Suit, Law 360, (Aug. 18, 2020) https://www.law360.com/benefits/articles/1302266/texas-judge-laments-dismissal-of-ex-nfler-s-erisa-suit.

[16] See id.

[17] See id.

When Rights Collide: The Clash Between Title VII and RFRA Finds a New Battleground

By: Michael Garafalo

The New Case

U.S. Pastor Council v. EEOC is a relatively new case in a Texas district court. There, the plaintiffs are seeking judgment, inter alia, declaring the Religious Freedom Restoration Act of 1993 (“RFRA”) protects the class of plaintiffs from Title VII of the Civil Rights Act of 1964 (“Title VII”)  limitations in their employment practices.[1]  However, it is possible that the case will reach the Supreme Court of the United States because of the specific issues it address—namely, whether under the RFRA an employer with a sincerely held religious belief may freely discriminate against current or potential employees on the basis of their sex in violation of Title VII.[2]

The Relevant Law

Under the RFRA, the federal government is prohibited from “substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.”[3]  Simply put, an individual invoking the RFRA’s protection could potentially “bar the application of employment discrimination laws to claims concerning the employment relationship between a religious institution and its ministers.”[4]

Under Title VII, it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”[5] On June 15, 2020, the Supreme Court in Bostock v. Clayton County held that an employer violates Title VII when they fire an employee for being homosexual or transgender.[6]  Justice Gorsuch delivered the opinion of the Court, confidently affirming that “an employer who fires an individual for being a homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”[7]  

            While this landmark decision seems sweeping, legal discrimination on the basis of sex can still theoretically occur.[8]  As theCourt pointed out, since the RFRA “operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.”[9] 

            Discussion

             Attempting to capitalize on the Bostock Court’s suggestion, the plaintiffs in U.S. Pastor Council have amended their complaint for a second time to include support from Bostock to bolster their claim in the lower court on September 9, 2020.[10]  There, the plaintiffs’ suit challenges the Equal Employment Opportunity Commission’s (“EEOC”) application of Bostock’s interpretation of Title VII to prohibit discrimination against employees on the basis of their sexual orientation or gender identity.[11]

            The plaintiffs argue that “Title VII, under Bostock . . . substantially burdens the plaintiffs’ religious freedom by preventing them from operating their places of employment in accordance with Christian teaching[s].”[12]  According to the plaintiffs, therefore, they are entitled to exemption under RFRA and may continue to discriminate on the basis of an individual’s sex.[13]

            It is unclear how far this case will go. It could be dismissed at the trial stage.  However, if the case survives pre-trial, a finding in favor of either party would certainly prompt an appeal—the consequences at stake here are far too important to think otherwise.  The precedent established here in the lower courts will potentially set the stage for circuit splits down the road.  Such circuit splits would then provide the Supreme Court with the opportunity to resolve the contention between Title VII’s protections from discrimination on behalf of an immutable characteristic, and the RFRA’s attempts to preserve religious freedoms at the cost of violating one’s civil rights.

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[1] Plaintiffs’ Second Amended Class-Action Complaint at 1-2, U.S. Pastor Council v. EEOC, No. 4:18-cv-00824-O (N.D. Tex. filed Sept. 9, 2020).

[2] Id. at 14.

[3] Bostock v. Clayton Cty., 140 S. Ct. 1731, 1754 (2020).  

[4] Id. (internal quotations omitted) (referring to the First Amendment’s ministerial exception barring application of employment discrimination laws as RFRA can).

[5] Id.

[6] Id. at 3252.

[7] Id. (holding being confidently stated is shown by the sentence “The answer is clear.”).

[8] Id. at 3252.

[9] Id.

[10] Plaintiffs’ Second Amended Class-Action Complaint at 1-2, 26, U.S. Pastor Council v. EEOC, No. 4:18-cv-00824-O (N.D. Tex. Sept. 9, 2020).

[11] Id. at 1-2.

[12] Id. at 13.

[13] Id. at 14.

Telehealth Regulations in the Age of Coronavirus and Beyond: What Healthcare Providers Need To Know

By: Alexia Willis

The American Medical Association defines telehealth as an online platform that allows clinicians and patients to connect in real-time.[1]  Telehealth has played a crucial role in the continuance of care during the pandemic.[2]  COVID-19 has more than doubled the usage of telehealth in the United States with forty-six percent of patients having virtual appointments in 2020 compared to only eleven percent in 2019.[3]  It is speculated that approximately $250 billion of current U.S. healthcare spending can be switched to virtual health visits in the next few years.[4] 

One telemedicine provider in the US reported that they facilitated 2.8 million virtual visits in the second quarter of 2020 alone, which is three times more than the same quarter in 2019.[5]  Almost half of physicians are now using telehealth to treat their patients in wake of COVID-19;: a thirty percent increase from 2018.[6]  Telemedicine will continue to grow beyond the pandemic and will make large contributions to the future of medicine.[7]  Healthcare providers and physicians will likely need to add telemedicine to their practices to meet the demands of the shifting industry.[8]  In order to implement and grow telehealth practices, healthcare providers must be aware of the legal issues that may arise.[9]

Telehealth regulations are controlled on a state-by-state basis, and each state has its own unique physician licensing laws.[10]  The general rule is that physicians have to be licensed to practice in the state that their patient is located while providing telehealth services.[11]  However, the Secretary of Health and Human Services (“HHS”) waived this requirement in response to COVID-19 in order to continue providing health services.[12]  The waiver has encouraged states to waive many of their telehealth regulations in accordance with the Center of Medicare and Medicaid Services’ guidance.[13] 

Forty-six states enacted waivers in accordance with the HHS policy allowing physicians to provide telehealth services across state lines, which dramatically increased access to healthcare.[14]  Telehealth usage was also increased via provisions of the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) which allows Medicare to reimburse additional telehealth services.[15]  HHS has temporarily relaxed Health Insurance Portability and Accountability (“HIPPA”) restrictions on the communication platforms that providers are allowed to use when facilitating telehealth appointments allowing more access to care.[16] 

Providers are currently allowed to use platforms such as Apple FaceTime, Google Hangouts or Zoom to conduct appointments which were not previously considered HIPPA compliant.[17]  Healthcare providers need to be wary though as HIPPA compliance relaxations, the CARES Act and the licensure waivers are only temporary and have expiration dates.[18]  For example, Pennsylvania’s licensure waiver expires as early as September 2020, while other states have waivers up to 30 days after the end of the COVID-19 emergency.[19] 

Currently, there is little guidance on how telehealth will be regulated after the pandemic.[20]  The American College of Physicians urges that the interstate licensure flexibility be extended or made permanent.[21]  Upon the expiration of the waivers issued, the abrupt transition to comply with old regulations could be incredibly disruptive to both healthcare providers and patients.[22] 

President Trump and many medical organizations are pushing for federal legislation to keep the relaxed telehealth and licensure regulations in place.[23]  President Trump issued an executive order to propose that provisions of the CARES Act pertaining to telehealth regulations be made permanent to increase access in the future.[24]  A bill was also introduced to Congress to make Congressional findings about the usage of telehealth during COVID-19 to help determine if telehealth Medicare expansions and licensure relaxations should become permanent.[25] 

The medical field has shown great support for the new telehealth regulations with many organizations actively lobbying for new legislation.[26]  HHS showed its support for telehealth expansions when it announced that $35 million in grants would be given to boost telehealth organizations in different facets of the healthcare field.[27]  With the uncertainty of the future of telemedicine regulations, healthcare providers need to pay close attention to their state regulations and monitor the progression of federal legislation to stay compliant while providing for their patients virtually.

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[1] Telehealth Implementation Playbook, Am. Med. Ass’n 1, 10 (2020), https://www.ama-assn.org/system/files/2020-04/ama-telehealth-playbook.pdf.

[2] Letter from Jacqueline Fincher, MD, MACP, Pres., Am. Coll. of Physicians, to Seema Verma, Admin., Ctr. for Medicare and Medicaid Serv. (June 2, 2020).

[3] Oleg Bestsennyy, Greg Gilbert, Alex Harris & Jennifer Rost, Telehealth: A Quarter-Trillion-Dollar Post-COVID-19 Reality?, McKinsey & Company (May 29, 2020), https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/telehealth-a-quarter-trillion-dollar-post-covid-19-reality#.

[4] Id.

[5] Jane Wester, Use of Telehealth Services Rising Amid Pandemic, But Long-Term Outlook is Less Clear, Globest (Aug. 25, 2020, 5:28 AM), https://www.globest.com/2020/08/25/use-of-telehealth-services-rising-amid-pandemic-but-long-term-outlook-is-less-clear/?slreturn=20200730145818.

[6] Survey: Physician Practice Patterns Changing as a Result of COVID-19, Merrit Hawkins (Apr. 22, 2020), https://www.merritthawkins.com/news-and-insights/media-room/press/-Physician-Practice-Patterns-Changing-as-a-Result-of-COVID-19/.

[7] Andrei Zimiles, Four New Statistics that Prove That Telemedicine Isn’t Just a Pandemic Fad, Medical Economics (July 8, 2020), https://www.medicaleconomics.com/view/four-new-statistics-that-prove-that-telemedicine-isn-t-just-a-pandemic-fad.

[8] Id.

[9] See J. Kelly Barnes, Telemedicine: A Conflict of Laws Problem Waiting to Happen-How Will Interstate and International Claims Be Decided?, 28 Houston J. Int’l L. 491, 524-525 (2006).

[10] See Telemedicine Policies: Board by Board Overview, Fed’n of State Med. Bd. 1, https://www.fsmb.org/siteassets/advocacy/key-issues/telemedicine_policies_by_state.pdf (last updated July 31, 2020).

[11] Id.

[12] Waiver or Modification of Requirements Under Section 1135 of the Social Security Act, Public Health Emergency (Mar. 13, 2020), https://www.phe.gov/emergency/news/healthactions/section1135/Pages/covid19-13March20.aspx.

[13] Id.

[14] See U.S. States and Territories Modifying Requirements for Telehealth in Response to COVID-19, Fed’n of State Med. Bd. 1, https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf (last updated Aug. 28. 2020).

[15] Medicare Telemedicine Health Care Provider Fact Sheet, Ctr. for Medicare & Medicaid Services (Mar. 17, 2020), https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.

[16] Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency, Health and Hum. Serv., https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html (last updated March 30, 2020).

[17] Id.

[18] Id; Public Health Emergency supra note 12; Fed’n of State Med. Bd., supra note 13.

[19] Fed’n of State Med. Bd., supra note 13, at 14.

[20] Wester, supra note 5.

[21] Letter from Jacqueline Fincher, supra note 2.

[22] Id at 1-2.

[23] Exec. Order No. 13941, 85 Fed. Reg. 47881, 47882 (Aug. 6, 2020); Eric Wicklund, Telehealth Advocates Launch Task Force to Lobby for Permanent Policy Changes, mHealth Intelligence (June 18, 2020), https://mhealthintelligence.com/news/telehealth-advocates-launch-task-force-to-lobby-for-permanent-policy-changes.

[24] Exec. Order No. 13941, 85 Fed. Reg. at 47882.

[25] Knowing the Efficiency and Efficacy of Permanent Telehealth Options Act of 2020, H.R. 7233, 116^th Cong. (2020).

[26] Wicklund, supra note 22.

[27] HHS Awards Over $35 Million to Increase Access to High Quality Health Care in Rural Communities, Health & Hum. Serv. (Aug. 20, 2020), https://www.hhs.gov/about/news/2020/08/20/hhs-awards-over-35-million-to-increase-access-to-high-quality-health-care-in-rural-communities.html.

THE EMERGENCE OF ESPORTS AND THE BARRIERS TO UNIONIZATION

By: Peter Wilms

One year ago, on August 25^th, 2019, two eSport teams competed against each other in the 2019 DOTA 2 International Championship for the first-place prize of 15 million dollars.[1] In November 2019, the League of Legends World Championship gathered over 100 million online viewers.[2] A community once obscured has transformed into a billion-dollar industry.[3] These competitors, now considered athletes, are venturing outside their virtual world now look to enter the realm of unionization.[4]

The history of the term “eSports” is broadly used to describe the entire field of professional videogame playing.[5] Similar to how the term “sports” describes the games of football, soccer, baseball, and more, the term “eSports” describes the different videogames, such as League of Legends, Counter-Strike, Fortnite, and many others.[6] Just as the MLB, NFL and other sport organizations require their own individual players associations, each videogame organization would require the same individualized unionization.[7]

Each eSport, unlike each regular sport, is controlled under the iron fist of the game’s developer, who naturally owns full rights to the intellectual property of the game.[8] This gives game developers great sway in employee contracts, as well as the power to decide which sponsors to allow, who to offer media rights to, and how to allocate ticket revenue.[9] Developers also utilize 17 U.S.C Section 106 to control the creation of leagues and tournaments. This gives them the power to control the competitive scene as both intellectual property owners, and league organizers, while maintaining greater control over player contracts.[10]

ESport players immediately encounter a roadblock in the path to unionization. The National Labor Relations Board has made it clear that independent contractors are not covered by the National Labor Relations Act. Therefore, the right to unionize given to workers classified as employees, is not shared with workers classified as independent contractors.[11] Employees typically work for a set hourly, weekly, or monthly wage, and assigned specific work hours, while independent contractors are hired for a set project and can sub-contract parts of their job to other contractors.[12] ESport players are not easily placed into either category, so fighting for a proper classification is paramount as a first step towards equal bargaining power.[13]

The creation of a player’s association or union may give players many benefits, such as increased bargaining power in employment contracts, protections of the right to strike, and job security in a currently nonsecure field.[14] Conversely, players would also put themselves at risk for the implementation of a collectively bargained salary cap, severely limiting the monetary advantage that comes with being a top performer in the field.[15]

In the current state of eSports, young and unexperienced players are often unfamiliar with the skills needed to successfully negotiate their contract and protect themselves from possible exploitation.[16] Evidently, these players run into many problems which are traditionally fixed with the creation of a player’s association or union.[17] However, they first need to find the answer to the question, is it possible, or even practical, to unionize.[18] Players will then reach the same issues as any other industry that attempts to unionize: Do players even want to form a union and do the potential benefits of a union outweigh the potential drawbacks?[19] The industry of eSports is still emerging and the increased flow of players, viewers, and financial supporters will only increase the likelihood of legal challenges and questions of unionization in the upcoming years.[20]

[1] Kevin Webb, A $33 Million Esports Tournament, Business Insider (Aug. 15, 2019) , https://www.businessinsider.com/the-international-9-dota-2-tournament-prize-pool-schedule-teams-2019-8.

[2] Kevin Webb, More Than 100 Million People, Business Insider (Dec. 18, 2019), https://www.businessinsider.com/league-of-legends-world-championship-100-million-viewers-2019-12.

[3] Hilary Russ, Global Esports Revenues, Reuters (Feb. 12, 2019), https://www.reuters.com/article/us-videogames-outlook-idUSKCN1Q11XY.

[4] Harris Peskin, Unionization in Esports, Esports Bar Ass’n J., (Oct. 2019), https://esportsbar.org/journals/2019/9/11/unionization-in-esports.

[5] Id..

[6] Id.

[7] Id.

[8] 17 U.S.C. § 106 (2018).

[9] Jason Krell, Esports Players Facing Questions of Whether to Unionize, Global Sport Matters, (Dec. 18, 2019) https://globalsportmatters.com/business/2019/12/18/organizing-esports-unions-requires-education-about-economics-and-history/.

[10] Harris Peskin, Unionization in Esports, Esports Bar Ass’n J., (Oct. 2019), https://esportsbar.org/journals/2019/9/11/unionization-in-esports.

[11] Frequently Asked Questions – NLRB, National Labor Relations Board, https://www.nlrb.gov/resources/faq/nlrb (last visited Aug. 23, 2020).

[12] Ferguson Mitchell, Esports Primer: Understanding Independent Contractors vs. Employees, Esports Observer, (Jan. 21, 2016) https://esportsobserver.com/esports-primer-understanding-independent-contractors-vs-employees/.

[13] Michael Arin, Esports & Employment After Dynamex, Esports Bar Ass’n J., (Oct. 2019), https://esportsbar.org/journals/2019/10/esports-and-employment-after-dynamex.

[14] Harris Peskin, Unionization in Esports, Esports Bar Ass’n J., (Oct. 2019), https://esportsbar.org/journals/2019/9/11/unionization-in-esports.  

[15] Id.

[16] Katherine E. Hollist, Time to be Grown-Ups About Video Gaming: The Rising ESports Industry and the Need for Regulation, 57 Ariz. L. Rev. 823, 846 (2015)
[17] Id.

[18] See Roshan Patel, ESports, Player Positions, and the Benefits of Unionization, 18 Duke L. & Tech. Rev. 233, 247-48 (2020).

[19] See Id.

[20] Id.

Rizo v. Yovino: Say Goodbye To The Past

By: Kiran Ahmad

The Ninth Circuit Court recently prohibited the use of prior salary information as a defense to equal pay claims in Rizo v. Yovino.[1]  This case involved Aileen Rizo, a female math consultant at a high school hired by the Fresno County Office of Education.[2] The County calculated salaries by using a schedule that factored in prior salary and any advanced degrees acquired.[3]

In 2012, Rizo learned that a male colleague who was also a math consultant was being paid $79,088 while she was only being paid $62,133, plus an additional $600 for master’s degree, despite having more education and experience.[4] In fact, Rizo was paid less than all of the male math consultants at the school.[5] Upon notifying the Human Resources department, Ms. Rizo was informed that her pay was based on the schedule that factors in her salary history.[6] 

            Since 1982, the Ninth Circuit has recognized salary history as a method of determining wages without offending the Equal Pay Act.[7] The EPA’s language includes an exception that allows difference in payments to male and female employees if they are based on “factors other than sex”.[8] The holding in Rizo declares that salary history is no longer a valid “factor other than sex” that can be used as a defense to an equal pay claim.[9] The Court agreed with Rizo’s contention that allowing prior salaries to be used to determine current salaries will allow for the perpetual pay disparities between men and women.[10]

The Ninth Circuit is the only circuit court to declare that prior salary cannot be considered at all when determining current salaries. Even the concurrences from the Ninth Circuit’s decision believed that prior salary should be allowed to be used as a factor but not the sole factor in determining salaries.[11] The Second, Tenth, and Eleventh Circuits have shied away from making a decision as the Ninth Circuit has and instead treats prior salary as an excluded “factor other than sex” but has not outright held as such.[12] 

            The Supreme Court will not be of any help when it comes to providing clarity. The Court addressed this case in 2019 when it vacated the Ninth Circuit’s judgment because the decision counted Judge Reinhardt’s vote despite passing eleven days prior to the publishing of the opinion.[13] Without Judge Reinhardt’s vote, there was no majority and thus the decision was vacated.[14] In February of 2020, Rizo was revived by the Ninth Circuit and again ruled that prior salary is not to be considered a “factor other than sex”.[15] The County appealed to the Supreme Court again and the appeal was denied.

            Without a ruling from the Supreme Court, there is an evident split amongst the circuits. Employers must now be cognizant of which area they are in and tailor their salary determination practices to the relevant law.[16] Some states have statutes that ban prior salary as a factor in salary consideration, which makes it increasingly complicated for the employer.[17] Regardless, this may be the beginning of a trend toward more decisions that limit what qualify as “factors other than sex” and strengthen the enforcement of the Equal Pay Act.

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[1] Rizo v. Yovino, 950 F.3d 1217, 1219 (9^th Cir. 2020).

[2] Id. at 1220.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982).

[8] Id. at 875.

[9] Rizo v. Yovino, 950 F.3d at 1219.

[10] Id. at 1228.

[11] Erin Connell, Ninth Circuit Issues A Second En Banc Decision Regarding Prior Salary Considerations In Rizo v. Yovino Re-Do, JD Supra (Mar. 5, 2020), https://www.jdsupra.com/legalnews/ninth-circuit-issues-a-second-en-banc-68595/.

[12] Id.

[13] Yovino v. Rizo, 139 S. Ct. 706 (2019).

[14] Id. at 710.

[15] Rizo v. Yovino, 950 F.3d at 1219.

[16] Gary D. Friedman, New Questions For Employers Defending Equal Pay Act Suits, Weil (May 7, 2020). https://www.weil.com/articles/new-questions-for-employers-defending-equal-pay-act-suits.

[17] Id.