California’s Constitutional Affirming of Proposition 22: A Catch-22 for Uber Drivers

By: Rochelle Podolsky

On Monday, March 13, 2023, the California Court of Appeals ruled that Proposition 22 – a Californian constitutional amendment popularly ratifying Uber drivers as independent contractors – is largely constitutional.^[1] As a result, Uber and Lyft drivers now are treated as independent contractors rather than traditional employees.^[2] 

How did we get here?  

California has battled the classifications of workers since 2018 when the California Supreme Court established a new standard for what classified as an independent contractor.^[3] Following such, a battle arose between the adversarial sides of labor and business through a 2020 ballot measure that allowed Uber, Lyft, and other platforms to classify their workers as independent contractors rather than employees.^[4] In other words, Proposition 22 is a voter-approved law.^[5] It passed with 58% of the vote in November 2020.^[6]

How does this effect employees’ rights in California? 

This change in the law greatly affects workers’ rights.^[7] It is supported by powerful corporations in California.^[8]This is because there is a vast difference between employees and contractors: employees have the right to a host of benefits and protections like minimum wage, sick leave, and family leave, unemployment, and disability benefits among others, while independent contractors do not have these same rights.^[9] However, this ruling’s effects are not limited to the drivers themselves.

If Uber and Lyft do not have to contribute as many benefit packages to their drivers, other industries that try to hire the same workers will have newfound wage competition. Some argue that the “system is broken” because of this decision.^[10] They further argue that this decision drastically undercuts and restrains the initiative power of California voters.^[11] Many argue that this decision may not be the final mark as the Service Employees International Union could still appeal to the California Supreme Court.^[12]

How does this compare to New York? 

            As of 2020 in the wake of the COVID-19 pandemic, Uber drivers in upstate New York were treated as employees for purposes of securing unemployment insurance.^[13] This followed a decision from the NLRB in 2019 concluding that Uber drivers are contractors and not employees.^[14] Although the NLRB made this ruling, the New York Unemployment Insurance Appeal Board in April 2019 ruled that Uber was required to pay unemployment benefits for its drivers.^[15]

            The New York decision in Matter of Lowry (Uber Tech., Inc.—Commissioner of Labor), 138 N.Y.S.3d 238 (N.Y. App. Div. 2020) from the Third Department affirmed this appeals board ruling.^[16]  The Court found a clear employment relationship between Uber and its drivers because of the required documentation drivers must provide to Uber including a driver’s license, background checks, driving history checks, and a confirmation that the driver’s vehicle is less than fifteen years old.^[17] The Court additionally held that the fare calculation and payment structure supports an employment relationship.^[18]  While this decision was noteworthy for the rights of Uber drivers, it was limited to upstate New York.^[19]  This uncertainty leaves open the possibility of a constitutional amendment like that of California. The recent momentum of the California appellate division may encourage lobbying in New York and other states to adopt this popularly voted amendment. 

---

^[1] See Grace Gedye, Court Upholds California Prop. 22 in Big Win for Gig Firms Like Lyft and Uber, Cal Matters (Mar. 13, 2023), https://calmatters.org/economy/2023/03/prop-22-appeal.

^[2] See id.

^[3] See id.

^[4] See id.

^[5] See California Court Says Uber, Lyft Can Treat State Drivers as Independent Contractors, NPR (Mar. 14, 2023), https://www.npr.org/2023/03/14/1163301631/california-court-says-uber-lyft-can-treat-state-drivers-as-independent-contracto.

^[6] See Gedye, supra note 1.  

^[7]  Id.

^[8] Id.

^[9] See id.

^[10] See id.

^[11] See id (quotations omitted).

^[12] See id.

^[13] See Are Uber Drivers Employees in New York?, Her Law. (May 3, 2020), https://herlawyer.com/uber-drivers-employees-new-york.

^[14] See Noam Scheiber, Uber Drivers Are Contractors, Not Employees, Labor Board Says, N.Y. Times (May 14, 2019), https://www.nytimes.com/2019/05/14/business/economy/nlrb-uber-drivers-contractors.html.

^[15] Matter of Lowry (Uber Tech., Inc.—Comm’r of Lab.), 138 N.Y.S.3d 238, 239 (N.Y. App. Div. 2020).

^[16] Id. at 240. 

^[17] See Miheret Hasenu, From Independent Contractors to Employees: New York Supreme Court Rules in Favor of Uber Drivers, Working Sols. (Jan. 25, 2021), https://www.workingsolutionsnyc.com/blog/from-independent-contractors-to-employees-new-york-supreme-court-rules-in-favor-of-uber-drivers.

^[18] See id. 

^[19] See id.

Advertisement

WARN(ing): Mass Layoffs Effecting Tech, BigLaw, and Other Sectors Lead to Federal Lawsuits

By: Brian Joseph

United Furniture Industries, once hailed as one of the largest furniture manufacturers in the United States,^[1] terminated nearly 3000 employees, some via text-messages, on November 21, 2022.^[2]  Jimmy Herring, a former employee of United Furniture, received a text message at 11:56 PM while he was asleep, and a day or two later realized that he had received his “digital pink slip” signifying the end of his employment.^[3]  This abrupt layoff led to several lawsuits being filed in federal court alleging that United Furniture violated the Worker Adjustment and Retraining Notification (“WARN”) Act.^[4]  Today, lawsuits under the WARN Act have begun to increase following an influx of mass layoffs that have cut across various sectors in response to over hiring that occurred during the peak of the Covid-19 pandemic.^[5]

            To understand the basis of these law suits it is important to understand the history and operative parts of the WARN Act of 1988.^[6]  Established to address the economic effects that accompany layoffs, Congress enacted the WARN Act as way to give protection to workers in the event of mass layoffs.^[7]  More specifically it states that “[a]n employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order[.]”^[8]  If an employer has 100 or more employees, they fall under the purview of the WARN Act, according to the Department of Labor.^[9]  While some exemptions exists as it pertains to applicability of the WARN Act,^[10] the Act’s main purpose is to provide recourse for employees to pursue remedy via private lawsuits in federal court.^[11]

            In October of 2022, when Elon Must took over Twitter and began to layoff employees, those former employees sued Twitter alleging violation of the WARN Act.^[12]  It is also worth noting that a class action suit was brought on behalf of former Tesla employees earlier that year when they alleged that the company had laid off workers without requisite notice prior to terminating over 500 employees within Tesla’s factories.^[13]

            These high-profile cases are not outliers in the current job-market climate, with other companies navigating the requirements of the WARN Act to protect themselves from lawsuits and liability.^[14]  Former employees of companies such as Bed Bath & Beyond, as recent as March 23, 2023, continue to bring lawsuits alleging violations of the WARN Act.^[15]

            Additionally, Big Law firms such as Cooley, who have been amongst several large firms who have conducted mass layoffs due to the over hiring that occurred during the pandemic, have managed to circumvent liability under the WARN Act.^[16]  By rolling out a two-phase plan to address and conduct a decrease of their workforce, Cooley was able to carefully analyze liability under the WARN Act and conduct layoffs that “did not trigger the act.”^[17]  

            While several companies within the American job-market continue to try to course correct from over hiring, it is likely that there will to be more federal lawsuits under the WARN Act.^[18]  It is important for companies to take the same approach that Cooley has, which involved analyzing their liability prior to conducting layoffs,^[19] to ensure a balance between protecting the company as well as protecting former employees who will soon be thrust back into the job-market arena.

---

^[1] See Haley Chouinard, What to Know About the Collapse of United Furniture, Business of Home (2022), https://businessofhome.com/articles/what-to-know-about-the-collapse-of-united-furniture.

^[2] Id.

^[3] Kate Briquelet, United Furniture Industries Fired Thousands via Text, Email as They Slept, The Daily Beast (Nov. 27, 2022, 4:14 AM), https://www.thedailybeast.com/mississippi-based-furniture-company-united-furniture-industries-fires-2700-workers-via-text-and-email.

^[4] See Guy Lucas, Laid-Off Workers Sue United, Yahoo News (Nov. 26, 2022), https://news.yahoo.com/laid-off-workers-sue-united-075000840.html.

^[5] See Brody Ford, Mass Tech Layoffs Unwind Only About a Year of Pandemic Hiring, Bloomberg (Jan. 19, 2023, 7:00 AM), https://www.bloomberg.com/news/newsletters/2023-01-19/tech-layoffs-microsoft-amazon-still-bigger-than-before-covid.

^[6] See Worker Adjustment and Retraining Notification, 29 U.S.C. §2102 (2018).

^[7] Tonya M. Cross, Failure to WARN: A Proposal that the WARN Act Provide a Compensatory, Make-Whole Remedy for UnWARNed Employees, 40 San Diego L. Rev. 711, 714 (2003).

^[8] §2102.

^[9] Plant Closings and Layoffs, U.S. Dept. of Labor, https://www.dol.gov/general/topic/termination/plantclosings (last visited March 25, 2023).

^[10] See Laura B. Bartell, Why WARN? – The Worker Adjustment and Retraining Notification Act in Bankruptcy, 18 Banker Dev. J. 243, 250 (2002) (discussing the three main mechanisms that limit the applicability of the WARN Act).

^[11] See Catherine Ferris, What Is the WARN Act and What Does It Have to Do With the Twitter Layoffs?, Newsweek (Nov. 4, 2022, 4:45 PM), https://www.newsweek.com/warn-act-have-do-twitter-layoffs-1757119.

^[12] See Id.

^[13] Jon Brodkin, Lawsuit: Tesla Broke US Law by Not Providing 60-Day Notice Before Mass Layoff, Ars Technica (June 21, 2022, 3:47 PM), https://arstechnica.com/tech-policy/2022/06/lawsuit-tesla-broke-us-law-by-not-providing-60-day-notice-before-mass-layoff/.

^[14] See Natalie Campisi, What’s The WARN Act and Why Is Twitter Being Sued For Violating It?, Forbes (Nov. 23, 2022, 6:39 AM), https://www.forbes.com/advisor/personal-finance/what-is-the-warn-act/ (providing a look at the “renewed interest” in the WARN Act).

^[15] See John Woolley, Bed Bath & Beyond Sued Over Layoffs, Alleged WARN Act Violations, Bloomberg Law (March 24, 2023, 6:11 PM), https://www.bloomberglaw.com/bloomberglawnews/class-action/X6QB8SB0000000?bna_news_filter=class-action#jcite (outlining the class action lawsuit initiated by a former employee who is initiated action under both federal and state WARN Act provisions against Bed Bath & Beyond).

^[16] See Dan Roe, Cooley Skirts WARN Act, Offers Severance Packages Benefiting Junior Associates Over Seniors and Staff, The American Lawyer(Dec. 7, 2022, 4:12 PM) https://www.law.com/americanlawyer/2022/12/07/cooley-skirts-warn-act-offers-severance-packages-benefiting-junior-associates-over-seniors-and-staff/.

^[17] Id.

^[18] See Campisi, supra note 14 (recognizing that employers will start to plan around the WARN Act so they “don’t get slapped with heavy fines.”).

^[19] See Roe, supra note 16.

Save America’s Pastime Act: A Congressionally Sanctioned System of Unfair Pay and Worker Standards for Baseball’s Future Stars

By: Adam Jones

Baseball’s connection with federal law is unique and spans well over a century,^[1] as the sport’s long-standing presence as “America’s Pastime” has led to run-ins with various areas of the law.^[2] The Save America’s Pastime Act,^[3] originally proposed in 2016 and later ratified as a part of Congress’ spending bill in March of 2018,^[4] has since served to continue this interplay between baseball and the country’s legislators. In pertinent part, the act amends the Fair Labor Standards Act (“FLSA”)^[5] to read that:

[A]ny employee employed to play baseball who is compensated pursuant to a contract that provides for a weekly salary for services performed during the league’s championship season (but not on spring training or the off season) at a rate that is not less than a weekly salary equal to the minimum wage under section 6(a) for a workweek of 40 hours, irrespective of the number of hours the employee devotes to baseball related activities.^[6]

In practical effect, the amendment rewrites federal labor law to “exempt [minor] league baseball players from the federal minimum wage and rules around overtime pay”.^[7]

The bill, lobbied for by Major League Baseball (“MLB”) ownership and politicians with close connections to the league,^[8] was adopted into law in response to increasing Minor League Baseball (“MiLB”) players’ complaints surrounding their wages and working conditions.^[9] As of 2022, MiLB players were paid anywhere between $4,800 – $14,700 annually, with the high-end of that scale still being below the federal minimum wage mark of $15,080.^[10] The Save America’s Pastime Bill has only contributed to an already pervasive system of labor inequity, as MiLB players report their need to skip meals, take on multiple jobs, and sleep on each other’s floors to make ends meet financially.^[11]

The value that MiLB players bring their organizations, communities, and their locale’s economies is without question.^[12] Because MiLB teams are typically located in smaller, less economically active cities than major league teams, they tend to affect their communities more significantly in comparison to their MLB counterparts.^[13] So, if these players are making their franchises large profits and improving the localities that they are located, it must be asked why a bill that greatly inhibits their ability to survive financially would ever be written, let alone passed into law. Simply put, the bill has come about to save franchise owners money in whatever way possible.^[14] Because teams are no longer subject to the FLSA in regard to the wages they are required to pay players, teams have already begun paying MiLB players even less than before,^[15] all while being insulated from player’s complaints who now have no standing to sue.^[16]

Federal minimum wage is not the only standard which MLB owners want to be exempt from in regard to their MiLB prospects labor rights, however. Just this month, the league began lobbying Florida Governor Ron DeSantis and the state’s legislators to “let team owners pay their minor league players less than [the state] minimum wage”.^[17] MLB’s lobbying will assuredly not stop at Florida’s borders, as the league will presumably seek to convince as many states as would be financially beneficial for its bottom dollar. The league’s connection to unfair labor practices extends far beyond the wages of MiLB players,^[18] but in can be argued that the Save America’s Pastime Act serves as one of that sample size’s most notable moral labor violations. While there are no proposed fixes on the horizon, pro-labor policies would lean toward such incumbrances being rid of or, at the very least, rehashed by the country’s legislature.

---

^[1] See, e.g., Mitchell Nathanson, The Sovereign Nation of Baseball: Why Federal Law Does Not Apply to America’s Game and How It Got That Way, 16 Jeffrey S. Moorad Sports L.J. 49 (2009).

^[2] See id.

^[3] Save America’s Pastime Act, Pub. L. No. 115-141, 132 Stat. 1126 (2018).

^[4] See Whitney McIntosh, How Congress screwed over Minor League Baseball players, explained, SBNation.com (Mar. 23, 2018 7:30 AM), https://www.sbnation.com/mlb/2018/3/23/17152778/spending-bill-minor-league-baseball-explained-save-americas-pastime.

^[5] See Fair Labor Standards Act of 1938, 29 U.S.C. 201.

^[6] Save America’s Pastime Act, Pub. L. No. 115-141, 132 Stat. 1126 (2018).

^[7] See The Uncertain Hour staff, What is the “Save America’s Pastime Act”?, Marketplace.org (Mar. 17, 2021), https://www.marketplace.org/2021/03/17/what-is-the-save-americas-pastime-act/.

^[8] See McIntosh, supra note 4.

^[9] See Miranda v. Selig, 860 F.3d 1237; see R.J. Anderson, MLB to pay $185 million to settle federal class-action lawsuit filed by minor-league players, CBS Sports: MLB (Aug. 30, 2022, 12:37 PM), https://www.cbssports.com/mlb/news/mlb-to-pay-185-million-to-settle-federal-class-action-lawsuit-filed-by-minor-league-players-per-report/#:~:text=A%20judge%20has%20approved%20a,Cooper.

^[10] See Lyndon Suvanto, Baseball Contracts: How Much Does a Minor League Baseball Player Make in 2022? (last modified Oct. 26, 2022 9:30 PM), https://www.sportskeeda.com/baseball/how-much-does-minor-league-baseball-player-make-2022#:~:text=As%20previously%20mentioned%2C%20MiLB%20players,Federal%20Minimum%20Wage%20of%20%247.50.

^[11] See Matthew VanTryon, Would minimum wage damage minor league baseball?, USA Today (last updated Aug. 31, 2016 7:23 PM), https://www.usatoday.com/story/sports/2016/08/31/would-minimum-wage-damage-minor-league-baseball/87746120/.

^[12] See Nola Agha, The Economic Impact of Stadia and Teams: The Case of Minor League Baseball, 14 J. Sports Econ. 227-252 (2013).

^[13] See Simon Medcalfe, Study suggests minor league teams have major economic impact, The Augusta Chronicle (July 22, 2017 6:34 PM), https://www.augustachronicle.com/story/opinion/columns/2017/07/22/study-suggests-minor-league-teams-have-major-economic-impact/14254881007/.

^[14] See McIntosh, supra note 4.

^[15] See Alex Brown, Baseball Players Press Lawmakers for Minor League Labor Standards, Pew Trusts (Mar. 30, 2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/03/30/baseball-players-press-lawmakers-for-minor-league-labor-standards.

^[16] See Mike DeBonis, Spending bill could quash Minor League Baseball players’ wage claims, The Wash. Post (Mar. 18, 2018 10:26 PM), https://www.washingtonpost.com/powerpost/spending-bill-could-quash-minor-league-baseball-players-wage-claims/2018/03/18/d31cd76e-2b0a-11e8-8ad6-fbc50284fce8_story.html.

^[17] Jason Garcia, Major League Baseball wants Ron DeSantis and the Legislature to carve minor league players out of Florida’s minimum wage, Seeking Rents: Jason Garcia Substack (Feb. 28, 2023), https://jasongarcia.substack.com/p/major-league-baseball-wants-ron-desantis.

^[18] See Nathanson, supra note 1.

Uncovering the Legal Ambiguity and Ethical Implications of Child Influencer Labor Laws

By: Gillian Joyce

The emergence of new “influencer” careers are due to the increasing prominence of social media has a direct impact on labor laws.^[1]  Influencers are individuals who earn profits from posting content, such as videos, photos, and blogs, to their social media platforms.^[2]  However, it’s not just adults who are earing revenue through social media.^[3]  A growing number of children are also participating in this trend, either through their own accounts or their parents’ accounts.^[4]  The rise of child influencers introduces a novel concern that falls under the purview of child labor law safeguards.^[5]  

The concern regarding child influencers is not insignificant, given that some children “earn upwards of $29 million each year.”.^[6]  Complex issues arise when parents profit from the content of their children.^[7]  Child influencers can be compared to child entertainers, or child actors, as they do not receive full labor law protection.^[8]  Currently, “federal child labor law generally prohibits employment of minors… under the age of 14, restricts the hours and types of work that can be performed… and prohibits the employment of minors… in any hazardous occupation.”^[9]  However, these federal laws do not apply to the entertainment industry, and the responsibility of regulating child entertainers falls on individual states.^[10]  

Child labor laws differ significantly between states, with certain states having minimal legislative safeguards in place, while others have established comprehensive legal frameworks, commonly known as Coogan Laws,^[11], to safeguard child actors.^[12]  However, influencers are not subject to the same labor laws as child entertainers, and the Coogan laws do not extend to children profiting from social media.^[13]  Thus, child influencers in the United States do not currently possess any legal entitlement to the earnings generated from their involvement in social media.^[14]  This creates a substantial risk of financial, physical, and psychological exploitation for these children.^[15]

Generally, child labor laws prohibit the employment of children under a certain age or limit the number of hours they can work in a day or week.^[16]  However, since child influencers are not protected under these laws, they will often go overlooked.^[17]  Social media influencing can require a significant amount of time and effort, including creating content, managing social media accounts, and engaging with followers.^[18]  If a child is spending a substantial amount of time and effort on social media influencing for their parents’ financial gain, it could be considered child labor if the child is not of legal working age or is working more hours than allowed under the law.^[19]

Further, child labor laws often require that children be paid a minimum wage and receive certain benefits, such as overtime pay and workers compensation.^[20]  If a child’s social media presence is creating revenue for their parents, it is likely that they are not receiving these protections since no law expressly requires it, and there is no one to monitor it.^[21]

Children must be protected from this media exploitation.^[22]  Thus, new legislation must be enacted to protect these child influencers from financial exploitation, psychological harm, and unsafe working conditions.^[23]  Protection for child influencers may be accomplished by broadening the scope of the Coogan law.^[24]  Ultimately, the key to addressing the intersection of child labor and social media is to promote greater awareness and understanding of these issues.^[25] By educating parents, employers, and policymakers about the risks and challenges involved, we can work together to create a safer and more secure environment for children, both online and offline.^[26] This will require a multifaceted approach that takes into account the needs and interests of all stakeholders, and that is grounded in a commitment to fairness, respect, and human dignity.^[27]

---

^[1] See Marina A. Masterson, When Play Become Work: Child Labor Laws in the Era of “Kidfluencers”, 169 U. Pa. L. Rev. 557 (2020). 

^[2] See Werner Geyser, What is an Influencer?- Social Media Influencers Defined, Influencer Marketing Hub, https://influencermarketinghub.com/what-is-an-influencer/ (last Updated Mar. 24, 2023). 

^[3] See Madyson Edwards, Children are Making it Big (For Everyone Else): The Need for Child Labor Laws Protecting Child Influencers, Tex. Tech U. Sch. L., Feb. 9, 2023, at 2, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4351827.

^[4] See id.

^[5] See Munirat Suleiman, Is Kid Influencing Child Labor?: How the Youngest Influencers Remain Legally Unprotected, Colum. Undergraduate L. Rev. (June 16, 2022), https://www.culawreview.org/journal/is-kidfluencing-child-labor-how-the-youngest-influencers-remain-legally-unprotected.

^[6] See Madyson Edwards, Children are Making it Big (For Everyone Else): The Need for Child Labor Laws Protecting Child Influencers, Tex. Tech U. Sch. L., Feb. 9, 2023, at 2, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4351827.

^[7] See id. 

^[8] See Munirat Suleiman, Is Kid Influencing Child Labor?: How the Youngest Influencers Remain Legally Unprotected, Colum. Undergraduate L. Rev. (June 16, 2022), https://www.culawreview.org/journal/is-kidfluencing-child-labor-how-the-youngest-influencers-remain-legally-unprotected.

^[9] Child Labor: Children Have Rights, Worker.gov, https://www.worker.gov/child-labor-wages/#:~:text=Federal%20child%20labor%20law%20generally,18%20in%20any%20hazardous%20occupation (last visited Mar. 31, 2023). 

^[10] See Melody Burke, New Child Labor Laws Needed to Protect Child Influencers, On Labor (Apr. 27, 2022), https://onlabor.org/new-child-labor-laws-needed-to-protect-child-influencers/.

^[11] See Loring Weisenberger, A producer’s Guide to Coogan Law, Wrapbook (July 28, 2022), https://www.wrapbook.com/blog/producers-guide-coogan-law#:~:text=The%20Jackie%20Coogan%20Law%20ensures,the%20child%20reaches%20legal%20maturity (“The Jackie Coogan Law ensures the financial well-being of child actors by mandating that their employer set aside 15% of the child actor’s gross earnings in a Coogan Trust Account, where it can be monitored – but not withdrawn – by a legal guardian until the child reaches legal maturity.”).

^[12] See Melody Burke, New Child Labor Laws Needed to Protect Child Influencers, On Labor (Apr. 27, 2022), https://onlabor.org/new-child-labor-laws-needed-to-protect-child-influencers/; See also Coogan Law, Sag Aftra, https://www.sagaftra.org/membership-benefits/young-performers/coogan-law (last visited Mar. 31, 2023) (explaining that California, New York, Illinois, Louisiana, and New Mexico all require Coogan Accounts for minors in the entertainment history). 

^[13] See id.; Coogan Accounts: Protecting Your Child Star’s Earnings, Morgan Stanley: The Yellowstone Group, https://advisor.morganstanley.com/the-yellowstone-group/articles/global-sports-and-entertainment/protecting-your-child-star-s-earnings (last visited Mar. 31, 2023). 

^[14] See Madyson Edwards, Children are Making it Big (For Everyone Else): The Need for Child Labor Laws Protecting Child Influencers, Tex. Tech U. Sch. L., Feb. 9, 2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4351827.

^[15] See id.

^[16] Child Labor: Children Have Rights, Worker.gov, https://www.worker.gov/child-labor-wages/#:~:text=Federal%20child%20labor%20law%20generally,18%20in%20any%20hazardous%20occupation (last visited Mar. 31, 2023). 

^[17] See Zoha Qamar, Why ‘Kidfluencers’ Have so Few Protections- Even as Americans Support Regulating the Industry, FiveThirtyEight (Jan. 3, 2023), https://fivethirtyeight.com/features/why-kidfluencers-have-so-few-protections-even-as-americans-support-regulating-the-industry/.

^[18] See Madyson Edwards, Children are Making it Big (For Everyone Else): The Need for Child Labor Laws Protecting Child Influencers, Tex. Tech U. Sch. L., Feb. 9, 2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4351827.

^[19] See id.

^[20] Child Labor: Children Have Rights, Worker.gov, https://www.worker.gov/child-labor-wages/#:~:text=Federal%20child%20labor%20law%20generally,18%20in%20any%20hazardous%20occupation (last visited Mar. 31, 2023). 

^[21] See Madyson Edwards, Children are Making it Big (For Everyone Else): The Need for Child Labor Laws Protecting Child Influencers, Tex. Tech U. Sch. L., Feb. 9, 2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4351827.

^[22] See Olivia Teare, New Labor Laws are Needed to Protect Child Influencers, The Fordham Ram (Nov. 16, 2022), https://thefordhamram.com/88697/opinion/new-labor-laws-are-needed-to-protect-child-influencers/.

^[23] See Madyson Edwards, Children are Making it Big (For Everyone Else): The Need for Child Labor Laws Protecting Child Influencers, Tex. Tech U. Sch. L., Feb. 9, 2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4351827.

^[24] See Melody Burke, New Child Labor Laws Needed to Protect Child Influencers (Apr. 27, 2022), https://onlabor.org/new-child-labor-laws-needed-to-protect-child-influencers/; See also Coogan Law, Sag Aftra, https://www.sagaftra.org/membership-benefits/young-performers/coogan-law (last visited Mar. 31, 2023).

^[25] See id.

^[26] See id. 

^[27] See id. 

Content Moderators: Your Worst Nightmare is Their 9-5

By Alexandra Licitra

It is no secret that the internet has a dark side. One would be hard-pressed to find a regular user who has never stumbled upon some form of disturbing content they wish could be scrubbed from their memory. Now, imagine being exposed to such content for eight or more hours each day. This is the reality for a discreet labor force known as content moderators—the workers who review and remove harmful content from online platforms.^[1]

A content moderator’s job is essentially to make the internet a safer space for users. In doing so, however, they also perform an indispensable function for social media companies, most of which have established community guidelines that proscribe things like hate speech, violence, and nudity.^[2] When questionable content is flagged, a content moderator must review it to determine whether it violates the company’s guidelines.^[3] If so, they are responsible for removing it.^[4]Thus, content moderation is the key to creating a safe user experience. Without it, platforms like Facebook, TikTok, and Instagram would be unable to enforce their guidelines, and their digital ecosystems would likely descend into chaos.

Content moderation also promotes advertisement—the lifeblood of all social media platforms—by protecting brands from being associated with inappropriate content.^[5] Considering that Facebook brought in over twenty-eight billion dollars in advertising revenue in 2021 alone, one might expect that content moderation is a highly valued role.^[6]Ironically, despite its significant relationship to advertising, it is typically outsourced to third-party contracting companies, often in foreign countries, to minimize labor costs and limit companies’ liability exposure.^[7]

            Content moderators do not receive adequate support from the companies that benefit from their services.^[8] First, whether they work in the United States or abroad, a content moderator’s income pales in comparison to that of an average big tech employee.^[9] Those that work in the United States are likely to make minimum wage.^[10] In other countries where labor is cheap, the pay can be less than two dollars per hour.^[11] Direct employees of big tech companies, by contrast, commonly earn six-figure salaries.^[12]

In addition to being under-compensated, the work is highly stressful.^[13] With productivity and accuracy as the key metrics used to assess job performance, moderators face pressure to watch more disturbing content than they may have the psychological capacity to cope with.^[14] Moreover, the software moderators are provided with to do their job is often outdated and less efficient than it should be because companies do not allocate sufficient resources to improve it.^[15] As a result, workers may be spending longer than necessary viewing harmful content, which exacerbates the stress they suffer on the job.^[16]

Unsurprisingly, many moderators experience severe psychological trauma as a result of their work.^[17] In a 2018 class action lawsuit against Facebook, moderators spoke up about their struggles.^[18] Thousands of individuals who had moderated for the company claimed that the constant exposure to graphic material, including “broadcasts of child sexual abuse, rape, torture, and bestiality,” caused them to suffer Post Traumatic Stress Disorder.^[19] Although the moderators received a fifty-two-million-dollar settlement from Facebook and a promise that it would implement additional measures to support their mental health, the outcome of the lawsuit did not signal a meaningful change in the industry’s approach.^[20] Moderators at major social media companies, including TikTok and WhatsApp, continue to complain of low wages, traumatic working conditions, and insufficient access to mental health resources.^[21]

 While some suggest that AI automation will eventually replace content moderators altogether, the technology is not there yet.^[22] Even the groundbreaking new AI language processing model, ChatGPT, is trained to recognize harmful content by humans who input disturbing images, video, and text into the algorithm and review its findings for accuracy.^[23] Revealing a lack of progress, OpenAI—the twenty-nine-billion-dollar company responsible for creating ChatGPT— outsourced the task to a third-party firm that employs workers in Kenya at a rate of $1.32 to $2.00 per hour.^[24] However, hope may be on the horizon. After learning that its workers were experiencing psychological trauma, the firm prematurely terminated its contract with Open AI.^[25]

            Progress always creates new problems to solve. But the harmful working conditions harming moderators have been an issue since the dawn of social media. With all the power, capital, and innovative capacity available to big tech companies, the failure to meaningfully address the issue is nothing short of exploitation.

---

^[1] See Thomas Stackpole, Content Moderation is Terrible by Design, Harv. Bus. Rev. (Nov. 9, 2022), https://hbr.org/2022/11/content-moderation-is-terrible-by-design.

^[2] See id.

^[3] See id.

^[4] See id.

^[5] See Isaac Chotiner, The Underworld of Online Content Moderation, New Yorker (Jul. 5, 2019), https://www.newyorker.com/news/q-and-a/the-underworld-of-online-content-moderation.

^[6] See Mike Isaac, Facebook’s profit surges 101 percent on strong ad sales, N.Y. Times (Jul. 28, 2021), https://www.nytimes.com/2021/07/28/business/facebook-q2-earnings.html.

^[7] See Chotiner, supra note 5.

^[8] See Billy Perrigo, ‘I Sold My Soul.’ WhatsApp Content Moderators Review the Worst Material on the Internet. Now They’re Alleging Pay Discrimination, Time (last updated Sept. 23, 2021, 5:25AM), https://time.com/6080450/facebook-whatsapp-content-moderators/.

^[9] See id.

^[10] See id.

^[11] See Billy Perrigo, OpenAI Used Kenyan Workers on Less Than $2 Per Hour to Make Chat GPT Less Toxic, Time (Jan. 18, 2023, 7:00AM), https://time.com/6247678/openai-chatgpt-kenya-workers/.

^[12] Perrigo, supra note 10.

^[13] See Stackpole, supra note 1.

^[14] See id.

^[15] See id.

^[16] See id.

^[17] See, e.g., Bobby Allyn, In Settlement, Facebook to Pay $52 Million to Content Moderators With PTSD, NPR (May 12, 2020, 10:52AM), https://www.npr.org/2020/05/12/854998616/in-settlement-facebook-to-pay-52-million-to-content-moderators-with-ptsd.

^[18] See id.

^[19] See id.

^[20] See id.

^[21] See Rosie Bradbury, It took me 2 months to recover from working as a TikTok moderator. I made less than $7 an hour. Every day in the office, I would see my coworkers cry., Insider (Aug. 3, 2022, 7:01AM), https://www.businessinsider.com/it-took-me-2-months-recover-from-working-tiktok-moderator-2022-7; see also Perrigo, supra note 8.

^[22] See Stackpole, supra note 1.

^[23] Perrigo, supra note 10.

^[24] See id.

^[25] See id.

To Compete or to Not Compete, That is the Question

By: Anthony Cecchini

Imagine telling Elon Musk that he is not allowed to expand Tesla into the energy storage business with Tesla Powerwall?^[1] What if Grubhub sued Uber for an injunction that prevented Uber to get into the food delivery market with UberEATS?^[2] Market growth, business expansion, and taking advantage of an opportunity are not only encouraged but embraced in a capitalistic society.^[3] So why are companies allowed to compete with each other like this, yet employees in the same capitalistic society are subject to restrictions that thwart competition?^[4] With calls for change coming from both sides of the aisle,^[5] the Federal Trade Commission (hereinafter “FTC”) recently announced a proposed rule that, if passed, would ban virtually all non-compete clauses in employment contracts between employer and employee.^[6]

The FTC estimates that one in five American workers, roughly 30 million people, are currently working with non-compete clauses in their employment contract.^[7] This means that these workers are unable to pursue better employment opportunities in their current field.^[8] If the FTC is successful in implementing this rule change to ban non-compete clauses, the proposed rule could increase wages by almost $300 billion per year.^[9] Non-compete clauses are not just used in specific industries or for certain job levels, rather, non-compete clauses can be used in employment contracts for hairstylists and warehouse workers to doctors and corporate executives.^[10] Typically, employers are able to assert their overwhelming bargaining power to pressure workers into signing non-compete contracts.^[11]

A non-compete clause essentially prevents an employee from competing with their former employer for a certain amount of time once their employment has ended.^[12] The meaning of compete may vary, but the employer wants to prevent the employee from sharing its trade secrets, taking a position with a rival company, or starting a company that can offer competing products or services.^[13] This is not an exhaustive list as to why employers feel that non-compete clauses are an integral part of the employment contract; employers also insist that they want their investment in training new employees to be protected.^[14] With a non-compete clause in place, employers should not have to worry that an employee will leave for a better opportunity in that respective field once training has been completed or when an employee has been with a company for years but has found a better opportunity with a competing company.^[15]

If employers are worried that their employees will leave for “greener employment pastures,”^[16] the best way to retain employees is to ensure they don’t have a reason to leave. Employers should offer a good, livable wage, strong benefits, and safe working conditions.^[17] Unfortunately, many employers would rather hide behind the non-compete clause than make these upgrades.^[18]

FTC chair, Lina Khan, said “[t]he freedom to change jobs is core to economic liberty and to a competitive, thriving economy . . . [b]y ending this practice, the FTC’s proposed rule would promote greater dynamism, innovation, and healthy competition.”^[19] The FTC voted 3-1^[20] in favor of publishing the Notice of Proposed Rulemaking (hereinafter “NPRM”), completing the first step in the FTC’s process.^[21] The second step is currently underway where the NPRM is welcoming the public to submit comments on the proposed rule.^[22] The comment period is open until March 20^th, 2023, and the FTC will review the comments, possibly amend the proposed rule, further analyze the issue and submit a final rule.^[23] Employees should benefit from the same competitive freedoms their employers already enjoy. Only time will tell if workers will finally be able to break free from the restraints of non-compete clauses or not.

---

^[1] See Startups Never Rest: 5 Companies That Expanded into New Markets, TechPortfolio, http://techportfolio.net/2017/02/startups-never-rest-5-companies-that-expanded-into-new-markets/ (last visited Feb. 21, 2023),.

^[2] Id.

^[3] See Brian Dolan, Main Characteristics of Capitalistic Economies, Investopedia, (last updated Feb. 8, 2023), https://www.investopedia.com/articles/investing/102914/main-characteristics-capitalist-economies.asp.

^[4] See U.S. Dep’t. of the Treasury, Non-Compete Contracts: Economic Effects and Policy Implications, (Mar. 2016), https://home.treasury.gov/system/files/226/Non_Compete_Contracts_Econimic_Effects_and_Policy_Implications_MAR2016.pdf.

^[5] Russell Beck, A Brief History of Noncompete Regulation, Fair Competition Law, (Oct. 11, 2021), https://faircompetitionlaw.com/2021/10/11/a-brief-history-of-noncompete-regulation/#:~:text=Noncompetes%20Have%20Been%20Around%20Since,he%20had%20been%20trained%20in. (referring to Republican Senator Marco Rubio introducing the “Freedom to Compete Act” in January 2019, and in October 2019 Democratic Senators Chris Murphy and Todd Young refiling the “Workforce Mobility Act”); see also Executive Order on Promoting Competition in the American Economy, The White House, (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/ (President Biden issued Executive Order 14036, aimed at promoting competition in the economy and directed the FTC to consider developing a rule “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”). 

^[6] Fed. Trade Comm’n, Non-Compete Clause Rulemaking (Jan. 5, 2023), https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking (stating all non-compete clauses will be banned except those that deal with “a person who is selling a business entity or otherwise disposing of all of the person’s ownership interest in the business entity, or by a person who is selling all or substantially all of a business entity’s operating assets.”).

^[7] See Id.

^[8] See Id.

^[9] Fed. Trade Comm’n, FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition (Jan 5, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition?utm_source=govdelivery.  

^[10] See Id.

^[11] See Id.

^[12] See 5 Things You Need to Know About Non-Compete Agreements, Thomson Reuters, (Mar. 11, 2022), https://legal.thomsonreuters.com/en/insights/articles/the-basics-of-non-compete-agreements.

^[13] See Id.

^[14] See Sandeep Vaheesan, The Fight Over Non-Competes Is Heating Up. The FTC Must Stand Strong, Time, (Jan. 23, 2023), https://time.com/6249347/fight-over-non-compete-clauses/.

^[15] See Id.

^[16] See Id.

^[17] See Id.

^[18] See Id.

^[19] Supra note 9.

^[20] See generally, Id. (Chairwoman Khan (D), Commissioner Rebecca Kelly Slaughter (D), and Commissioner Alvaro Bedoya (D) all voted in favor of the rule and Commissioner Christine S. Wilson (R) voted against the proposed rule).

^[21] See Id.

^[22] See Id.

^[23] See Id.

Medical Malpractice Suit Could Shift NFL’s Medical Perspective

By: Evan Mattel

In a recent decision by the Philadelphia County Court of Common Pleas, former Philadelphia Eagles captain Chris Maragos was awarded $43.5 million on the back of a medical malpractice suit against two orthopedic surgeons.^[1]Maragos tore his posterior cruciate ligament (hereinafter “PCL”) in his right knee during a game on October 12, 2017 and underwent an advanced rehab program despite still showing a partial tear in his knee in 2018.^[2] This ultimately led to the “premature end” of his career in the National Football League (hereinafter “NFL”) and the lawsuit in the present day.^[3]This ruling is a significant shift for NFL teams and their medical staff as the focus must now become a player’s ability to get back on the field as soon as possible as well as the player’s long-term health. The criticism and frustration of the NFL’s medical staff is not just felt by former players as New Orleans Saints’ receiver Michael Thomas expressed his thoughts in a now-deleted tweet commenting on the suit “right decision, the nfl medical sucks, cheap and uneducated their job barely requires any education or curriculum…well at least and some places I know.”^[4]

            NFL physicians must undergo four years of undergraduate study, four years of medical school, four to five years of residency, and one year of fellowship training and most physicians will have experience with a sports team at the collegiate or high school level before transitioning to the NFL.^[5] Additionally, each physician on the team must be board-certified in their field of medical expertise led by a Head Team Physician who must have three years of affiliation with an NFL team’s medical staff and attended training camps, scouting combines, and at least sixteen games.^[6] This is not to say that Thomas’ frustrations are not valid, but they are potentially misplaced. 

NFL physicians are qualified and educated, but the pressure from the organization may shift the medical team’s perspective to the player’s immediate availability rather than their long-term health.^[7] This has been, unfortunately, at the forefront of the NFL as we saw with Tua Tagovailoa as he suffered three concussions during the 2022-2023 season.^[8]Tagovailoa suffered a head injury in weeks four and five and another one again in week sixteen on Christmas Day which he is still in concussion protocol for.^[9] This has led many to question his future in the league and even Dr. Bennet Omalu, the doctor who discovered chronic traumatic encephalopathy (hereinafter “CTE”), to advise Tua to stop playing immediately.^[10] Tua’s parents have indicated he will play again in 2023, but that remains to be seen.^[11] If Tua were to step away, it is plausible that he could file suit similar to Maragos’ suit against the physicians who cleared him to play during those weeks of back-to-back head injuries.^[12] Whether Tagovailoa continues his career or not, Maragos’ win could shift the landscape of the medical focus in the NFL and open the opportunity for other former players to evaluate whether they received proper care and if not, open a similar suit against those who handled their medical issues. 

---

^[1] See Matias Grez, Former Philadelphia Eagles captain Chris Maragos awarded $43.5 million in medical malpractice case, CNN (Feb. 15, 2023) https://www.cnn.com/2023/02/15/sport/chris-maragos-wins-medical-malpractice-case-spt-intl/index.html.

^[2] See id. 

^[3] See id. 

^[4] Erin Walsh, Saints’ Michael Thomas Deletes Tweet Criticizing NFL Mediical Staff, Bleacher Report (Feb. 18, 2023) https://bleacherreport.com/articles/10066136-saints-michael-thomas-deletes-tweet-criticizing-nfl-medical-staff.

^[5] See NFLPA, Collective Bargaining Agreement 214 (2020).

^[6] See id. 

^[7] See Arif Hasan, Damar Hamlin Injury Tested Our Commitment to What Matters. The NFL Failed, Pro Football Network (Jan. 3, 2023) https://www.profootballnetwork.com/damar-hamlin-injury-tested-our-commitment-to-what-matters-the-nfl-failed-opinion.

^[8] See Joe Rivera, Tua Tagovailoa injury history: A complete timeline of injuries for Dolphins QB, The Sporting News (Jan. 15, 2023) https://www.sportingnews.com/us/nfl/news/tua-tagovailoa-injury-history/.

^[9] Michael Baca, Dolphins QB Tua Tagovailoa remains in concussion protocol, won’t participate in Pro Bowl Games, NFL (Jan. 27, 2023) https://www.nfl.com/news/dolphins-qb-tua-tagovailoa-remains-in-concussion-protocol-won-t-participate-in-p.

^[10] See Edward Sutelan, Tua Tagovailoa injury update: Parents say Dolphins QB will be back in 2023, The Sporting News (Jan 28, 2023) https://www.sportingnews.com/us/nfl/news/tua-tagovailoa-injury-update-parents-dolphins-qb-2023/.

^[11] See id. 

^[12] See Rivera supra note 8.

Kicking off Equality in Canada Soccer

By Jillian Cammer

Canada’s soccer team is making international headlines – this time for their clothes.^[1] Ahead of the SheBelieves Cup, the team is protesting pay inequality and unequal treatment with inside-out warmup shirts, flipping them to conceal the Canadian logo.^[2] Not long ago, the team was making headlines for their showing in the Tokyo Olympics, in which they brought the gold back to Canada.^[3] Later, in their opening game, the team chose to wear purple shirts conveying the words “enough is enough” before taking the field.^[4]

The tension began earlier this year when Canada Soccer announced significant budget cuts to the national team’s program.^[5] Responding on Twitter, the team argued that the cuts were just in time for the approaching Women’s World Cup – an obstacle the men’s team didn’t face in last year’s Men’s World Cup.^[6] “Now that our World Cup is approaching, the Women’s National Team players are being told to prepare to perform at a world-class level without the same level of support that was received by the Men’s National Team in 2022…to simply make do with less.”^[7] Reports show that Canada Soccer spent $11 million on the men’s team and $5.1 million on the women’s in 2021.^[8]

As a result, the team had originally planned a strike for the upcoming SheBeleives Cup.^[9] Threatened with reports of legal action, the players attended SheBeleives Cup amid the threat of monetary damages – albeit with a less-than-formal wardrobe.^[10] The planned strike was met with scrutiny from Canada Soccer, who cited its illegality according to Ontario Labor Law.^[11]

Without compensation for 2022, the women’s national team, represented by the Canadian Soccer Players Association Union, has been engaged in collective bargaining with Canada Soccer for over a year.^[12] In Ontario, the parties negotiating under collective bargaining fall under the Labour Relations Act.^[13] The law is clear that while under a collective bargaining agreement, strikes are unlawful.^[14] However, this changes under the Act, where “No collective agreement is in operation, no employee shall strike…until the Minister has appointed a conciliation officer.”^[15] The officer then may subjectively issue a “no board report” upon conclusion parties are not ready for a collective agreement.^[16]  Notably, the act also issues that “no employee shall threaten an unlawful strike.”^[17]

Reportedly, the union requested a “no board report,” which, if issued, allowed for a 17-day countdown before the union may be in a legal position to strike.^[18] However, no confirmation of issuance was reported before the players took to Twitter to retract the strike under threat of a lawsuit.^[19]

The Men’s national team, as well as prominent American players such as Megan Rapinoe, have put out statements in support and pointed out Canada’s bid to co-host the 2026 Men’s World Cup, asking for the Minister of Sport to intervene.^[20] “Treat your world-class players as world-class.”^[21]  Canada Soccer has since been asked to a meeting at the House of Commons Heritage Committee, which reviews, inter alia, policies surrounding sports initiatives and is made up of members of the sitting parliament who will make recommendations to the current government over these very allegations.^[22]

As the legal dispute draws out, support for the team has been ramping up. “What do they have to do, win a gold medal? Sell out stadiums? Oh wait…It’s 2023, wake up @CanadaSoccerEn you’re on the clock.”^[23] With protests developing and the option to strike still a contender for the future, time will tell who will emerge the champion in Canadian women’s soccer.

---

^[1] See Neil Davidson, Canadian Women Make Gender Equality Statement, CBC (Feb. 16 2023), https://www.cbc.ca/sports/soccer/canada-united-states-shebelieves-cup-labour-distractions-1.6751486.

^[2] See Id.

^[3] See Id. 

^[4] See Id.

^[5] See Ameé Ruszkai, Canada Soccer Vs Canada Women’s Team: Strike Threats For SheBeleives Cup & Legal Dispute Explained, Goal (Feb. 16, 2023), https://www.goal.com/en-us/news/canada-soccer-vs-canada-women-strike-threats-shebelieves-cup-legal-dispute-explained/blt4d1b06c435d1f3d3.

^[6] @PlayersCanadian, TWITTER (Feb. 10, 2023, 4:35 PM),

The time is now, we are taking job action. pic.twitter.com/QbVbhTcdDU

— CanadianSoccerPlayers (@PlayersCanadian) February 10, 2023

^[7] See Id.

^[8] Neil Davidson, Liberal MP Wants To Expedite Having Canada Soccer Before Parliamentary Committee, CBC (Feb. 13, 2023), https://www.cbc.ca/sports/soccer/canada-soccer-women-liberal-mp-parliamentary-committee-1.6747190.

^[9] See Ruszkai, supra note 4.

^[10] See Id.

^[11] Canada Soccer Statement, Canada Soccer (Feb. 11, 2023), https://www.canadasoccer.com/news/20230211-canada-soccer-statement/.

^[12] See Ruszkai, supra note 4.

^[13] Labour Relationship Terms, Laurentian University Faculty Association, https://www.lufappul.ca/?page_id=186 (last visited Feb. 18, 2023).

^[14] Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A.

^[15] See Id.

^[16] Labour Relations Act, supra note 13; see also Collective Bargaining, Ontario, https://www.ontario.ca/page/collective-bargaining (last visited Feb. 18, 2023); Labour Relationship Terms, supra note 11.

^[17] Labour Relations Act, supra note 13.

^[18] Rick Westhead, Canada Soccer Threatens To Sue Players Over Job Action: Sources, TSN (Feb. 11, 2023), https://www.tsn.ca/soccer/canada-soccer-threatens-to-sue-players-over-job-action-sources-1.1918073.

^[19] See Ruszkai, supra note 4.

^[20] See @rwesthead, Twitter (Feb. 10, 2023, 5:59 PM),

https://twitter.com/rwesthead/status/1624181389502427138?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1624181389502427138%7Ctwgr%5Ed453019bcbd7f70089d299b7841b45cfac5d3324%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.goal.com%2Fen-us%2Fnews%2Fcanada-soccer-vs-canada-women-strike-threats-shebelieves-cup-legal-dispute-explained%2Fblt4d1b06c435d1f3d3; Ruszkai, supranote 4.

^[21] See Ruszkai, supra note 4.

^[22] About: Standing Committee On Canadian Heritage, Parliament of Canada House of Commons, https://www.ourcommons.ca/Committees/en/CHPC/About (last visited Feb. 18, 2023); see also Neil Davidson, Liberal MP Wants To Expedite Having Canada Soccer Before Parliamentary Committee, CBC (Feb. 13, 2023), https://www.cbc.ca/sports/soccer/canada-soccer-women-liberal-mp-parliamentary-committee-1.6747190.

^[23] @alexmorgan13, Twitter (Feb. 10, 2023, 5:07 PM), https://twitter.com/alexmorgan13/status/1624168203914993687?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1624168203914993687%7Ctwgr%5Ed453019bcbd7f70089d299b7841b45cfac5d3324%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.goal.com%2Fen-us%2Fnews%2Fcanada-soccer-vs-canada-women-strike-threats-shebelieves-cup-legal-dispute-explained%2Fblt4d1b06c435d1f3d3.

Does Your Company’s Pizza Party Violate OSHA?

By: Emily Manning 

The Occupational Safety and Health Administration (OSHA) posted a Tweet back in January with the following question: “Is your pizza party incentive program unreasonable?”^[1] Everyone loves a classic pizza party, but this tweet has incited a myriad of questions in terms of its legalities.^[2] A safety incentive program encourages or rewards workers for reporting injuries, illnesses, near-misses or hazards, and rewards worker involvement in the safety and health management system.^[3] Employers reward and recognize their employees for safe behavior through things like gift cards, extra days off, or even monetary awards.^[4] But why should employers be incentivizing health and safety measures that they should be doing anyways?^[5] This all may seem unnecessary at times, but it’s hard to argue with these incentives when they actually work.^[6]    

            Back in 2021, the state of Ohio announced its Vax-a-Million promotion.^[7] Those who received the COVID-19 vaccine were automatically entered into a drawing to win up to $1 million.^[8] Vaccinations in Ohio were up by a third after this incentive program was announced.^[9] In a study concerning construction companies, those who had a safety incentive program had a 44% reduction in their injury rates.^[10] Comparing this to a construction company without a safety program, they had a 42% increase in injuries.^[11] Incentives like this are proven to work, but on the other hand, they can also act as disincentives for injury reporting and decreased reporting is seen to increase accident risk.^[12] For reasons like this, OSHA has not made their position on safety incentives programs entirely clear.^[13]

            OSHA first released guidance concerning safety incentive programs back in 2012.^[14] Here, they claim that reporting a work-related injury/illness is a core right and go on to list various policies and practices that might be discriminatory for those who do report injuries.^[15] For example, “an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time.”^[16] OSHA states this type of program may be well-intentioned, but there are better ways to encourage safe work practices, such as a program that encourage workers to identify such hazards.^[17]  

A more recent statement on the issue was released in 2018.^[18] Here, OSHA seems to touch on the revered pizza party issue by stating that programs like this are considered a rate-based incentive and are allowable under § 1904.35(b)(1)(iv) as long it is not executed in a way that discourages reporting.^[19] They elaborate by stating:  

“Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”^[20]

Looking back to the recent tweet from OSHA regarding pizza parties, it is even more unclear where they stand.^[21] This tweet seems to deviate from the 2018 guidance because it states that such programs are unreasonable if 1) it denies benefits/bonuses to employees based on reported injuries or is related to recordable injury rates 2) “[e]xclude[s] workers who report injuries from prizes or awards” or 3) “[p]rovide[s] rewards or parties for workers or crews who remain injury free.”^[22] This suggestion may seem to contradict formal guidance from OSHA by stating that withholding participation in a pizza party for someone who reports an injury could be a violation.^[23] More guidance is needed to ensure correct adherence to these confusing regulations, but until then, employers might want to cut back on the pizza parties to avoid violations.^[24]     

---

^[1] OSHA DOL (@OSHA_DOL), Twitter (Jan. 13, 2023, 2:02 PM), https://twitter.com/OSHA_DOL/status/1613974688337633280?cxt=HHwWgICx7bDb_uUsAAAA  

^[2] John Surma, OSHA Serves Up a Slice of Confusion: Can an Employer’s Pizza Party Workplace Safety Incentive Program Be ‘Unreasonable’?, Olgetree Deakins (Feb. 7, 2023), https://ogletree.com/insights/osha-serves-up-a-slice-of-confusion-can-an-employers-pizza-party-workplace-safety-incentive-program-be-unreasonable/

^[3] R. Scott Russel, OSHA Compliant Safety Incentives: Why is Workplace Safety So Important?, C.A. Short (June 16, 2020), https://www.cashort.com/blog/why-is-workplace-safetyimportant#:~:text=What%20Is%20A%20Safety%20Incentives,safety%20and%20health%20management%20system

^[4] Haddy Rojas, Safety Recognition Incentive Programs May Be the Key, National Safety Council,

 https://www.nsc.org/getmedia/73deb8df-e9ec-43e4-af8a-d13073bde4fc/incentive-programs-haddy-rojas.pdf (last visited Feb. 12, 2023).

^[5] Connor Michael, Doughnuts, Pizza, and Free Beer: What Vaccine Incentives Say About Safety, The Laboratory Safety Institute (June 18, 2021), https://www.labsafety.org/doughnuts-pizza-and-free-beer-what-vaccine-incentives-say-about-safety  

^[6] Id.

^[7] Ohio’s Final Vax-a-Million Drawing Winners Announced, Ohio Department of Health (June 23, 2021),

https://odh.ohio.gov/media-center/odh-news-release-06-23-21

^[8] Id.  

^[9] Id.  

^[10] Paul Goodrum, Safety Incentives A study of their effectiveness in construction, Professional Safety, page 30 (September 2010).  

^[11]  Id.

^[12] Michael, supra note 5.

^[13] Surma, supra note 2.

^[14] Memorandum from Richard E. Fairfax, U.S. Department of Labor (Mar. 12, 2012) (on file with the U.S. Department of Labor).

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Memorandum from Kim Stiles, U.S. Department of Labor (Oct. 11, 2018) (on file with the U.S. Department of Labor).

^[19] Id.

^[20] Id.

^[21] Surma, supra note 2.

^[22] OSHA DOL, supra note 1.

^[23] Surma, supra note 2. 

^[24] Id.

Long Overdue: Congress Delivers Maternal Protection with the Pregnant Workers Fairness Act

By: Amber Makda 

The Pregnant Workers Fairness Act (”PWFA”) is designed to protect employees and applicants experiencing pregnancy-related medical conditions or limitations from being denied reasonable accommodations in the workplace.^[1]  The law is distinct from its predecessors, filling in the gaps left by the Americans with Disabilities Act (“ADA”) and Pregnancy Discrimination Act (“PDA”) by codifying protections not expressly mentioned in either piece of legislation.^[2]  Under the PDA, employers need only provide accommodations to pregnant employees when other similarly situated employees are granted accommodations.^[3]  In effect, the PDA fails to realize that pregnancy calls for unique accommodations; not merely the same treatment as other conditions.^[4]  The ADA also leaves pregnant women largely unprotected, as pregnancy is neither listed or interpreted as pregnancy as a disability.^[5]  However, a limited number of pregnancy-related impairments might qualify under the ADA as disabilities, enabling employees who have been refused reasonable accommodations to seek redress under the statute.^[6]  In effect, the PWFA essentially mirrors protections afforded by the ADA, instead applying to pregnant employees.^[7]

The PWFA requires employers to provide reasonable accommodations to employees experiencing medical conditions related to pregnancy, lactation, and child-birth, except when doing so would impose undue hardships upon the employer.^[8]  Any determination concerning reasonable accommodations must be preceded by an “interactive process,” requiring a good-faith conversation between the employer and the employee seeking an accommodation.^[9]  Employees cannot be forced to accept accommodations that are unreasonable, or be required to take leave if providing accommodation is possible and does not pose an undue burden to the employer.^[10] Employers are also barred from denying employees other opportunities necessitating accommodations when their denial is based on a desire to not accommodate the employee, as opposed to a true undue hardship.^[11]  Further, covered employees are also protected from retaliatory actions arising out of their requests for reasonable accommodation or participation in a protected activity.^[12]

The PWFA applies to public and private sector employers with more than 15 employees, and all government employers.^[13]  Damages for violations may include front and back pay, compensatory and punitive damages, attorneys’ fees, and reinstatement, if elected.^[14]  The PWFA will be enforced by the Equal Employment Opportunity Commission (“EEOC”), which will begin reviewing PWFA-related charges on June 27, 2023.^[15]  In the interim, employees can continue to seek redress for perceived unlawful pregnancy-related employment actions under Title VII of the Civil Rights Act of 1964, or the ADA.^[16]

The EEOC is expected to issue regulations illustrating examples of reasonable accommodations within one year of enactment, subject to review before later finalization.^[17]  However, in the absence of formal guidance from the EEOC, the House Committee on Education and Labor Report on the PWFA has provided examples of reasonable accommodations, including: “seating; water; closer parking; flexible hours; appropriately sized uniforms and safety apparel; additional breaktime to use the bathroom, eat, and rest; excusing the worker from strenuous activities; and excusing the worker from activities that involve exposure to compounds not safe for pregnancy.”^[18]

Before the PWFA takes effect, employers should take steps to ensure their policies reflect that pregnancy, lactation, and child-birth related medical conditions are listed as grounds for reasonable accommodations.^[19]  Further, employers should hold trainings for staff in supervisory positions detailing guidelines for appropriate interactions with protected staff under the PWFA.^[20] This is especially important for preparedness during the “interactive process,” a prerequisite conversation to the approval or denial of accommodations.^[21]

---

^[1] Pregnant Workers Fairness Act, 117 S. 4431, 117th Congress, 2nd Session (2022).

^[2] See Renee Chacko, Special Delivery: Pushing For Pregnant Workers Fairness Rights, 37 J. Legal Medicine, 195, 196 (2017).

^[3] See id.

^[4] See id.

^[5] See 42 USCS § 12102; see Matthews v New Light, Inc., 2022 US Dist LEXIS 191346 (W.D. Pa. Oct. 20, 2022, Civil Action No. 22-427) (“although complications and impairments caused by pregnancy may constitute a disability under the ADA, pregnancy alone is not a disability within the meaning of the ADA”) (internal citations omitted). 

^[6] See Varone v. Great Wolf Lodge, No. 15-304, 2016 U.S. Dist. LEXIS 47867, 2016 WL 1393393, *3 (M.D. Pa. Apr. 8, 2016) ( “[a]lthough pregnancy is not an impairment within the meaning of the ADA and is never a disability on its own, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA”).

^[7] See Pregnant Workers Fairness Act, supra note 1 (mirroring the language and provisions of the Americans With Disabilities Act, including “reasonable accommodations”). 

^[8] See Pregnant Workers Fairness Act, supra note 1 at § 3.

^[9] See id. at § 2(7); see Christine Gant-Sorenson, What do the Pump Act and PWFA Mean for Employers?, Haynsworth Sinkler Boyd (Feb. 8, 2023) https://www.hsblawfirm.com/Connect/Blog/2023/What-do-the-PUMP-Act-and-PWFA-mean-for-employers.

^[10] See Pregnant Workers Fairness Act, supra note 1 at § 3(4).

^[11] See id. at 3(3). 

^[12] See id. at 3(5); see What You Should Know About the Pregnant Workers Fairness Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last accessed Feb. 18, 2023). 

^[13] See Pregnant Workers Fairness Act, supra note 1 at § 2(2).

^[14] See id. at § 4. 

^[15] See id. at § 2(1); see What You Should Know About the Pregnant Workers Fairness Act supra note 12. 

^[16] See What You Should Know About the Pregnant Workers Fairness Act supra note 12. 

^[17] See id. 

^[18] H.R, 117th Cong., Rep No. 117-27 at 11 (2021) https://www.congress.gov/congressional-report/117th-congress/house-report/27/1?overview=closed.

^[19] See What You Should Know About the Pregnant Workers Fairness Act, supra note 12.

^[20] See id.

^[21] See id.