Constitutional Right to Engage in Sex Work?

By: Adriana Gionis

Erotic Service Provider Legal Education and Research Project (“ESPLER”) is a California based sex worker advocacy group.[1] Recently, ESPLER, three former prostitutes, and a disabled male,[2] challenged California’s law criminalizing the commercial exchange of sexual activity.[3] Plaintiffs argued that the law is unconstitutional, violating the First and Fourteenth amendments, because it is discriminatory on its face and as applied.[4]

Specifically, ESPLER claimed that the anti-prostitution violates (1) the Fourteenth Amendment substantive due process right to sexual privacy, (2) the freedom of association under the First or Fourteenth Amendments, (3) the Fourteenth Amendment substantive due process right to earn a living, and (4) the First Amendment freedom of speech.[5] Plaintiffs rely on the 2003 ruling in Lawrence v. Texas, holding that the due process liberty right protected consensual sexual conduct.[6]

In March of 2016, The United States District Court for the Northern District of California dismissed the case for failure to state a claim.[7] The judge stated that plaintiffs “failed to demonstrate that they have a protectable liberty interest in the profession of prostitution.”[8] Furthermore, the generalized ban of the profession “does not pose a due process problem.”[9] The Court also rejected the argument that Lawrence v. Texas protects the “intimate association between a prostitute and a client.”[10]

The Ninth Circuit affirmed the dismissal, agreeing with the District Court that there is “no constitutional right to engage in illegal employment, namely, prostitution.”[11] However, it did state that under Lawrence v. Texas, California’s law might require more than the rational basis scrutiny applied by the lower court.[12] During the hearing, conservative Judge Carlos Bea asked, “Why should it be illegal to sell something that it’s legal to give away?”[13] Judge Consuelo Callahan added that the right to prostitution could conceivably be “a natural extension” to the holding in Lawrence v. Texas, because similar to gay sex, prostitution is historically “subject to moral disapproval.”[14]

This case revives the debate over how the state can most effectively protect sex workers. Proponents of decriminalizing prostitution argue that voluntary prostitution should be treated as legitimate work and that making it illegal marginalizes members of society.[15] People with physical disabilities, like one of the plaintiffs in this case say prostitution provides them an opportunity to experience intimacy that they would not otherwise have.[16] Opponents, on the other hand, say criminalization deters drug use, transmission of disease, and violence against women.[17]

ESPLERP has recently filed a petition in the Ninth Circuit for a rehearing en banc.[18]

It will be interesting to see whether the Court will reconsider its holding. ESPLERP says it will leave “no stone unturned in seeking justice” for what they believe is a constitutional right.[19]

 

[1] Emily ShugermanJeremy B White, Prostitution could be legalised in California after case is allowed forward, Independent (Oct. 20, 2017, 1:30 PM), http://www.independent.co.uk/news/world/americas/california-prostitution-legalisation-sex-work-case-allowed-go-forward-a8011306.html.

[2] Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, C 15-01007 JSW, 2016 WL 1258638, at *1 (N.D. Cal. Mar. 31, 2016), aff’d, 880 F.3d 450 (9th Cir. 2018), amended, 881 F.3d 792 (9th Cir. 2018); see also Shugerman, supra note 1.

[3] Cal. Penal Code § 647 (Westlaw) (prohibiting “any lewd act between persons for money or other consideration”).

[4] Id.

[5] Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, 880 F.3d 450, 454 (9th Cir. 2018), amended, 881 F.3d 792 (9th Cir. 2018).

[6] Lawrence v. Texas, 539 U.S. 558, 599 (2003).

[7] Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, No. C 15-01007 JSW, 2016 WL 1258638, at *7 (N.D. Cal. Mar. 31, 2016), aff’d, 880 F.3d 450 (9th Cir. 2018), amended, 881 F.3d 792 (9th Cir. 2018).

[8] Id.

[9] Id.

[10] Id.

[11] Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, 880 F.3d 450, 454 (9th Cir. 2018), amended, 881 F.3d 792 (9th Cir. 2018).

[12] Id.

[13] Federal court mulls challenge to California’s prostitution ban, Fox News (Oct. 20, 2017), http://www.foxnews.com/us/2017/10/20/challenge-to-californias-prostitution-ban-may-proceed-judges-rule.html.

[14] Id.

[15] Shugerman, supra note 1.

[16] Alice Robb, Disabled Men Explain the Real Reasons They Paid for Sex, The Cut (Sept. 22, 2014, 9:30 AM), https://www.thecut.com/2014/09/disabled-men-explain-why-they-paid-for-sex.html.

[17] Brief for Appellee at 26, Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, 2016 WL 7125228 (9th Cir.).

[18] ESPLERP Files For A Rehearing Before Full Ninth Circuit To Continue Fight For Sexual Privacy, ESPLER Project Inc. (Jan. 31, 2018), https://esplerp.org/esplerp-files-for-a-rehearing-before-full-ninth-circuit-to-continue-fight-for-sexual-privacy/.

[19] Id.

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The Opioid Epidemic and the Shrinking Workforce

By: Jennifer Waite

In 2016 there were over 42,000 opioid-related deaths in the United States, which is the leading cause of death among Americans under the age of fifty.[1] The rise in abuse of opioids has led to the death of thousands of what would have been capable workers; it “has incapacitated thousands of working-age people whom employers would otherwise be eager to hire.”[2] An employee with an opioid addiction can halt productivity, increase costs in hiring and training of new employees, and also endanger themselves as well as their colleagues.[3]

There are currently about six million job openings, with an unemployment rate at a seventeen year low of four percent, however employers are struggling to fill positions.[4] Due to this struggle, many employers are coping with a shrinking workforce by turning a blind eye to opioid abuse.[5] These employers are tolerating recovering addicts, as long as the addicts are honest about past criminal histories, and are not assigned to work with other recovering addicts.[6]

Additionally, many employers have become lenient in regard to drug testing.[7] Some businesses have opted to forego drug testing altogether, “due to an increased difficulty in hiring and retaining [a] sufficient number of workers who can successfully pass a drug test.”[8] Whereas, other employers have chose to provide counseling and educational resources to their addict employees.[9] Employers reserve the right to enforce disciplinary actions and termination for drug-related conduct, but employers seem to first provide a second chance to employees after failing a drug test by allowing them to receive help.[10] The second chance agreement is conditioned upon the successful completion of a drug-counseling program.[11]

However, many employers do not have the luxury of tolerating or turning a blind eye to addiction.[12] For example, jobs that involve working with children or those in health care cannot hire someone with a criminal record, much less a drug addiction.[13] Similarly, many manual labor industries, such as construction, which are inherently dangerous industries, cannot risk fatal or serious mistakes.[14] These employers have random drug testing policies, where one employee is chosen per month to be tested for drugs.[15] While this may incentivize employees to remain sober, drug-testing costs remain high for employers and money is wasted when employees fail the drug test.[16] Many drug tests used do not test for synthetic opioids, such as oxycodone and fentanyl.[17] Thus, employees who are active drug abusers are a liability in many industries, and employers cannot hire them despite the need for a workforce.[18]

[1] Josh Katz, The First Count of Fentanyl Deaths in 2016: Up 540% in Three Years, N.Y. Times (Sept. 2, 2017), https://www.nytimes.com/interactive/2017/09/02/upshot/fentanyl-drug-overdose-deaths.html.

[2] Lydia DePillis, The Opioid Crisis is Draining America’s Workforce, CNN Money (Feb. 22, 2018, 7:56 AM), http://money.cnn.com/2018/02/22/news/economy/workforce-opioid-crisis/index.html

[3] Catarina Saraiva et al., Opioids on the Job are Overwhelming American Employers, Bloomberg (Sept. 20, 2017, 5:00 AM), https://www.bloomberg.com/news/articles/2017-09-20/overdosing-on-the-job-opioid-crisis-spills-into-the-workplace.

[4] DePillis, supra note 2.

[5] Id.

[6] Id.

[7] Rob Robenalt, 3 Emerging Trends in Labor and Employment Law for 2018, Industry Week (Dec. 19, 2017), http://www.industryweek.com/talent/3-emerging-trends-labor-and-employment-law-2018.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] DePillis, supra note 2.

[13] Id.

[14] Id.

[15] Saraiva, supra note 3.

[16] Id.

[17] Id.

[18] Id.

Trump’s Administration: Draining a Swamp near You, Not Washington

By: Tyler Norris

President Donald Trump’s proposal for federal employee cuts and hiring freezes may hit closer to Main Street than Pennsylvania Avenue.[1] In President Trump’s first State of the Union address, he lauded the passage of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (hereinafter “VA Accountability Act”), which he signed in June of 2017.[2] President Trump stated:

Last year, Congress also passed, and I signed, the landmark VA Accountability Act. Since its passage, my administration has already removed more than fifteen hundred VA employees who failed to give our veterans the care they deserve. And we are hiring talented people who love our vets as much as we do.[3]

Subsequently, President Trump explained that the VA Accountability Act should be used as a model extending to all agencies in an attempt to “remove federal employees who undermine the public trust or fail the American people.”[4] In stating that the federal employee workforce will “drive to make Washington accountable,” President Trump seems to misunderstand the federal employee workforce.[5] Only fifteen percent of the federal workforce is based in Washington, so the majority of reductions would occur in other states.[6] Most federal employees are based in California (250,000 federal employees), Texas (200,000 federal employees), Virginia (178,000 federal employees), and Maryland (147,000 federal employees).[7]

The VA Accountability Act requires training and procedures for VA employees, whom wish to make disclosures of VA wrongdoing (providing procedures for the removal, demotion, suspension, or other punishments of VA employees based on performance or misconduct).[8] Employees accused of wrongdoing have a shorter appeals process, which prior to the VA Accountability Act could have lasted several years.[9] The legislation prohibits employee compensation during the appeal process.[10]

The Department of Veteran’s affairs (hereinafter “The Department”) is infamous for administrative weaknesses, which has made it difficult for The Department to effectively and efficiently implement improvements.[11] Several cases, consisting of corruption and misuse of taxpayer funding, wrinkle The Department’s credibility.[12] For example, in 2014, medical facilities nationwide were found covering up delays in providing care, causing waits as long as four months to appear much shorter.[13] The Department fired fewer than ten people connected to this wait list scandal (likely due to the incredibly long appeals process).[14] Senator Marco Rubio, whom sponsored and drafted the bill in 2017, stated, “[t]hese changes are crucial to ensure that there’s accountability at the VA so that it can deliver for our veterans.”[15]

On the other hand, The Department’s Union claims that accountability is most achievable by filling the forty-nine thousand vacancies within The Department.[16] However, many of the forty-nine thousand vacancies are positions for medical doctors and nurses.[17] This would definitely be hard to fix with the new firing “express lane” at The Department, courtesy of President Trump and the VA Accountability Act.[18]

If President Trump seeks to extend the mechanisms under the VA Accountability Act to other federal departments, then he should prepare for the loss of employment countrywide.[19] The federal workforce consists of 2 million permanent, full-time, non-seasonal employees, as well as several hundred thousand temporary, part-time or seasonal workers, excluding the self-funding U.S. Postal Service.[20] Most of the federal workforce receives various protections under civil-service law, including the right to appeal personnel actions.[21] Although it is probably wishful thinking, I believe President Trump should examine this closely before attempting to liquidate the federal workforce in seeking to “drain the swamp” in Washington D.C.

 

[1]Chase Gunter, White House Looks to Cut Workforce, Civilian Side Funding, FCW (Feb. 12, 2018), https://fcw.com/articles/2018/02/12/civilan-pay-benefits-cut-budget.aspx.

[2] President Donald J. Trump’s State of the Union Address, (Jan. 30, 2018), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/.

[3] Id.

[4] Id.

[5] Id.

[6] Federal Employees by State, Governing (Jan. 19, 2018), http://www.governing.com/gov-data/federal-employees-workforce-numbers-by-state.html.

[7] Id.

[8] 38 U.S.C.A. § 323 (2017).

[9] Id.

[10] Id.

[11] Debra A. Draper, Veterans’ Health Care Limited Progress Made to Address Concerns That Led to High-Risk Designation, GAO (Mar. 15, 2017), https://www.gao.gov/assets/690/683381.pdf.

[12] Reuters Staff, ‘Serious derelictions’ found in U.S. veteran affairs chief’s Europe Trip: report, Reuters (Feb. 14, 2018, 7:47 PM), https://www.reuters.com/article/us-usa-veterans-travel/serious-derelictions-found-in-u-s-veteran-affairs-chiefs-europe-trip-report-idUSKCN1FZ028.

[13] Id.

[14] D’Angelo Gore, Fired Over VA Wait Times, Fact Check.org (Oct. 6, 2016), https://www.factcheck.org/2016/10/fired-over-va-wait-times/.

[15] Geoff Bennet, Congress Passes Bill to Increase Accountability among VA Employees, NPR (June 13, 2017, 4:37 PM), https://www.npr.org/2017/06/13/531810565/congress-passes-bill-to-increase-accountability-among-va-employees.

[16] Id.

[17] Id.

[18] Id.

[19] See generally Julie Jennings & Jared C. Nagel, Federal Workforce Statistics Sources: OPM and OMB, Cong. Res. Serv. 1 (Jan. 12, 2018), https://fas.org/sgp/crs/misc/R43590.pdf.

[20] Id.

[21] 22 U.S.C.A. § 2664a (1987).

Petitioning for Voluntary Recognition as Graduate Students’ Representative by Withdrawing Petitions to the NLRB

By: Stephanie Speirs

After an August 2016 decision, student assistants at private colleges were deemed to have a right to form unions because they were considered employees under the National Labor Relations Act.[1] With the threat of the “Obama-era precedent” being overturned, the Graduate Students United (“GSU”), which represents graduate students at the University of Chicago (“UChicago”), withdrew its petition to the National Labor Relations Board (“NLRB”) earlier this week.[2] The GSU’s fear that the Democratic precedent will be overturned by the newly appointed Republican members, caused them to drop the representation case in favor of seeking voluntary recognition as the graduate students’ collective bargaining unit.[3]

Following the decision that surrounded Columbia University’s student assistants, the GSU won an NLRB supervised election to represent the graduate students at UChicago (the election was won by more than two times the votes against their representation).[4] The NLRB responded to the union’s revocation of their petition by revoking GSU’s election granted certification to represent the UChicago graduate students.[5] The GSU’s first step in achieving its overall goals is its mission to “press UChicago to voluntarily recognize it as the grad students’ collective bargaining representative and come to the bargaining table.”[6] In a statement made by GSU, they recognized that universities, including UChicago, “are using the NLRB as a vehicle to deny [their] rights and not respect [their] vote, win and demand to bargain.”[7] These universities, like Columbia, have recently taken action in challenging the NLRB’s stance against the unionization of graduate students.[8]

A combination of worry from the new appointees to the board and pressure by universities, such as Columbia, that have publicized their position to appeal the NLRB’s August 2016 decision (establishing student assistants as statutory employees), caused union representatives to believe that action is necessary.[9] The American Federation of Teachers and the American Association of University Professors, both of which are affiliates of GSU, also withdrew their petitions for representation.[10] These actions are widespread (going further than only UChicago), for example, a union seeking to represent graduate students at Yale University also withdrew their petition.[11] The unionization of graduate students is ever-changing and “[t]he history of graduate students’ unionization rights before the NLRB is a tale of extreme shifts in precedent, with the board switching its position multiple times over the past two decades.”[12]

These “extreme shifts in precedent” are evidenced in the NLRB’s varying decisions.[13] For example, in 2000 they ruled that graduate assistants were employees, but then later reversed that decision in 2004 in a case that involved Brown University.[14] The decision lasted twelve years until overturning itself again in the 2016 Obama-era decision, the Columbia case.[15] Considering the ever-changing decisions regarding the unionization of graduate students, it is no wonder that “labor law observers speculated that the standard might shift again after Trump’s Republican nominees to the board were seated.”[16] However, with the withdrawal of petitions, the question that remains is whether these union representatives will be voluntarily recognized.[17]

 

[1] Vin Gurrieri, Chicago Grad Student Sidestep NLRB In Union Push, Law360 (Feb. 14, 2018, 9:07 PM), https://www.law360.com/articles/1012754/chicago-grad-students-sidestep-nlrb-in-union-push.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Vin Gurrieri, Columbia Appeal May Slow Grad Student Bargaining to a Crawl, Law360 (Feb. 1, 2018, 10:10 PM), https://www.law360.com/articles/1007740/columbia-appeal-may-slow-grad-student-bargaining-to-a-crawl.

[9] See id.; see also Gurrieri, supra note 1.

[10] Gurrieri, supra note 1.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] See id.

Uber and Waymo Avoid Self-Driving Car Crash

By: Alyssa Costantino

On Friday, February 9, 2018, Waymo LLC (hereinafter Waymo) and Uber Technologies, Inc. (hereinafter Uber) settled their lawsuit.[1] In a battle over trade secrets, Waymo sued Uber in California federal court alleging patent infringement and “violations of federal and state trade secret laws.”[2] Originally, Waymo, which is Google’s self-driving project,[3] alleged patent infringement and trade secret violations, however the allegations were “narrowed all the way down to eight specific trade secrets.”[4] In general, trade secret violation allegations are broad and can include: “formula, pattern, compilation, program, device, method, technique or process.”[5] Waymo claimed that their former employee, Anthony Levandowski, downloaded 14,000 confidential documents, which related to Waymo’s self-driving vehicle technology, and subsequently left the company to work for Otto, a start-up created by himself,[6] which Uber acquired.[7] Yet, Waymo did not name Levandowski as a defendant.[8] Instead, Waymo claimed that Uber “calculated theft,” and gave the company an “illegal ‘shortcut’ in the race to dominate a potential ‘trillion-dollar industry.’”[9] Allegedly, Levandowski took over “[nine] gigabytes of data, transferred it to his laptop, backed it up onto disks that he put in his closet, sent texts about shredding evidence, and deleted texts about shredding evidence . . .”[10] Therefore, Waymo claimed $1.9 billion in damages.[11]

After rejecting a $500 million settlement,[12] Uber agreed to a $245 million settlement with Waymo to ensure that none of “Waymo’s ‘confidential information’ would end up in hardware or software produced by Uber’s self-driving division, known as the Advanced Technologies Group.”[13] Waymo will be “financially invested to some degree in Uber’s future,” since the $245 million settlement will come from a .34 percent equity share of Uber.[14] Thus, Uber and Waymo are not exchanging any money, rather Waymo will own about $245 million in Uber’s stock.[15] In hindsight, considering Uber is valued at $72 billion, this is a reasonable agreement for Uber.[16]

Although Waymo settled and is still the leader in the driverless car world, their problems will not stop here.[17] Foremost, Waymo’s “artificial intelligence technology” is available through other outlets, making it easy for the competition to acquire and compete with Waymo.[18] Since Waymo settled, their competitors did not suffer a setback because Waymo was unable to prove Uber stole and misused their trade secrets.[19] Additionally, Waymo does not manufacture or sell cars, like some of their competitors do (including Ford, General Motors, and Toyota), and moreover, Waymo does not operate their own ride services (like Lyft and Uber).[20] In essence, by not expanding Waymo is limiting their potential, which means that sometime in the near future Waymo may not continue keeping up with the growing driverless realm.[21] Until that time comes, this case will be known as one of the “biggest and most exciting cases in Silicon Valley’s race to build the best self-driving cars.”[22]

 

[1] Cyrus Farivar, It’s all over: Why the Waymo v. Uber Self-Driving Settlement Makes Sense, ars Technica (Feb.10, 2018), https://arstechnica.com/tech-policy/2018/02/its-all-over-why-the-waymo-v-uber-self-driving-settlement-makes-sense/.

[2] Waymo LLC v. Uber Technologies, Inc., 870 F.3d 1350, 1354 (Fed. Cir. Sept. 13, 2017).

[3] Selena Larson, What We Learned in the Waymo v. Uber Case, CNN Tech (Feb. 10, 2018, 1:01 PM), http://money.cnn.com/2018/02/10/technology/waymo-uber-what-we-learned/index.html.

[4] Sarah Jeong, Who Blinked First in Waymo v. Uber?, The Verge (Feb. 9, 2018), https://www.theverge.com/2018/2/9/16997394/waymo-v-uber-trial-settlement-explained.

[5] Sarah Jeong, I’m not so sure Waymo’s going to win against Uber, The Verge (Feb. 8, 2018), https://www.theverge.com/2018/2/8/16993208/waymo-v-uber-trial-trade-secrets-lidar.

[6] Id.

[7] Larson, supra note 3.

[8] Waymo LLC v. Uber Technologies, Inc., 870 F.3d 1350.

[9] Bill Donahue, Waymo Settlement With Uber Ends Wild Ride, Law 360 (Feb. 9, 2018), https://www.law360.com/employment/articles/1011254/waymo-settlement-with-uber-ends-wild-ride.

[10] Jeong, supra note 5.

[11] Heather Somerville & Dan Levine, Uber rejected $500 million settlement with Waymo earlier this week, Reuters (Feb. 9, 2018 2:18 PM), https://www.reuters.com/article/us-alphabet-uber-trial-settlement/uber-rejected-500-million-settlement-with-waymo-earlier-this-week-idUSKBN1FT2Q5.

[12] Andrew J. Hawkins, Uber Rejected a $500 million settlement from Waymo earlier this week: report, The Verge (Feb. 9, 2018), https://www.theverge.com/2018/2/9/16996964/uber-waymo-settlement-500-million-rejected.

[13] Cyrus Farivar, It’s all over: Why the Waymo v. Uber self-driving settlement makes sense, ars technica (Feb.10, 2018), https://arstechnica.com/tech-policy/2018/02/its-all-over-why-the-waymo-v-uber-self-driving-settlement-makes-sense/.

[14] Id.

[15] Id.

[16] Jeong, supra note 4.

[17] Infra text accompanying notes 18-21.

[18] Cade Metz, After Settling With Uber, Waymo Faces Bigger Challenges, N.Y. Times (Feb. 10, 2018), https://www.nytimes.com/2018/02/10/technology/waymo-driverless-cars.html.

[19] Id.

[20] Id.

[21] Id.

[22] Larson, supra note 3.

Russian Athletes’ Last-Minute Plea For Olympic Dreams Are Denied

By: Morgan Gieser

On the eve of the 2018 Winter Olympics, forty-seven Russian athletes and coaches made a last-minute appeal (hereinafter the eleventh hour appeal) to the Court of Arbitration for Sport (“CAS”).[1] These athletes were banned due to violations of the anti-doping policy.[2] The International Olympic Committee (“IOC”) banned Russia’s Olympic Committee following accusations complied by the World Doping Agency that at the 2014 Winter Games in Sochi, Russia, a state-sponsored doping scheme took place.[3] Because Russia was banned from the 2018 Winter Olympics for engaging in “systematic manipulation” of anti-doping rules, Russian athletes who wished to compete had to prove themselves as clean.[4] If an athlete could do this, then the athlete was “invited” to compete as an “Olympic Athletes from Russia” (“OAR”).[5] These OAR athletes are wearing a uniform with their own name on it, however, if one of these athletes win a medal, the Olympic anthem will be played, not the Russian national anthem.[6] One hundred and sixty-nine athletes passed the drug screening, and were invited by the IOC to compete in the 2018 Winter Olympics under the neutral Olympic flag.[7] Some of these athletes who were appealing their decisions even traveled to South Korea with hope that their ban would be overturned.[8]

Thirty-two of the appealing athletes were screened in an effort to receive an invitation to the Olympic Games, but did not pass the vetting completed by the IOC.[9] The remaining thirteen athletes and two coaches previously received lifetime bans for doping.[10] However, the CAS lifted these bans for “want of evidence,”[11] but the IOC refused to allow the athletes and coaches to participate.[12] The CAS denied the eleventh hour appeal,[13] which disappointed many top level athletes.[14] Viktor Ahn, a gold medalist who was appealing his decision, said that “[i]t is outrageous that there is no concrete reason which explains my exclusion from the Olympics, and furthermore people now view me as an athlete who used doping.”[15]

In addition to the athletes’ frustration, other officials in Russia are also displeased with the result.[16] Sergey Parkhomenko, the head of the Russian bobsleigh federation, believed the decision had a “political context.”[17] He also stated that “[w]e’re disappointed in the CAS decision. . . we believe in better but received this instead. We will file lawsuits in other courts (Supreme Court of Switzerland) demanding compensation for material costs.”[18]

 

[1] Christopher Crosby, CAS Upholds Russian Athletes’ Exclusion From Olympics, Law 360 (Feb. 8, 2018, 10:41 PM), https://www.law360.com/sports/articles/1010537/-cas-upholds-russian-athletes-exclusion-from-olympics.

[2] Id.

[3] Id.

[4] James Griffiths, Russian athletes lose last ditch appeal to join the Winter Olympics, CNN (Feb. 9, 2018, 12:49 AM), https://www.cnn.com/2018/02/08/sport/russia-olympics-appeal-rejected-intl/index.html.

[5] Id.

[6] Id.

[7] Crosby, supra note 1.

[8] Griffiths, supra note 4.

[9] Crosby, supra note 1.

[10] Id.

[11] Id.

[12] Id.

[13] Griffiths, supra note 4.

[14] Crosby, supra note 1 (referring to the “[g]old medalist speed skater Viktor Ahn who wrote an open letter criticizing the ICO in January”).

[15] Id. (quoting the letter written by Vikor Ahn).

[16] Griffiths, supra note 4 (referencing the head of Russia’s bobsleigh federation, Sergey Parkhomenko).

[17] Id.

[18] Id.

Will MLB Collusion Rumors Lead to Labor Unrest?

By: Alex Malandra

This offseason, the Major League Baseball (“MLB”) free agent market was the quietest it has been in decades.[1] This lack of activity led to rumors that MLB teams may be colluding together to avoid offering lucrative contracts to free agents.[2] However, legal experts believe a collusion grievance will be difficult to prove without hard evidence of collusion.[3]

Collusion between teams or between players has been explicitly outlawed by the MLB collective bargaining agreement (“CBA”) since the addition of the following language to the first league CBA in 1968: “Players shall not act in concert with other players, and clubs shall not act in concert with other clubs.”[4]

This provision has been mainly applied to the signing of free agents, where two or more teams act in concert to suppress the market for free agent players by either refusing to sign a player for a certain amount of money or refusing to sign players altogether.[5] Collusion may also occur when teams share information amongst themselves about proposed player salaries in order to keep those salaries as low as possible.[6]

However, despite the lack of activity in the offseason market, many legal experts say they do not believe players will file any collusion grievances, because proving an actual agreement to collude between teams will be extremely difficult.[7] There may be other factors which are shifting the economics of MLB.[8] These factors include: (1) teams actively avoiding the newly structured and harsher luxury tax, (2) a free agent market next offseason which features premier names such as Bryce Harper and Manny Machado,[9] and (3) a few big-name players who have been traded this offseason.[10] For instance, the Pirates moved starting centerfielder, Andrew McCutchen, and pitcher Gerrit Cole, and the Marlins traded the reigning National League Most Valuable Player, Giancarlo Stanton, to the Yankees in a salary dump.[11]

Still, with spring training starting later this month, several big-name free agents remain unsigned, including outfielder J.D. Martinez, first baseman Eric Hosmer, and starting pitchers Jake Arrieta and Yu Darvish.[12]

But to prove collusion, the MLB Players’ Association (“MLBPA”) would need some kind of “smoking gun” evidence, such as actual communications or arrangements between teams to delay or altogether not sign a particular free agent or group of free agents.[13] That type of agreement may not exist, and if it does, such an agreement would be difficult for the MLBPA to discover.[14]

Baseball columnist Jeff Passan argues that collusion may not be the best explanation for the slow offseason, saying that baseball’s economic system may just be broken and that the “free-agent impasse represents a reckoning long in the making.”[15] MLB front offices have begun to focus on efficiently managing their teams using “moneyball” tactics, in which teams use empirical analysis of baseball statistics to predict future player performance.[16] This more prudent method of operating may be affecting the free agent market.[17]

With a collusion grievance unlikely, the question remains whether the MLBPA has any leverage to change things, particularly as they recently signed a new CBA that runs through 2021.[18] In response to the quiet offseason, Los Angeles Dodges closer, Kenley Jansen, told fans, “[m]aybe we need to go on strike, to be honest with you.”[19] Prominent player agent Brodie Van Wagenen suggested that players could boycott spring training if teams don’t begin signing players soon.[20] However, MLB Commissioner Rob Manfred has privately stated that a spring training boycott would be a violation of the MLB CBA.[21]

MLB has not had a work stoppage since 1994-95, when the owners’ threatened to impose a salary cap, prompting a player strike in August 1994.[22] While the MLBPA may be short on options right now, if teams continue to disregard signing big-time free agents, MLB may once again face labor unrest in the near future.

 

[1] Zachary Zagger, New MLB Collusion Rumors May Reveal Bigger Issues, Law360.com (Jan. 19, 2018, 10:41 PM), https://www.law360.com/sports/articles/1004027/new-mlb-collusion-rumors-may-reveal-bigger-issues.

[2] Id.

[3] Id.

[4] Marc Normandin, MLB Collusion, Explained, SBNation (Jan. 18, 2018, 7:00 AM), https://www.sbnation.com/mlb/2018/1/18/16882650/mlb-collusion-offseason-free-agency-explainer.

[5] Zagger, supra note 1.

[6] Id.

[7] Id.

[8] Nick Stellini, MLB Owners Seem to Want More Money in Their Pockets, not Those of Players, SportingNews (Jan. 11, 2018), http://www.sportingnews.com/mlb/news/mlb-free-agent-rumors-news-slow-offseason-reasons-owners-collusion-player-salaries/j142ln4ea69f1e5crle43dovx.

[9] Id.

[10] Zagger, supra note 1.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Jeff Passan, Here’s why Baseball’s Economic System Might be Broken, Yahoo Sports (Jan. 16, 2018, 5:46 PM), https://sports.yahoo.com/heres-baseballs-economic-system-might-broken-224638354.html.

[16] Zagger, supra note 1.

[17] Id.

[18] Id.

[19] Dodgers Pitcher Kenley Jansen on Slow MLB Offseason: ‘Maybe we Need to Strike’, USA Today Sports (Jan. 28, 2018, 11:57 AM), https://www.usatoday.com/story/sports/mlb/dodgers/2018/01/28/dodgers-pitcher-kenley-jansen-slow-mlb-offseason-maybe-we-need-strike/1073050001/.

[20] Jerry Crasnick, With Free-Agent Market Slow, Notable Agent Says There is a ‘Rising Tide’ Among Players, ESPN (Feb. 2, 2018, 4:42 PM), http://www.espn.com/mlb/story/_/id/22300069/agent-says-fight-brewing-slow-mlb-free-agent-market.

[21] Id.

[22] Id.

Reverse Sexual Orientation Claims Under Title VII: Is the Claim as “Straight” Forward as you May Think?

By: Thalia Olaya

Title VII protects employees from discrimination based on five protected characteristics: race, color, religion, sex, or national origin.[1] One characteristic that Title VII does not recognize to be legally protected, however, is sexual orientation.[2] Federal courts have grappled with the question of whether or not sexual orientation claims are cognizable under Title VII.[3] The Supreme Court, however, continues to remain silent on this issue.[4] This silence has led some states, including New York, to pass their own laws that do prohibit discrimination on the basis of actual or perceived sexual orientation in employment.[5]

It is no surprise that due to all of this legal uncertainty, federal courts continue to grapple with an additional question related to sexual orientation discrimination – can a heterosexual employee bring a reverse discrimination or retaliation claim against a lesbian, gay, transgender, or queer (“LGBTQ”) boss?[6] On January 2, 2018, in O’Daniel v. Indus. Serv. Sols, a federal district court in Louisiana answered this question.[7]

In this case, Bonnie O’Daniel posted a picture on Facebook that she had taken of a man wearing a dress at Target along with a message stating: “[s]o meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst.”[8] O’Daniel’s suit alleged that she was fired soon after her supervisor, a member of the LGBTQ community, saw the post.[9] In other words, O’Daniel claimed that she had been unlawfully terminated for being a heterosexual woman and thus, validly asserted a claim under Title VII.[10]

In rejecting O’Daniel’s reverse sexual orientation discrimination claim, Judge Bourgeois noted that O’Daniel attempted to “couch her retaliation claim in terms of ‘sex discrimination,’ [but] she [was] in fact proposing to allege a claim for retaliation under Title VII. . . .”[11] Judge Bourgeois pointed out two additional reasons why O’Daniel’s claim failed: (1) even if sexual orientation discrimination was protected under Title VII, O’Daniel didn’t show that she was terminated because of her sexual orientation; and (2) the court was bound by the Fifth Circuit’s consistent rulings that Title VII does not protect employees from employment discrimination based on sexual orientation.[12]

In sum, until the Supreme Court or Title VII decides to protect employees from sexual orientation discrimination, sexual orientation claims, including reverse sexual orientation, will remain a question that courts will wrestle with. In the meantime, it is likely that “straight people” will be precluded from successfully bringing reverse discrimination claims – at least in state courts and federal courts that don’t protect LGBTQ employees.

 

[1] 42 U.S.C.A. § 2000e-2 (West 2017).

[2] Id.

[3] Compare Zarda v. Altitude Express, 855 F.3d 76, 82 (2d Cir. 2017) (rejecting plaintiff’s argument that Title VII’s prohibition on sex discrimination also protected sexual orientation discrimination), with Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 351-52 (7th Cir. 2017) (disagreeing with other circuits and holding that plaintiff alleging employment discrimination on the basis of her sexual orientation was protected under Title VII’s prohibition of sex discrimination).

[4] See Greg Stohr, U.S. Supreme Court Turns Away Sexual Orientation Bias Case, Bloomberg Pol. (Dec. 11, 2017, 9:31 AM), https://www.bloomberg.com/news/articles/2017-12-11/sexual-orientation-bias-case-turned-away-by-u-s-supreme-court.

[5] N.Y. Exec. Law § 296 (McKinney 2017). Under the New York State Human Rights Law, New York defines sexual orientation to include “heterosexuality, homosexuality, bisexuality or asexuality whether actual or perceived.” Id.

[6] O’Daniel v. Indus. Serv. Sols., No. 17-190-RLB, 2018 WL 265585, at *2–3 (M.D. La. Jan. 2, 2018).

[7] Id.

[8] Id. at *1 n.1.

[9] Id. at *1.

[10] Id. at *6 (noting plaintiff’s belief that the alleged employment discrimination based on her heterosexual sexual orientation was prohibited under Title VII as a form of sex discrimination).

[11] Id. at *7 (“It is [] unreasonable for Plaintiff to believe that discrimination based on sexual orientation constitutes protected activity.”).

[12] Id.

ERISA and the “Fiduciary Rule”

By: Allison Castel

The Employee Retirement Income Securities Act (“ERISA”) of 1975 was enacted with the intention to set minimum standards of “fiduciary responsibilities” for financial advisors and brokers in order to protect customers who are investing in retirement accounts such as 401(k)s and Individual Retirement Account (“IRA”).[1] ERISA gives the Department of Labor (“DOL”) the task of promulgating rules for retirement investment advice and the standard of conduct for broker-dealers or advisors providing that advice.[2]

Originally, in 1975, the Department of Labor issued a five part test[3] to determine if the broker or advisor would be held as a fiduciary, subject to certain liabilities.[4] Each prong of this test had to be satisfied for an investment advisor to be considered a fiduciary when recommending a retirement investment.[5]

Due to the complexity and advancement in retirement and pension investment plans over time, President Obama felt a response was necessary to protect investors.[6]

The DOL issued a new rule in April 2016, addressing the need for further regulation of advisors and brokers and the standard of care they provide to customers when giving retirement investment advice.[7] This new rule, known as the “Fiduciary Rule,” raises the standard of liability when a broker or advisor is recommending investments within a retirement plan.[8] The Department of Labor was given the ability to promulgate rules for these broker-dealers and advisors with regard to the appropriateness of this advice when clients are making retirement investments only.[9]

With the change in administration, President Trump recently issued a memorandum asking the Department of Labor to examine the rule, specifically to investigate whether scrutiny of broker-dealers is likely to harm an investor’s access to retirement advice and information, while also increasing litigation and cost for investors and retirees.[10]

Broker-dealers are typically large financial institutions that employ registered representatives who provide investment advice to retail customers and other institutional investors.[11] These individual registered representatives, working for bigger firms, perform a variety of duties which evince different standards of conduct depending on the services being provided, creating confusion for the retail customer.[12]

Currently, the Securities and Exchange Commission is in the process of working on a new rule that would pre-empt the Department of Labor and be sufficient for all types of investments, eliminating the need for the Department of Labor to push or promulgate the “fiduciary rule.”[13] It is in everyone’s best interest to allow the Securities and Exchange Commission to perform their designated function of regulating the financial industry, one that was originally delegated to them when the Securities Act of 1933, Securities Exchange Act of 1934, and the Investment Advisers Act of 1940 were passed.[14]

[1] Fiduciary Responsibilities, U.S. Dep’t of Lab, https://www.dol.gov/general/topic/retirement/fiduciaryresp (last visited Feb. 1, 2018).

[2] Definition of the Term “Fiduciary”; Conflict of Interest Rule–Retirement Investment Advice, Fed. Reg. (Apr. 8, 2016) https://www.federalregister.gov/documents/2016/04/08/2016-07924/definition-of-the-term-fiduciary-conflict-of-interest-rule-retirement-investment-advice (“In light of the breadth and intent of ERISA and the Code’s statutory definition, the growth of participant-directed investment arrangements and IRAs, and the need for plans and IRA owners to seek out and rely on sophisticated financial advisers to make critical investment decisions in an increasingly complex financial marketplace, the Department believes it is appropriate to revisit its 1975 regulatory definition as well as the Code’s virtually identical regulation.”).

[3] Id. (“The regulation provides that an adviser is a fiduciary with respect to any particular instance of advice only if he or she meets each and every element of the five-part test with respect to the particular advice recipient or plan at issue.”).

[4] Chamber of Commerce of the United States of Am. v. Hugler, 231 F. Supp. 3d 152, 161 (N.D. Tex. 2017) (“Broker-dealers are generally subject to a suitability standard, which requires they have a reasonable basis to believe that a recommended transaction or investment strategy involving securities is suitable for the consumer based on the consumer’s investment profile.”).

[5] Definition of the Term “Fiduciary”; Conflict of Interest Rule–Retirement Investment Advice, supra note 2 (“The [1975] regulation narrowed the scope of the statutory definition of fiduciary investment advice by creating a five-part test that must be satisfied before a person can be treated as rendering investment advice for a fee. Under the regulation, for advice to constitute “investment advice,” an adviser who is not a fiduciary under another provision of the statute must–(1) render advice as to the value of securities or other property, or make recommendations as to the advisability of investing in, purchasing, or selling securities or other property (2) on a regular basis (3) pursuant to a mutual agreement, arrangement, or understanding with the plan or a plan fiduciary that (4) the advice will serve as a primary basis for investment decisions with respect to plan assets, and that (5) the advice will be individualized based on the particular needs of the plan or IRA.”)

[6] DOL Fiduciary Rule Explained as of August 31, 2017, Investopedia (Aug. 31, 2017, 10:00 AM), http://www.investopedia.com/updates/dol-fiduciary-rule/.

[7] Definition of the Term “Fiduciary”; Conflict of Interest Rule–Retirement Investment Advice, supra note 2.

[8] Id. (“In light of the breadth and intent of ERISA and the Code’s statutory definition, the growth of participant-directed investment arrangements and IRAs, and the need for plans and IRA owners to seek out and rely on sophisticated financial advisers to make critical investment decisions in an increasingly complex financial marketplace, the Department believes it is appropriate to revisit its 1975 regulatory definition as well as the Code’s virtually identical regulation.”).

[9] See Definition of the Term “Fiduciary”; Conflict of Interest Rule–Retirement Investment Advice, supra note 2.

[10] Memorandum of February 3, 2017, 82 Pub. Papers 9675 (April 8, 2016).

[11] Brokers, FINRA, http://www.finra.org/investors/brokers (last visited Jan 28, 2018) (“Full-service firms typically charge more for each transaction, but they tend to have large research operations that representatives can tap into when making recommendations, can handle nearly any kind of financial transaction you want to make, and may offer investment planning or other services.”)

[12] Sean Ross, Career Advice: Stockbroker Vs. Financial Advisor, Investopedia (Sept. 29, 2015, 2:32 PM), https://www.investopedia.com/articles/professionals/092915/career-advice-stockbroker-vs-financial-advisor.asp; Harlow Keith, Financial Planner Vs. Stockbroker, Chron, http://work.chron.com/financial-planner-vs-stockbroker-27379.html (last visited Feb. 1, 2018).

[13] Nick Thornton, CFA Institute says SEC has immediate authority to clarify broker roles, BenefitsPRO (Jan. 17, 2018), http://www.benefitspro.com/2018/01/17/cfa-institute-says-sec-has-immediate-authority-to (“Clarifying the definition of ‘investment adviser’ contained within the Advisers Act is an important first step the SEC could take toward ensuring that those acting as advisers must in fact register as such.”).

[14] What we Do, U.S. Securities and Exchange Commission, https://www.sec.gov/Article/whatwedo.html (last visited Feb. 1, 2018).

SHOULD NEW YORK ELIMINATE MINIMUM WAGE TIP CREDIT?

By: James Maguire

Whether or not you have worked in the hospitality industry, the practice of tipping has become an American custom.[1] For employees earning less than minimum wage, tips serve as a substantial part of a worker’s income.[2] The current tip credit system in New York allows employers to pay tipped employees less than minimum wage if the employee earns their full minimum wage when calculated with their tips.[3] If an employee does not make at least minimum wage, the employer is required to make up the difference.[4]

On December 17, 2017, Governor Andrew Cuomo continued his fight for protecting minimum wage workers by proposing to eliminate minimum wage tip credits in New York.[5] By eliminating this system, “employers will be required to pay tipped employees the full minimum wage.”[6] The New York labor commissioner recently announced where and when he will conduct hearings discussing this particular issue.[7] The proposal is centered around the fact that tipped workers are hesitant to come forward with complaints about their jobs because they rely on tips so heavily, thus making them more susceptible to exploitation.[8] Furthermore, the governor pointed to a 2014 study by the Restaurant Opportunities Center, showing that “ [w]orkers in states that require the full minimum wage be paid to tipped employees experience half the rate of sexual harassment compared to workers in states that pay lower wages to tipped employees.” [9]

With sexual harassment in the workplace being a highly publicized issue lately, the governor is hoping this proposal can lead to “a safer and more equitable” environment for employees.[10] If it does pass, New York would join seven others states that have eliminated the tip credit system.[11] While this is viewed as another win for minimum wage employees, employers are concerned about the effect of eliminating this system.[12]

In a recent New York City Hospitality Alliance survey, the average server made an average of $25 dollars an hour.[13] If the tip credit system is eliminated, it could cost the average restaurant $160,000 more in wages, taxes, and workers’ compensation, which would most likely cause an increase in prices for the consumer.[14] Finally, employers will use Maine, who recently brought back the tip credit system after an “outcry from restaurant workers,” as a prime example for why this system should not be eliminated.[15] Whether employers can sustain these changes remains to be seen. Thus, it is important for employees and employers to attend these scheduled hearings over the next few months, as this decision will have a significant impact on everyone in this industry going forward.

 

[1] Saskia de Melker and Melanie Saltzman, Why do we tip?, PBS (Jan. 27, 2018, 2:35 PM), https://www.pbs.org/newshour/economy/why-do-we-tip.

[2] Governor Cuomo Unveils 5th Proposal of 2018 State of the State: Examine Eliminating the Minimum Wage Tip Credit to Strengthen Economic Justice in New York State, new york state, https://www.governor.ny.gov/news/governor-cuomo-unveils-5th-proposal-2018-state-state-examine-eliminating-minimum-wage-tip (last visited Jan. 27, 2018).

[3] Patti Mumford, New York State Discusses Eliminating Tipped Wages,Gov Docs (Jan. 27, 3:00 PM), https://www.govdocs.com/new-york-state-discusses-eliminating-tipped-wages/.

[4] Andrew Rigie, Why NYC Restaurants Need The Tip Credit, Forbes (Jan. 27, 2018, 4:30 PM), https://www.forbes.com/sites/andrewrigie/2018/01/15/why-nyc-restaurants-need-the-tip-credit/.

[5] Mumford, supra note 3.

[6] Id.

[7] Shayna Posses, New York To Hold Hearings On Ending Tip Credit, Law360 (Jan. 27, 2018, 3:25 PM), https://www.law360.com/articles/1006093/ new-york-to-hold-hearings-on-ending-tip-credit.

[8] Governor Cuomo Unveils 5th Proposal of 2018 State of the State: Examine Eliminating the MinimumWage Tip Credit to Strengthen Economic Justice in New York State, supra note 2 (“In practice, many employers find it difficult to keep track of employee tips properly, especially in industries where tips are not a steady and reliable source of income that can be depended upon by workers to meet their living expenses, and where daily and weekly fluctuations make it difficult for workers to know whether they are being underpaid. Complicated tip credit recordkeeping can make it difficult for employers to know whether they are meeting their obligations, and can be a vehicle for wage theft when employers fail to pay workers properly.”).

[9] Id.

[10] Id.

[11] Mumford, supra note 6.

[12] Rigie, supra note 4.

[13] Id.

[14] Id.

[15] Id.

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