Author Archives: Hofstra Labor & Employment Law Journal

Say Goodbye to Gender Wage Gaps in New York

By: Grace Cho

On May 4, 2017, Mayor Bill De Blasio signed Intro. 1253, a bill that bars employers, both private and public, from inquiring about salary history.[1] Additionally, employers may not conduct any public information search on a prospective employee, or use the salary history to determine benefits or salary unless the prospective employee supplies the information “willingly and without any prompting.”[2] The goal is to determine salary based on market factors and to close the gender wage gap in New York City (“NYC”).[3] The bill will take effect on October 31, 2017.[4] Other places, such as Delaware, Massachusetts, San Francisco, Oregon and Philadelphia have enacted a similar salary history ban.[5]

Although the bill doesn’t take effect until October 2017, the city will prepare employees and utilize educational materials to educate New York City workers of their rights. [6] The goal is for prospective employees to understand their right to “negotiate a fair salary and prevent underpayment throughout their professional life.”[7] To encourage the salary history ban, the city of New York placed penalties on employers who choose to disregard the law.[8] Beginning on October 31, 2017, prospective employees can file a complaint with the NYC Commission on Human Rights if an employer doesn’t abide by this law.[9] Civil penalty fines can be up to 250,000 dollars, and compensatory damages may be awarded. [10] This law ensures that employers will no longer have a “benchmark” to determine a prospective employee’s starting pay. [11] This gives both employees and employers room to negotiate.

According to an August 2016 study, commissioned by the New York City Public advocate, women get paid about eighty seven percent of what men get paid in New York.[12] Every year in New York State, women collectively earn about twenty billion dollars less than men,[13] and in New York City, women get paid almost six billion dollars less than men.[14]A study done by Payscale ascertained that both male and female “refusers” were more likely to earn a higher salary in their current jobs than those who revealed their salary history.”[15] The salary history ban benefits men and women in gaining a higher salary.[16]

Even though the salary history ban is beneficial to women and men, employers and industry groups are not so supportive.[17] The Philadelphia chamber of commerce stated that businesses are opposing the city’s equity law and filed a suit to enjoin the new law.[18] The future of the salary history ban is unknown for Philadelphia.[19] Employers and employees must monitor the lawsuit carefully and should “review” the “interviewing and hiring practices” in case the judge for the Eastern District of Pennsylvania decides to rule in favor of the city.[20]

 

[1] Jillian Jogensen, Mayor de Blasio signs legislation to ban employers from seeking salary history of applicants, N.Y. Daily News (May 4, 2017, 11:30 PM), http://www.nydailynews.com/news/politics/nyc-illegal-applicants-asked-salary-history-article-1.3138471.

[2] Levi Perkins, Salary History Bans Gain Momentum, Corp. Screening (Aug. 3, 2017), https://www.corporatescreening.com/2017/08/03/salary-history-bans-gain-momentum/.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Mayor de Blasio Signs Bill Prohibiting All NYC Employers From Inquiring About Salary History of Job Applicants, Nyc (May 4, 2017), http://www1.nyc.gov/office-of-the-mayor/news/285-17/mayor-de-blasio-signs-bill-prohibiting-all-nyc-employers-inquiring-salary-history-job#/0.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] William D. Cohan, Salary Hisoty: Wall Street Can’t Ask, and You Needn’t Tell, N.Y. Times (June 13, 2017), https://www.nytimes.com/2017/06/13/business/dealbook/job-salary-pay-women-men-wall-street.html.

[13] Id.

[14] Id.

[15] Lydia Frank, Why Banning Questions About Salary History May Not Improve Pay Equity, Harv. Bus. Rev. (Sept. 5, 2017), https://hbr.org/2017/09/why-banning-questions-about-salary-history-may-not-improve-pay-equity.

[16] Id.

[17] Dori Goldstein, More Laws Enacted To Ban Salary History Inquiries, BNA (July 5, 2017), https://www.bna.com/delaware-oregon-enact-b73014453430/.

[18] Tricia L. Nadolny, Chamber files new suit, leaving city’s wage equity law on hold, The Inquirer (June 14, 2017, 1:22 PM), http://www.philly.com/philly/news/politics/city/chamber-files-new-suit-leaving-citys-wage-equity-law-on-hold-20170614.html.

[19] Susan Gross Sholinsky & Nancy L. Gunzenhauser, Philadelphia’s Salary History Law Temorarily Stayed Pending Lawsuit, Nat’l L. Rev. (Apr. 24, 2017), https://www.natlawreview.com/article/philadelphia-s-salary-history-law-temporarily-stayed-pending-lawsuit.

[20] Id.

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T-Wolves’ Video Crew Scores a Slam Dunk in Their Bid to Unionize

By: Alex Malandra

In a split ruling, the National Labor Relations Board (“NLRB”) has ruled that members of the video crew, which produces Jumbotron footage for the Minnesota Timberwolves’ (“T-Wolves”) Target Arena, are team employees and can unionize.[1]

This ruling overturned a February 2016 decision by Marlin O. Osthus, the NLRB’s Region eighteen Director, which held that T-Wolves crewmembers were independent contractors, and therefore, ineligible to organize.[2] In the February 2016 decision, the International Alliance of Theatrical Stage Employees’ (“IATSE”) representation petition was dismissed by the NLRB on behalf of thirty part-time employees of Target Arena’s video team.[3]

Osthus argued that several factors indicated the video crew workers were independent contractors and not employees.[4] These factors included: (1) the workers could remove themselves from the roster of potential assignments at any time; (2) workers could decline an assignment with no consequences; (3) there was no maximum or minimum game assignments for the worker each season; (4) workers could cancel an accepted work assignment without any repercussions, as long as they found a replacement; and (5) almost all of the workers performed similar work for other entities.[5]

Osthus concluded that the video crew workers are independent contractors, because the workers had “significant control” over their own work and subject to little supervision.[6] Subsequently, the IATSE filed a petition for review, arguing that Osthus misapplied precedent regarding the independent contractor test under the National Labor Relations Act (“NLRA”) and thus, misclassified the crewmembers as independent contractors.[7] In July 2016, the NLRB accepted review of Osthus’s decision to determine whether the workers were properly classified as independent contractors.[8]

The NLRB first set the controlling standard for its decision.[9] The Board relied upon a set of common-law agency principles to help guide the process for this misclassification dispute.[10] The standard calls for an analysis of eleven factors to help render a decision.[11] No single factor is determinative, and the relationship must be assessed in its entirety and weighed with all factors considered.[12]

In a 2-1 decision issued on August 18, 2017, the NLRB said the T-Wolves operate as an employer in several aspects,[13] such as creating work schedules, providing equipment needed for the crewmembers to perform their work, setting a script for the workers to follow, and exerting “significant control” over the video crew’s work.[14] In its decision, the Board said, “the Employer holds and exerts control far exceeding that possessed by crewmembers themselves over when and how a crewmember will perform video-production work for it, as well as the manner and means by which that work is accomplished.”[15]

Other factors that weighed in favor of the video crew workers being employees included the length of time most members of the proposed unit have worked at Target Arena, the workers’ providing an essential service to the T-Wolves’ business, and the fact that most crewmembers do not operate their own businesses.[16]

The Board held that the T-Wolves did not adequately demonstrate that the video crewmembers are independent contractors, stating, “the [e]mployer has the burden of establishing that the crewmembers are independent contractors. We find that [the T-Wolves have] not carried its burden.” [17]

NLRB members, Gaston Pearce and Lauren McFerran, comprised the majority in favor of the crewmembers’ right to unionize, while the NLRB Chair, Phillip Miscimarra, dissented.[18] Miscimarra, the lone Republican on the Board, stated, “the evidence overwhelmingly indicates that [the crewmembers] are independent contractors based on the distinct skills they possess, the fact that they are paid on a per-game basis, their freedom to take other work, and the fact that Timberwolves Basketball does not control the details of their work or supervise them.”[19]

[1] Braden Campbell, Split NLRB Says T-Wolves’ Video Crew Can Hold Union Vote, Law360.com (Aug. 21, 2017, 2:29 PM), https://www.law360.com/articles/956031/split-nlrb-says-t-wolves-video-crew-can-hold-union-vote.

[2] Braden Campbell, NLRB Looks at T-Wolves Video Team’s Union Petition Denial, Law360.com (July 20, 2016, 5:03 PM), https://www.law360.com/articles/819509/nlrb-looks-at-t-wolves-video-team-s-union-petition-denial.

[3] Id.

[4] Id.

[5] Richard Meneghello, Labor Board Dunks On Employer’s Contractor Classification Attempt – NBA’s Timberwolves Foul Out in Front Of NLRB, JDSupra (Aug. 30, 2017), http://www.jdsupra.com/legalnews/labor-board-dunks-on-employer-s-15460/.

[6] Campbell, supra note 2.

[7] Id.

[8] Campbell, supra note 1.

[9] Meneghello, supra note 5.

[10] Id.

[11] Id.

[12] Id.

[13] Barb Kucera, Target Center scoreboard crew eligible to unionize, Workday Minn. (Aug. 22, 2017), http://www.workdayminnesota.org/articles/target-center-scoreboard-crew-eligible-unionize.

[14] Meneghello, supra note 5.

[15] Id.

[16] Campbell, supra note 1.

[17] Kucera, supra note 13.

[18] Id.

[19] Id.

DACA Repeal: Not Just Crushing Dreams but Crushing the Workforce      

By: Kristen Acosta

In 2012, former President Barack Obama created the Deferred Action for Childhood Arrivals (“DACA”) program to provide protection for undocumented immigrants who were illegally brought to the United States as children.[1] DACA allowed applicants to legally reside in the United States, and required them to renew their application every two years to maintain their work authorization.[2] After being approved, the recipients (or “Dreamers”–as they have been dubbed) gained many benefits, including the ability to legally acquire a job; “Dreamer’s” received employment authorization documents (“EAD”), which are renewable two-year work permits.[3]

On September 5, 2017, the Trump Administration repealed the DACA program.[4] The repeal allows the program to stay in place until March 5, 2018, and the complete dissemination of the program will occur over a two-year period.[5] The memo contained many guidelines to assist the phase out of the program, the program will: not accept new requests for DACA benefits received after September 5, 2017, process applications for DACA extensions received by October 5th, 2017 as long as the benefits expire on or before March 5, 2018, and allow “Dreamers” with work authorization to work until their EAD expires.[6] The Trump administration’s decision to repeal DACA will have a major effect on the employees protected by DACA.[7]

According to a study done by the Center for American Progress, ninety one percent of the 800,000 “Dreamer’s” protected by DACA are employed.[8] The study found that for every business day DACA renewals are paused, “more than 1,400 DACA recipients will lose their ability to work,”[9] which could result in more than 30,000 people losing their jobs each month.[10] The study also stated that over the next two years, the revocation of DACA will cause roughly 700,000 currently employed “Dreamers” to be divested of their right to work and subsequently fired.[11] Lastly, the study showed that the firing of “Dreamers” will be the highest in the third quarter of 2018 with the possibility of more than 11,000 people losing their jobs each week, and an estimated 140,000 people being fired during that quarter.[12] To put it simply, every thirteen seconds of the third quarter of 2018 a “Dreamer” will probably be fired from their job.[13] Even if every “Dreamer” does not lose his or her job, they will be left unprotected in the workplace, because losing EAD and means being stripped of labor rights and employment law protections.[14] “Dreamers” losing their EADs means that employers can pay them low wages and take away employee benefits–including sick time and overtime pay–because “Dreamers” could be detected and deported if they complain.[15]

The repeal of DACA will similarly be felt by the employers of “Dreamers.” Many employers are in for a shock, because many of them are unaware they employ “Dreamers,” as the EADs issued are not any different than those given through other visa categories.[16] David Bier, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity, analyzed eleven studies on the turnover costs of employers to estimate the effect that the repeal of DACA would have on employers.[17] Bier stated, “if the federal government forces employers to fire all of DACA recipients, it will cost employers $6.3 billion.”[18] Bier’s estimate of turnover costs to employers includes the “recruiting, hiring, and training [of] 720,000 new employees.”[19]

In the United States, it is not illegal for a person to work without authorization, but it is illegal to hire someone who does not have authorization to work.[20] Therefore, DACA EADs provides employers a kind of protection, because it allows them to hire these individuals without the fear of being sanctioned.[21] However, with the repeal of DACA, employers will have to police their workforce and fire “Dreamers” whose EADs have expired, in order to avoid sanctions.[22] The repeal of DACA will not only negatively affect the 800,000 “Dreamers” that have benefited from the program and helped grow the United States economy, it will also affect the employers that have helped give them a better life.

 

[1] Jenna Johnson, Obama Calls President Trump’s Decision to End DACA ‘Wrong,’ ‘Self-defeating’ and ‘Cruel’, Wash. Post (Sept. 5, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/09/05/obama-calls-trumps-decision-to-end-daca-wrong-self-defeating-and-cruel/?utm_term=.4a79d888107d.

[2] Catherine E. Shoichet et al., US Immigration: DACA and Dreamers Explained, cnn.com, http://www.cnn.com/2017/09/04/politics/daca-dreamers-immigration-program/index.html (last visited Sept. 10, 2017); Ctr. for American Progress, Study: The Impact of Deferred Action For Childhood Arrivals (DACA) Program Repeal on Jobs (Aug. 27, 2017), https://dreamers.fwd.us/wp-content/uploads/2017/08/20170823-DACA-Job-Loss-Report.pdf.

[3] Shoichet, supra note 2; Johnson, supra note 1; David Bier, Rescinding DACA, The Dream Act, Would Impose Massive Costs On Employers, Newsweek (Sept. 5, 2017), http://www.newsweek.com/rescinding-dreamers-act-would-impose-massive-costs-employers-659813.

[4] Elizabeth Espin Stern et al., 5 Employer Tips For Responding To End of DACA Program, law360.com, https://www-law360-com.ezproxy.hofstra.edu/articles/961220?sidebar=true (last visited Sept. 10, 2017).

[5] Johnson, supra note 1; Stern, supra note 4.

[6] Stern, supra note 4.

[7] Bier, supra note 3.

[8] Ctr. for American Progress, Study: The Impact of Deferred Action For Childhood Arrivals (DACA) Program Repeal on Jobs (Aug. 27, 2017), https://dreamers.fwd.us/wp-content/uploads/2017/08/20170823-DACA-Job-Loss-Report.pdf.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Rachel Gillett, Rescinding DACA Could Cost 700,000 Workers Their Jobs and Employers $6.3 Billion in Employee Turnover Costs, Bus. Insider (Sept. 5, 2017), http://www.businessinsider.com/if-daca-is-rescinded-what-happens-to-workers-employers-2017-9.

[15] Id.

[16] Ctr. for American Progress, supra note 9.

[17] Bier, supra note 4.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

Courts Overrules the NFL Again: U.S Federal Judge Mazzant “Richard Berman-ed” the NFL

By: Morgan Gieser

Before the first pre-season football game could be played, Ezekiel Elliott was suspended by the National Football League (“NFL”) for six games due to domestic violence.[1] Despite the fact that he was never criminally convicted, he was suspended because the NFL personal conduct policy does not require a conviction for suspension.[2] The Commissioner thought the evidence against Elliott was credible enough to establish that he violated the NFL policy.[3] Elliott wants to challenge this suspension in court before the arbitration process is even completed.[4]  The NFL is displeased with his attempt at circumventing the mandatory arbitration process to seek court relief, especially because it is still unknown if court relief is necessary.[5]

Shortly after Elliot filed suit in Texas, the arbitration process was completed.[6] Arbitrator Harold Henderson confirmed the six-game suspension given by the Commissioner of the NFL.[7] The initial suit that was prematurely filed by Elliott will now be deciding if the Cowboys’ superstar running back gets to play past week one of the season.[8] On Friday, September 8, 2017, Texas Federal Judge, Amos Mazzant, granted the “National Football League Players Association’s [(“NFLPA”)] request for a preliminary injunction that stopped the decision from the league-appointed arbitrator from taking effect.”[9] Judge Mazzant stated that “a cloud of fundamental unfairness followed Elliott throughout the NFL’s disciplinary process.”[10] This preliminary injunction can potentially allow Elliott to play the whole season while the union fights to overturn the arbitration decision.[11] While NFLPA scored a victory in Texas, the NFL filed suit in New York to confirm the arbitration order.[12] Even if the NFL has the arbitration decision overturned, the appeal of that order will most likely still lead to Elliot’s suspension.[13]

Judge Mazzant was critical of Henderson and the NFL in his decision, stating “the NFL’s breach of the [Collective Bargaining Agreement (“CBA”)] is only compounded by Henderson’s breach of the CBA.[14] Specifically, Henderson was denied access to certain procedural requirements, which were necessary to be able to present all relevant evidence at the hearing.”[15] Henderson was not given access to investigator notes, a cross-examination of the victim Tiffany Thompson, or able to question Commissioner Roger Goodell.[16]

This is not the first time the NFL has been involved in legal battles over suspensions.[17] In 2015, a United States District Court Judge, Richard Berman, temporarily “sucked the air out of Deflategate, setting Tom Brady free to play the 2015 season while taking a sledgehammer to Roger Goodell’s union-bargained system of justice.”[18] Judge Mazzant similarly “Richard Berman-ed” the NFL, by halting the suspension of Elliott.[19] As a result, this system allows Goodell to play prosecutor, judge, and jury.[20]

Roger Goodell is trying to send a message to all players in the league: “[i]f you assault a woman, your career will be dramatically altered in a negative way.”[21] And there have been many “sickening episodes” involving NFL players and domestic violence.[22] Even if the NFLPA does not approve of the current disciplinary process, they cannot deny that something must be done to combat domestic violence, especially in their sport. While the legal battle is full of uncertainties and must play itself out in the court system, one thing is clear: the Commissioner stands behind preventing future acts of domestic violence in the NFL and beyond.[23]

[1] John Healy, Ezekiel Elliott wins in court and Cowboys RB able to play while lawsuit vs. league plays out, New York Daily News (Sept. 9, 2017, 1:52 AM), http://www.nydailynews.com/sports/football/cowboys-rb-ezekiel-elliott-wins-court-play-lawsuit-article-1.3481200.

[2] Zachary Zagger, NFL Against Cowboy Star’s Suspension Arbitration Challenge, Law 360 (Sept. 5, 2017, 9:48 PM), https://www.law360.com/articles/960594?scroll=1.

[3] Id.

[4] Id.

 

[5] Id.

[6] Healy, supra note 1.

[7] Id.

[8] Id.

[9] Zachary Zagger, Cowboy Star’s Discipline ‘Fundamentally Unfair,’ Judge Says, Law 360 (Sept. 8, 2017, 10:41 PM), https://www.law360.com/articles/961872/print?section=employment.

[10] Id.

[11] Id.

[12] Darren Heitner, This Week In Sports Law: Ezekiel Elliott Suspension, Notre Dame Negligence, Big3 Sued, Forbes (Sept. 10, 2017, 9:30 AM), https://www.forbes.com/sites/darrenheitner/2017/09/10/this-week-in-sports-law-ezekiel-elliott-suspension-notre-dame-negligence-big3-sued/.

[13] Id.

[14] John Healy, Ezekiel Elliott wins in court and Cowboys RB able to play while lawsuit vs. league plays out, N.Y. Daily News (Sept. 9, 2017, 1:52 AM), http://www.nydailynews.com/sports/football/cowboys-rb-ezekiel-elliott-wins-court-play-lawsuit-article-1.3481200.

[15] Id.

[16] Id.

[17] Ian O’Connor, The process needs fixing, but Zeke Elliott’s suspension should stand, ESPN (Sept. 9, 2017, 8:21 AM), http://www.espn.com/nfl/story/_/id/20603303/the-nfl-not-flaws-ezekiel-elliott-dallas-cowboys-surely-earned-six-game-ban.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

Arrival Time and Destination Unknown: The Latest Uber Employment Classification Case

By: Alexander M. Tait

The latest in a long line of Uber employment classification cases, New York Taxi Workers Alliance, et al. v. Uber Technologies, Inc., et al, is currently making its way through the federal courthouse in the Southern District of New York.[1] On June 2, 2016, the “New York Taxi Workers Alliance (“Alliance”) and ten drivers filed” a lawsuit “accusing Uber of employment law violations.[2] The Alliance is a “membership based non-profit union,”[3] that represents “approximately 19,000 members, of whom about 5,000 are Uber drivers.”[4] The Plaintiffs’ claims are two-fold: (1) that “Uber dictates most of the operating parameters and conditions for drivers, down to what kinds of cars to drive, what to wear and when to work,”[5] and (2) that “[Uber] doesn’t pay its workers overtime, . . . doesn’t cover expenses that it should, . . . breached its contract with the drivers,” and that the drivers are entitled to “spread-of-hours pay.”[6] In other words, the plaintiffs’ theory of the case is that Uber and its drivers have an employer-employee relationship due to Uber’s significant control over the drivers, and Uber owes the drivers compensation they seek.[7]

The defendant, Uber, has stood by its “tale as old as time” defense; “its drivers are free to come and go as they please and operate their own small businesses,”[8] which Uber believes classifies them as independent contractors. Furthermore, “Uber has argued the plaintiffs failed to state a claim under the Fair Labor Standards Act or New York Labor Law, and have merely filled their complaint with vague, deficient or bald assertions to prop up the drivers as employees and to accuse certain executives … of wielding significant operational control over drivers.”[9] Uber is steadfast in their belief that drivers are independent contractors and the plaintiffs’ claims do not hold water.[10]

Uber scored a major victory by showing that the Alliance has no standing to sue.[11] The Alliance incorrectly believed that it had standing, since “it ha[d] incurred damages because of the amount of counseling it claim[ed] it ha[d] been forced to provide because of clever and complicated terms the taxi app forces on drivers.”[12] Uber successfully argued that the Alliance does not have standing, “because it does not and cannot qualify as an ‘employee’ within the meaning of the wage and hour statutes upon which its claims are based, thereby precluding it from seeking relief under those statutes.”[13] The dismissal of the Alliance removed nearly 5,000 Uber drivers from the class, leaving only six named plaintiffs.[14]

United States District Judge, Alvin K. Hellerstein, “demanded more particularized pleadings to show viable claims for minimum wage violations” from the remaining six plaintiffs.[15] Uber has attacked the validity of the plaintiffs’ claims throughout the process, but has focused particularly on one because he has “tak[en] four bites of the apple,” and still has not sufficiently plead facts of his earnings as an Uber driver.[16] However, Judge Hellerstein allowed all plaintiffs leave to amend their complaints for a third time after plaintiffs argued they did not “take four a bites of the apple.”[17]

The latest contention in this case arose in September 2017 – whether the drivers are “allowed to assert spread-of hours-pay and “illegal kickbacks” claims.[18] The plaintiffs’ are relying on the fact:

that the district courts in the Second Circuit are split over whether ‘in addition to         minimum wage’ means that an employee earning more than the hourly minimum wage is legally entitled to spread-of-hours pay, which is called for under New York law for those who work shifts totaling more than [ten] hours.[19]

The drivers further support this argument, claiming “[s]ome courts have awarded spread-of-hours pay to employees earning more than the minimum wage without addressing the split.”[20] Uber has continued to try and dismiss the case due to the plaintiffs’ failure to state a claim in light of this argument.[21]

This case is still working its way through the court.[22] Unless Judge Hellerstein dismisses the plaintiffs’ three amended complaints, this case will most likely hang in motion to dismiss “limbo.” Additionally, the drivers will have to continue to attempt to provide sufficient plausible facts that will survive the endless onslaught of motions to dismiss from Uber.

 

[1] Kat Greene, NYC Drivers Hit Uber With New Classification Suit, Law360.com https://www.law360.com/articles/803048 (June 2, 2016, 9:09 PM).

[2] Id.

[3] New York Taxi Workers Alliance, nytwa.org, http://www.nytwa.org (last visited Sept. 7, 2017).

[4] Linda Chiem, Taxi Drivers Slam Uber’s Bid To Ax NY Wage Battle, Law360.com (Jan. 6, 2017, 7:00 PM), https://www.law360.com/articles/878198?scroll=1.

[5] Linda Chiem, Uber Wants NY Cab Drivers’ Wage Battle Slashed, Law360.com (Aug. 22, 2017, 1:40 PM), https://www.law360.com/articles/956461?scroll=1; Greene, supra note 1.

[6] Greene, supra note 1; Linda Chiem, NY Cab Drivers Slam Uber’s Bid To Slash Wage Suit, Law360.com (Sept. 6, 2017, 7:03 PM), https://www.law360.com/employment/articles/960934/ny-cab-drivers-slam-uber-s-bid-to-slash-wage-suit.

[7] Id.

 

[8] Linda Chiem, NY Cab Drivers Slam Uber’s Bid To Slash Wage Suit, Law360.com (Sept. 6, 2017, 7:03 PM), https://www.law360.com/employment/articles/960934/ny-cab-drivers-slam-uber-s-bid-to-slash-wage-suit.

[9] Linda Chiem, Uber Wants NY Cab Drivers’ Wage Battle Slashed, Law360.com (Aug. 22, 2017, 1:40 PM), https://www.law360.com/articles/956461?scroll=1.

[10] Id.

[11] Linda Chiem, Uber Wants ‘Flawed’ NYC Drivers Classification Suit Axed, Law360.com (Aug. 31, 2016, 3:26 PM), https://www.law360.com/articles/834855?scroll=1; Pete Brush, NY Taxi Alliance Out As Plaintiff In Action Targeting Uber, Law360.com (Apr. 4, 2017, 4:24 PM), https://www.law360.com/articles/909672?scroll=1.

[12] Brush, supra note 11.

[13] Chiem, supra note 11; Brush, supra note 11.

[14] Brush, supra note 11.

[15] Id.

[16] Id.

[17] Linda Chiem, NY Cab Drivers Slam Uber’s Bid To Slash Wage Suit, Law360.com (Sept. 6, 2017, 7:03 PM), https://www.law360.com/employment/articles/960934/ny-cab-drivers-slam-uber-s-bid-to-slash-wage-suit.

[18] Linda Chiem, Uber Wants NY Cab Drivers’ Wage Battle Slashed, Law360.com (Aug. 22, 2017, 1:40 PM), https://www.law360.com/articles/956461?scroll=1.

[19] Chiem, supra note 17.

[20] Id.

[21] Id.

[22] Id.

Our Prisoners and Why We Let Them Suffer: It’s Constitutional!

By: Tyler Norris

The Charlottesville protests last month shine a serious light on the inherent racial issues of this country.[1] Whether you agree with white supremacist or the “leftist” anti-protesters, you were certainly aware that since the election of President Donald Trump, there is a new narrative on how to combat these issues.[2] That narrative is confrontation.

The narrative of violent confrontation will not bring solutions to the problems facing the United States. Charlottesville only enabled finger-pointing.[3] White supremacists blame the anti-protestors and “leftists” blame the white supremacists for the violent outcome of the demonstrations.[4] And with the President stating the demonstrations as an “egregious display of hatred, bigotry and violence on many sides,” it seems that there will be zero solutions from the head of state.[5]

Unfortunately, the real solutions to the racial issues of our country are stifled by lack of attention. On August 19, 2017, a week after Charlottesville, the organization iamWE hosted the “Millions for Prisoners Human Rights March” on Washington.[6] This march, virtually unheard of on mainstream media, sought to shine light on the justice system in which prison labor is essentially slave labor.[7] A prison strike last fall, where almost 20,000 prisoners across twenty four states refused to work, went equally overlooked.[8]

The “iamWe” Prison Advocacy Network was “cofounded by human rights activists to address the effects of mass incarceration, the inhumane treatment of prisoners and to assist prisoners and their loved ones.[9] The event, only a couple days after the Charlottesville protests, called for justice on behalf of the hundreds of thousands behind federal and state bars.[10] The organization demands that the Thirteenth Amendment enslavement clause of the Constitution be amendment to abolish “legalized slavery” in America.[11] According to iamWe, the enslavement clause directly promotes and maintains private entities exploiting prison labor, private entities contracted by states/federal government to build and operate prisons, and racial disparities in America’s prison population and sentencing.[12]

Re-writing the Constitution, let alone the Thirteenth Amendment, seems like an impossible task especially in this tumultuous political climate. However, according to iamWE, this may be the only route for employment and wage justice for hundreds of thousands of prisons employed at private and public prisons.[13] The Ashurst-Sumners Act and the Fair Labor Standards Act (“FLSA”) of 1938 “in no way create[] right to minimum wages for prisoners.”[14] Additionally, federal prisoners are not “employees” entitled to receive minimum wage under FLSA, since the labor prisoners perform is not voluntary, but a mandatory work requirement.[15] Finally, pubic prisons enjoy governmental immunity from any possible suit a prisoner can bring.[16]

But what is the big deal? These are prisoners who are being punished for crimes for which they were justly convicted. The big deal is that the minimum prisoner wage, which ranges from $0.23 to $1.15 in dollars per hour, is not enough to overcome the crushing debt awaiting outside prison walls.[17] With 2.2 million people incarcerated in the United States, about half are parents, and at least 1 in 5 have a child support obligation.[18] This overwhelming debt is supplemented by legal fees and fines associated with their incarceration.[19]

The systematic oppression is clearly shown in the population of federal prisons.[20] African Americans and Hispanics make up approximately thirty two percent of the US population, comprising fifty six percent of all incarcerated people in 2015.[21] Further, recent studies show that African Americans represent almost thirty eight percent of incarcerated people in Federal Prisons.[22] In 2015, nearly eighteen percent of all federal prisoners were being held in private prisons, a jump from three percent in 1999.[23]

Despite the prison population declining over the past couple of years, many groups like iamWE share the view that the “confederate” jail and prison system directly embraces the systematic oppression of minority groups.[24] With Attorney General Jeff Sessions reversing an Obama directive to phase out work with private prisons at the federal level, it seems that the Trump Administration is bent on promoting the private prison system.[25] The disturbing fact is that the Obama directive was motivated by a 2016 audit, which found that federal private prisons had more safety and security incidents than comparable public prisons.[26]

With the Charlottesville protests taking up most of the media attention,[27] the spin machine seems to be in full effect to block out any just effort to help the prison population. Hopefully in the future, groups like iamWE will be heard and modern legal slavery will be abolished, or at the very least proper solutions offered.

[1] Matt Stevens, How the Media Captured Charlottesville and Its Aftermath, N.Y. Times (Aug. 17, 2017), https://www.nytimes.com/2017/08/17/business/media/charlottesville-media-trump.html?mcubz=1.

[2] Id.

[3] Id.

[4] Id.

[5] Glen Thursh & Rebecca R. Ruiz, White House Acts to Stem Fallout from Trump’s First Charlottesville Remarks, N.Y. Times (Aug. 13, 2017), https://www.nytimes.com/2017/08/13/us/charlottesville-protests-white-nationalists-trump.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article.

[6] Millions for Prisoners Human Rights March, iamWE prison advoc. network, http://www.iamweubuntu.com/millions-for-prisoners-human-rights.html (last visited Sept. 5, 2017).

[7] About Us, iamWE prison advoc. network, http://www.iamweubuntu.com/about.html (last visited Sept. 5, 2017).

[8] Alice Speri, The Largest Prison Strike in U.S. History Enters its Second Week, The Intercept (Sept. 16, 2016, 9:19 AM), https://theintercept.com/2016/09/16/the-largest-prison-strike-in-u-s-history-enters-its-second-week/.

[9] About Us, iamWE prison advoc. network, http://www.iamweubuntu.com/about.html (last visited Sept. 5, 2017).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Hale v. Arizona, 993 F.2d 1387, 1405 n.16, (9th Cir. 1993).

[15] Nicastro v. Reno, 84 F.3d 1446, 1446 (1996).

[16] U.S. Const. amend. 11.

[17] Section III: The Prison Economy, Prison Pol’y Initiate, https://www.prisonpolicy.org/prisonindex/prisonlabor.html (last visited Sept. 7, 2017).

[18] Eli Hager, For Men in Prison, Child Support Becomes a Crushing Debt, The Marshall Project (Oct. 18, 2015, 5:00 PM), https://www.themarshallproject.org/2015/10/18/for-men-in-prison-child-support-becomes-a-crushing-debt#.LVPp76TM2.

[19] Alana Semuels, The Fines and Fees That Keep Former Prisoners Poor, The Atlantic  (July 5, 2016), https://www.theatlantic.com/business/archive/2016/07/the-cost-of-monetary-sanctions-for-prisoners/489026/.

[20] CRIMINAL JUSTICE FACT SHEET, NAACP, http://www.naacp.org/criminal-justice-fact-sheet/ (last visited Sept. 5, 2017).

[21] Id.

[22] Inmate Race, Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_race.jsp (July 29, 2017).

[23] Abigail Geiger, U.S. Private Prison Population has Declined in Recent Years, Pew Res. Ctr. (Apr. 11, 2017), http://www.pewresearch.org/fact-tank/2017/04/11/u-s-private-prison-population-has-declined-in-recent-years/.

[24] Id.

[25] Id.

[26] Id.

[27] Matt Stevens, How the Media Captured Charlottesville and Its Aftermath, N.Y. Times (Aug. 17, 2017), https://www.nytimes.com/2017/08/17/business/media/charlottesville-media-trump.html?mcubz=1.

LinkedIn and Advertisements: Lawyers Beware

By: Heather Hulkower

Recently, increased advertising regulations have created obstacles in the ever-growing presence of social media in law firms.[1] Two ethics committees, the New York City Bar Committee and the New York County Lawyers Association, discussed the extent to which lawyers’ postings on LinkedIn constituted attorney advertising.[2]

In recent years, there have been issues regarding whether or not lawyers are subject to the regulations of attorney advertising.[3] The First Amendment allows lawyers to advertise in a manner that is not misleading to members of the general public.[4] Bates v. State Bar of Arizona, a United States Supreme Court case, upheld the right of lawyers to advertise their services.[5] However, with the growing use of social media, ethics teams now question if “the mere listing of biographical information on LinkedIn is sufficient to constitute attorney advertising, so that a copy must be preserved for a period of one year and designated as such,” or if “is it more appropriate to look to the primary purpose of the posting to determine whether the lawyer’s subjective intent was to garner the retention of the lawyer or law firm.”[6]

LinkedIn attorney advertising regulations in New York began with the New York Rules of Professional Conduct (“RPC”). RPC 1.0(a) defines an advertisement as “any public or private communication made by or on behalf of a lawyer or a law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.”[7] The primary purpose standard refers to the subjective intent of the lawyer who makes the communication.[8] This intent may be inferred from other factors, including the content of the communication and the audience for the communication.”[9] You may ask: What must you do if your LinkedIn profile is characterized as an advertisement? RPC 7.1(f)(k) explains that when an internet posting constitutes attorney advertising it must be labeled “Attorney Advertising,” be retained by the law firm for a period of one year for computer accessible communications, and include the disclaimer “prior results do not guarantee a similar outcome.”[10] Attorneys also then have the responsibility to review their page at reasonable intervals to confirm its accuracy and ensure that their profile does not contain skills and endorsements to which they can’t honestly claim.[11] For example, if a matrimonial lawyer received an unrequested endorsement for her skills in patent law, she should delete any undeserved praise for legal experience she patently lacks.[12] Two committees differ in opinion in the application of the LinkedIn advertisement regulation.[13] The New York County Lawyer’s Association (“NYCLA”) created a bright line rule, stating that the definition of attorney advertising is “restricted to communications about the lawyer or law firm’s services, the primary purpose of which is retention of the lawyer for pecuniary gain.”[14] This committee took the position that a profile including “subjective statements regarding an attorney’s skills, area of practice, endorsements and testimony from clients is likely to be considered advertising.”[15] In contrast, the City Bar created a more complicated five-step analysis to determine whether a LinkedIn profile would constitute advertising.[16] The City Bar’s analysis concluded that a communication is advertising if: (a) it is made by or on behalf of the lawyer, (b) its primary purpose is to attract new clients for pecuniary gain, (c) the contents relate to the lawyers’ legal services, (d) the contents are intended to be viewed by potential new clients, (e) there is no recognized exception under the Rules of Professional Conduct.[17] This opinion acknowledges that including a list of skills or a description of one’s practice area, without more, is not an advertisement, because endorsements and recommendations can have several purposes, beyond the goal of attracting paying clients.[18]

However, the two committees agree on areas relating to advertising in social media.[19] First, they believe that advertising should be more narrowly defined as, “limited to communications whose primary purpose is retention of the lawyer or law firm for pecuniary gain.”[20] Second, they believe that a description of lawyers’ skills with the intent to garner pecuniary gain would constitute advertisement.[21] Overall, the two committees are working toward more clear regulations in regard to attorney advertising on social media cites, including LinkedIn.[22] Attorneys must now pay attention to who is endorsing them, what skills they are listing, and the extent to which they describe their firm as these categories often fall under advertisements.[23] If these advertisements appear on a LinkedIn profile, the attorney must disclaim them.[24] As our society continues to make technological advancements, the law must conform to these changes.

[1] Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn, N.Y. City Bar, http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin (last visited Aug. 4 2017).

[2] Barry R. Temkin, Social Media and The Rules of Professional Conduct: Is LinkedIn Attorney Advertising, Inside: Summer 2017 (Mound Cotton Wollan & Greengrass), 2017, at 8, https://2ayi2v1dk8d63std52n3a3g5-wpengine.netdna-ssl.com/wp-content/uploads/MCWG-newsletter-summer-2017.pdf.

[3] Id.

[4] U.S. Const. amend. I.

[5] Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

[6] Barry R. Temkin, Social Media and The Rules of Professional Conduct: Is LinkedIn Attorney Advertising, Inside: Summer 2017 (Mound Cotton Wollan & Greengrass), 2017, at 8, https://2ayi2v1dk8d63std52n3a3g5-wpengine.netdna-ssl.com/wp-content/uploads/MCWG-newsletter-summer-2017.pdf.

[7] Model Rules Of Prof’l Responsibility r. 1.0(a) (Am. Bar Ass’n 2017).

[8] Catherine Foti, LinkedIn for Lawyers: Newly Issued Ethical Guidance Makes Social Media Use Less Risky, Forbes (Sept. 4, 2017).

[9] Id.

[10] Model Rules Of Prof’l Responsibility r. 7.1(f)(k) (Am. Bar Ass’n 2017).

[11] Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn, N.Y. City Bar, http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin (Last visited Aug. 4 2017).

[12] New York County Lawyers Association Professional Ethics Committee, NYCLA.org 4 (Mar. 10, 2015), https://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf.

[13] Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn, N.Y. City Bar, http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin (last visited Aug. 4 2017).

[14] Id.

[15] Id.

[16] Barry R. Temkin, Social Media and The Rules of Professional Conduct: Is LinkedIn Attorney Advertising, Inside: Summer 2017 (Mound Cotton Wollan & Greengrass), 2017, at 8, https://2ayi2v1dk8d63std52n3a3g5-wpengine.netdna-ssl.com/wp-content/uploads/MCWG-newsletter-summer-2017.pdf.

[17] Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn, N.Y. City Bar, http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin (last visited Aug. 4 2017).

[18] Catherine Foti, LinkedIn for Lawyers: Newly Issued Ethical Guidance Makes Social Media Use Less Risky, Forbes (Sept. 4, 2017).

[19] Barry R. Temkin, Social Media and The Rules of Professional Conduct: Is LinkedIn Attorney Advertising, Inside: Summer 2017 (Mound Cotton Wollan & Greengrass), 2017, at 8, https://2ayi2v1dk8d63std52n3a3g5-wpengine.netdna-ssl.com/wp-content/uploads/MCWG-newsletter-summer-2017.pdf.

[20] Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn, N.Y. City Bar, http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin (last visited Aug. 4 2017).

[20] Id.

[21] Barry R. Temkin, Social Media and The Rules of Professional Conduct: Is LinkedIn Attorney Advertising, Inside: Summer 2017 (Mound Cotton Wollan & Greengrass), 2017, at 8, https://2ayi2v1dk8d63std52n3a3g5-wpengine.netdna-ssl.com/wp-content/uploads/MCWG-newsletter-summer-2017.pdf.

[22] Id.

[23] Id.

[24] Id.

Ag-Gag Legislation: Fastening the Muzzle on Whistleblowers

By: Samantha Snyder

Downed dairy cows – ones too sick or injured to stand or walk – lie lifeless on the ground.[1] Workers violently kick, jab, shock, and torture these cows with a hose and water, all in an effort to try to force the feeble animals to stand and walk to slaughter.[2] This depiction of unjust abuse is not fiction but an unfortunate reality, knowledge which was attained through video footage after a lengthy undercover investigation conducted by the Humane Society of the United States.[3] The uncovering of these acts led to one of the largest beef recalls in the United States, and resulted in two employees being charged with animal cruelty and California enacting a new statute prohibiting slaughterhouses from receiving or holding downer animals.[4]

This is but one example of the good that comes from undercover investigations, something purported ag-gag[5] legislation hopes to put an end to.[6] Not only can these investigations reveal unethical and harsh treatment of animals and serious food safety issues but also may reveal additional concerns involving the agricultural industry, such as labor and environmental violations.[7] Because these investigations can shed light on serious issues that span such diverse areas of focus, “a coalition of more than 70 national groups opposes ag-gag legislation.”[8]

While ag-gag legislation comes in many shapes and sizes, the commonality is the fact that “they threaten not only to cover up horrific animal abuse and food safety problems, but also other illegal or unethical behavior . . . .”[9] This common goal is reached through varying degrees of prohibited conduct, such as preventing lying on job applications in order to obtain access to the facility, recording or photographing at the facility, and publicizing or circulating said pictures or videos.[10]

In regard to workers’ rights and labor issues, not only do these undercover investigations have the ability to expose unsafe working conditions or worker abuse, ag-gag legislation attempts “to criminalize the recording of sounds or images in animal facilities, no matter the content.”[11] And what is the price for an employee engaging in these prohibited activities? Hefty fines or even jail time. Some laws go even further and allow the employer to sue the whistleblower directly for any reputational damage resulting from information gained during an undercover investigation.[12] Workers in the agricultural industry often “work in dirty, difficult and sometimes dangerous conditions . . .” in addition to receiving “no holiday pay, no overtime, no sick pay and no workers’ [compensation].”[13] Without the ability to engage in undercover investigations, or the photographing or recording of work conditions, these labor violations may never surface.

While twenty six states have introduced some form of ag-gag legislation, they have only been passed in eight states, some of which have been scrutinized by courts.[14] Idaho’s law, which was implemented in 2014, was found unconstitutional under the First Amendment by a federal district court.[15] Even given this negative outcome for ag-gag legislation, states are still continuing to introduce and pass forms of this legislation.[16] For example, on March 23, 2017, Arkansas Governor Asa Hutchinson signed an ag-gag bill into law “despite an outcry from the citizens of Arkansas and Americans at large.”[17]

Public outcry has been and likely will continue to increase given a new tendency to no longer be restricted to the agricultural industry. More and more of the laws being introduced and passed are placing bans on “undercover investigations of virtually all private entities,”[18] including restaurants, hospitals, elder care facilities, veteran care facilities, day care centers, and even schools.[19] It certainly will be interesting to see what new organizations or interest groups join the fight against ag-gag legislation and if more of these laws will be found unconstitutional. For now, though, it appears state legislatures’ are not only fastening the muzzle on individuals in the agricultural industry but are attempting to pursue a “less you know, the better”[20] mantra in all private industries.

[1] Rampant Animal Cruelty at California Slaughter Plant, The Humane Soc’y of the U.S. (Jan. 30, 2008), http://www.humanesociety.org/news/news/2008/01/undercover_investigation_013008.html.

[2] Id.

[3] Id.

[4] Id.

[5] These types of laws are called “ag-gag laws” because the “ag”ricultural industry is “gagging” this form of speech. Animal Legal Defense Fund v. Otter, No. 1:14-104, 2015, at *2 (D. Idaho Aug. 3, 2015).

[6] “[T]he use of exposés to reveal abuse” can be traced back to Upton Sinclair’s book, The Jungle, which revealed the “atrocious conditions inside America’s meatpacking plants and led directly to the passage of the federal Meat Inspection Act, the Pure Food and Drug Act, and the eventual formation of the federal Food and Drug Administration (“FDA”).” What Is Ag-Gag Legislation?, The American Soc’y for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-cruelty/farm-animal-welfare/what-ag-gag-legislation (last visited Apr. 3, 2017).

[7] Id.

[8] Id.

[9] Id.

[10] Kevin C. Adam, Shooting the Messenger: A Common-Sense Analysis of State “Ag-Gag” Legislation Under the First Amendment, 45 Suffolk U. L. Rev. 1129, 1131 (2012).

[11] Id.

[12] Animal Legal Defense Fund v. Otter, No. 1:14-104, 2015, at *2 (D. Idaho Aug. 3, 2015).

[13] Joseph Sorrentino, The One Thing Worse Than Big Dairy’s Abuse of Cows? Its Abuse of Workers, In These Times (Dec. 1, 2014), http://inthesetimes.com/article/17348/big_dairy_work_an_udderly_bad_job.

[14] Ag-Gag Legislation by State, The American Soc’y for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-protection/public-policy/ag-gag-legislation-state (last visited Apr. 3, 2017).

[15] Id.

[16] Animal Legal Defense Fund Statement on Arkansas’ New Unconstitutional Ag-Gag Law, Animal Legal Def. Fund (Mar. 24, 2017), http://aldf.org/press-room/press-releases/animal-legal-defense-fund-statement-on-arkansas-new-unconstitutional-ag-gag-law/.

[17] Id.

[18] Id.

[19] Id; Taking Ag-Gag to Court, Animal Legal Def. Fund, http://aldf.org/cases-campaigns/features/taking-ag-gag-to-court/ (last visited Apr. 3, 2017).

[20] Dayton Martindale, Ag-Gag Laws: The Less You Know The Better, In The Times (June 19, 2015, 10:31 AM), http://inthesetimes.com/rural-america/entry/18071/ag-gag-laws-what-you-dont-know-might-hurt-you.

Trump’s First 100 Days: SEC’s Pay Ratio Rule Being Reconsidered

By: Jennifer Trinkwald

Just weeks after President Trump took office, the United States Securities and Exchange Commission announced on February 6, 2017, that the Commission might reconsider the implementation of Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the pay ratio disclosure rule.[1] First proposed in 2013,[2] Section 953(b) required:

[D]isclosure of median of the annual total compensation of all employees of an issuer (excluding the chief executive officer), the annual total compensation of that issuer’s chief executive officer and the ratio of the median of the annual total compensation of all employees to the annual total compensation of the chief executive officer.[3]

Based on comments received during the formal rulemaking process, the final rule, adopted in August 2015, included a compliance date of the “first fiscal year beginning on or after January 1, 2017,”[4] to give companies ample time to implement the rule.[5] Nevertheless, after only one month of implementation, the Commission has decided to reopen a comment period, due to “unanticipated compliance difficulties.”[6]

According to Acting Commission Chairman, Michael S. Piwowar, the purpose of the comment period is to gain a better understanding of the compliance difficulties, yet, he has also directed Commission staff to “reconsider the implementation of the rule based on any comments submitted.”[7] With the comment period underway, supporters and opponents of the rule are speaking out.[8]  A cohort of United States Senators are urging the Commission to implement the rule as planned, while groups of chief executive officers (“CEOs”) are expressing concerns over the implementation of this rule.[9]

According to nine Senators, including Bernie Sanders, this delay is troubling.[10] The Senators are “concerned that [the Acting Chairman’s] unilateral decision to open a second public comment period on a rule that has already been adopted by the SEC is solely intended to discredit the rule and generate momentum to repeal the statutory requirement.”[11] This rule was adopted after a substantial comment period that brought in 287,400 comments, with a “vast majority” of comments supporting the rule.[12] As the average pay for CEO’s in top companies drastically increased by 997 percent from 1978 to 2014, while compensation for non-supervisory employees rose only 10.9 percent during that time period, supporters believe this rule is necessary to allow for transparency in publicly traded companies.[13]

On the other hand, companies such as Business Roundtable, an association of CEOs of leading U.S. companies, and Pearl Meyer, an independent compensation consulting firm, expressed significant concerns with the rule.[14] Specifically, they are concerned that the rule is “burdensome to companies and immaterial to understanding their compensation practices” and, as a result, the rule does not achieve what it has set forth to do.[15] These companies argue further that the disclosure is not only burdensome, but it will also create discord amongst the employees of the companies subject to the rule.[16]

Whatever the argument, it is clear that the Pay Ratio Rule comes with a great deal of support and opposition, however, as the rule successfully passed the thorough rule making process, in my opinion, the Senators seem to have the stronger argument.[17] The announcement of this new comment period, just one month after implementation, raises the question of what the real reason for reconsideration is.[18] Is really a result of negative effects from the implementation or the Acting Chair Piwowar’s belief that the rule is “nothing more than an attempt by ‘Big Labor’ to shame CEOs”?[19] Whatever the true reason, only time will tell what will come of the Commission’s Pay Ratio Rule.

[1] Michael S. Piwowar, Reconsideration of Pay Ratio Rule Implementation, U.S. Sec. & Exch. Comm’n (Feb. 6, 2017), https://www.sec.gov/news/statement/reconsideration-of-pay-ratio-rule-implementation.html.

[2] Corporate Governance Issues, Including Executive Compensation Disclosure and Related SRO Rules, U.S. Sec. & Exch. Comm’n, (July 1, 2015), https://www.sec.gov/spotlight/dodd-frank/corporategovernance.shtml.

[3] Pay Ratio Disclosure, Dodd-Frank Wall Street Reform and Consumer Protection Act Release Nos. 33-9452, 34-70443 (Sept. 18, 2013).

[4] Piwowar, supra note 1; Pay Ratio Disclosure, Dodd-Frank Wall Street Reform and Consumer Protection Act Release Nos. 33-9877, 34-75610 (Oct. 19, 2015).

[5] See Piwowar supra note 1.

[6] Id.

[7] Id.

[8] See Letter from Robert Menendez, Jack Reed, Elizabeth Warren, Chris Van Hollen, Richard J. Durbin, Jeffrey A. Merkley, Al Franken, Bernard Sanders, & Cory A. Booker, Senators, U.S. Senate, to Michael Piwowar, Acting Chair, U.S. Sec. & Exch. Comm’n (Mar. 21, 2017), https://www.menendez.senate.gov/imo/media/doc/Letter-to-SEC-CEO-Pay-Ratio%202017-03-21-Signed-Final.pdf [hereinafter Letter from Senators]; Letter from John Hayes, Chair, Corporate Governance Committee Business Roundtable, to Michael Piwowar, Acting Chair, U.S. Sec. & Exch. Comm’n (Mar. 23, 2017), http://businessroundtable.org/resources/business-roundtable-comment-letter-sec-implemention-pay-ratio-rule; Letter from David N. Swinford, President & CEO, Pearl Meyer, to Michael Piwowar, Acting Chair, U.S. Sec. & Exch. Comm’n (Mar. 23, 2017), https://www.pearlmeyer.com/pearl-meyer-statement-reconsideration-pay-ratio-rule-implementation.pdf.

[9] See Letter from John Hayes, supra note 8; See Letter from David N. Swinford, supra note 8; See Letter from Senators, supra note 8.

[10] Letter from Senators, supra note 8.

[11] Id.

[12] Id.

[13] Id.

[14] Letter from John Hayes, supra note 8; Letter from David N. Swinford, supra note 8.

[15] Letter from John Hayes, supra note 8; see also Letter from David N. Swinford, supra note 8.

[16] See Letter from John Hayes, supra note 8; Letter from David N. Swinford, supra note 8.

[17] See Letter from Senators, supra note 8.

[18] See id.

[19] See id.

Let’s Play Ball: Minor Leaguers v. The MLB

By: Allison Stapleton

A Ninth Circuit Magistrate Judge recently granted class certification to more than 2,200 minor league baseball players, alleging Fair Labor Standards Act (“FLSA”) collective action claims against Major League Baseball (“MLB”) and several of its clubs.[1] The case, brought by minor leaguers Aaron Senne, Michael Liberto, and Oliver Odle, individually and on behalf of others similarly situated, seeks class action damages from the MLB’s alleged habitual violation of the FLSA.[2] The minor leaguers allege that, “minor league ballplayers are not paid the minimum wage or overtime, with some earning as little as $1,100 per month during the season despite spending more than 50 hours working each week,” and were certified as a class in the Ninth Circuit based on the individual players’ claims over hours worked during “spring training and California League games on a classwide basis.”[3]

Pursuant to the FLSA, non-exempt employees who work over forty hours in a week must be paid “at a rate not less than one and one-half times the regular rate at which he is employed,” for each additional hour worked over the forty-hour mark.[4] The minor leaguers claim that the MLB has systematically denied players covered under the FLSA overtime compensation for games and training required over the course of their employment.[5] The MLB may be considered an enterprise under the FLSA, which subjects the organization to the provisions of the FLSA.[6] The MLB can also arguably be exempt from the FLSA under the “seasonal exemption” of 13(a)(3).[7] The provision provides, “any employee employed by an establishment which is an amusement or recreational establishment, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33-1/3 per centum of its average receipts for the other six months of such year.”[8]

The minor league players’ salaries are paid by the major league teams that have affiliated minor league teams, which subjects the MLB to potential liability as an employer.[9] The MLB argues that the individual minor leaguer’s experiences vary too greatly for class certification under Rule 23 of the Federal Rules of Civil Procedure.[10] The court denied the minor-leaguers’ original motion for class certification for the same reason MLB argues the recertification is flawed; the MLB contended, “players’ individual experiences varied too much and that an employment survey used to estimate the number of hours they worked was flawed.”[11]

The lawsuit by the minor leaguers argues that minor league players are “working poor” and earn two to three times less than fast food workers, under the poverty level.[12] The players further allege that the MLB violates the FLSA by not paying minor leaguers for their participation in pre-season spring training, which they argue is entirely unpaid labor.[13] The MLB is seeking the Ninth Circuit judge’s class certification of the minor leaguers as this litigation continues.[14]

[1] Zachary Zagger, MLB Looks To Appeal Minor Leaguer Class Cert. in Wage Row, Law 360 (March 22, 2017, 5:23 PM),

https://www.law360.com/employment/articles/904871/mlb-looks-to-appeal-minor-leaguer-class-cert-in-wage-row.

[2] See Complaint for Violations of Federal and State Wage and Hour Laws, Senne v. Comm’r- of Baseball (No. 00608) (N.D. Cal. Feb. 7, 2014).

[3] Id.

[4] 29 U.S.C.A. § 207.

[5] Zagger, supra note 1.

[6] Fact Sheet #14: Coverage Under the Fair Labor Standards Act, United States Department of Labor (FLSA) (July 2009), https://www.dol.gov/whd/regs/compliance/whdfs14.htm.

[7] Fact Sheet #18: Section 13(a)(3) Exemption for Seasonal Amusement or Recreational Establishment Under the Fair Labor Standards Act (FLSA), United States Department of Labor, https://www.dol.gov/whd/regs/compliance/whdfs18.pdf (last visited Apr. 2, 2016).

[8] Id.

[9] Bill Shaikin, Should minor leaguers get minimum wage and overtime pay? Baseball says no., Los Angeles Times (June 29, 2016, 12:54 PM), http://www.latimes.com/sports/sportsnow/la-sp-minor-league-wage-lawsuit-20160629-snap-story.html.

[10]See Senne et al v. Office of the Commissioner of Baseball, et al, Justia, (Mar. 7, 2017), https://docs.justia.com/cases/federal/district-courts/california/candce/3:2014cv00608/274347/782.

[11] Fola Akinnibli, Minor Leaguers Take Another Crack at Cert. in Wage, OT Row, Law 360 (Sept., 15, 2016, 5:02 PM),

https://www.law360.com/articles/840452?scroll=1.

[12] Ted Burg, Most Minor League Ballplayers Earn Less Than Half as Much Money as Fast-Food Workers, USA Today (Mar. 6, 2014, 3:25 PM), http://ftw.usatoday.com/2014/03/minor-leaguers-working-poor-lawsuit-mlb-bud-selig.

[13] Jeremy Venook, Minor Leagues, Minimal Wages, The Atlantic (Sept. 21, 2016), https://www.theatlantic.com/business/archive/2016/09/minor-leagues-minimum-wage-lawsuit/500216/.

[14] Zagger, supra note 1.