Not so brief: the independent contractor Dilemma

By: Nicholas G. Bohatyritz

            The National Labor Relations Board (“NLRB”) is reconsidering the standard it uses when determining whether workers are classified as independent contractors.[1] Under Section 2(3) of the National Labor Relations Act (“NLRA”), workers classified as independent contractors lack  the acts protections such as the right to unionize.[2] Currently, the NLRB uses the common law agency test that originated in NLRB v. United Insurance Co. of America and modified in SuperShuttle DFW when making their determination on whether a worker qualifies for these protections as an employee.[3] However, in the pending case, The Atlantic Opera, Inc. the NLRB is allowing parties and interested amici to make their arguments in briefs on which standard the court should apply to workers moving forward.[4]

             As of March 17, 2022, forty-two amicus briefs were filed with the NLRB for The American Opera, Inc. case.[5]These briefs advocated for either staying with the standard established in SuperShuttle DFW, returning to the standard set forth in FedEx Home Delivery, or adopting an entirely new standard.[6] Originally, under the FedEx Home Delivery standard, the court found entrepreneurial opportunity as merely one of many factors used in determining whether workers are employees.[7] Instead of this factor being dispositive, the court decided that they must look to a series of ten factors from the Restatement (Second) of Agency along with this eleventh factor of whether workers specifically have “significant entrepreneurial opportunity for gain or loss.”[8] After examining these factors, the court then must make a final determination on a worker’s employment status.[9] Accordingly, there is not a single factor that is determinative on its own.[10]

            Unlike FedEx Home Delivery, the current standard of SuperShuttle DFW puts greater weight on the factor of entrepreneurial opportunity.[11] In this case, the court overrules FedEx Home Delivery by holding that that the test used in that case diminished the “significance of entrepreneurial opportunity” and overemphasizes factors that place significance on how much control an employer has over a worker.[12] In addition, the court found that the court tried to confine this factor to discovering whether an independent contractor is actually “rendering services as part of an independent business.”[13] In sum, court in SuperShuttle DFW found that entrepreneurial opportunity is a significant factor in the determination process and that the more discretion workers have in making their decisions then the more likely are acting as independent contractors.[14]

            The NLRB in The Atlantic Opera, Inc. has an opportunity to reconsider the independent contractor standard and either maintain the SuperShuttle DFW standard, adopt the FedEx Home Delivery standard, or create a new standard.[15]Any change in the NLRB’s independent contractor status may implicate a change in which more workers are considered employees within the protection of the NLRA.[16] If the NLRB adopts the FedEx Home Delivery standard, more workers will be classified as employees with the protections provided under the NLRA.[17]  It remains unclear how the NLRB will rule in The Atlantic Opera, Inc. but one thing is for certain; the independent contractor dilemma continues[18]

[1] See NLRB Invites Briefs Regarding Independent Contractor Standard, nat’l labor Relations Bd. (December 27, 2021), (inviting briefs to be filed arguing for which standard should be used in the case of The American Opera, Inc.).

[2] See 29 U.S.C.S. § 152(3) (stating that those not classified as “employees” are not protected by the act).

[3] See NLRB v. United Insurance Co. of America, 390 U.S. 254, 257 (explaining that the court applies the common law agency test when determining the employment status of workers).

[4] NLRB, supra note 1.

[5] NLRB Is Looking to Review (Again) Independent Contractors And Who is Covered, the nat’l law review, (March 17, 2022).

[6] Id.

[7] See FedEx Home Delivery, 361 N.L.R.B. 610, 610 (N.L.R.B. September 30, 2014) (finding that entrepreneurial opportunity should be a factor in the NLRB’s determination but only so far as the constraints “imposed by a company on the individual’s ability to pursue this opportunity”).

[8] See id. (explaining how the NLRB uses eleven factors when determining whether a worker is an employee under the NLRA’s protection or an independent contractor with no protection).

[9] See id. at 11 (explaining how more weight is given to a factor depending on the circumstances of a particular case).

[10] Id.

[11] NLRB, supra note 1.

[12] See SuperShuttle DFW, Inc., 2019 NLRB LEXIS 15, 34 (N.L.R.B. January 25, 2019) (informing how the test in FedEx Home Delivery determined that the more control that an employer has over a worker, the more likely that the worker is an employee) The court described this test as shifting the focus of the test to economic factors and away from any consideration of entrepreneurial opportunity. Id.; NLRB Rides the SuperShuttle Back to the Common-Law Test for Independent Contractors, obermayer,,unionize%20under%20the%20National%20Labor%20Relations%20Act%20%28NLRA%29 (February 4, 2019).

[13] Id. at 36.

[14] Id. at 46.

[15] NLRB Is Looking to Review (Again) Independent Contractors And Who is Covered, the nat’l law review, (March 17, 2022).

[16] Id.

[17] See generally id. (indicating that the NLRB has changed its standard before and there is no reason to believe that they will not again).

[18] See generally id. (explaining how both employers and employees have to prepare for how any change in the independent contractor standard may affect them).

What’s the Catch? Concerns Over the MLB and its Deal with MLBPA

By: Erica Bross

After an intense three-month lockout over highly contested issues, Major League Baseball (“MLB”) and the Major League Baseball Labor Association (“MLBPA”) have come to an agreement over the new collective bargaining agreement (“CBA”).[1]  The MLBPA voted 26-12 to approve the deal despite the longest work stoppage in the sport for the last 26 years.[2]  These last few months of negotiating have resulted from years of mistrust of management and frustration from multiple MLB players.[3]  

Some of this frustration stems from the lack of competition among teams, the chess game played by front offices, free agency, and the luxury tax.[4]  Not to mention the bargaining tactics used by the MLB that further engrained the mistrust of the players.[5]  Toronto Blue Jays pitcher and representative with the MLBPA, Ross Stripling, stated there was a lack of transparency as the MLB sent a fine print of their proposal around midnight that contained terms they had never seen before.[6]   The frustration was intensified as this proposal was sent right before the deadline the MLB imposed.[7]  As this baseball season comes to start on April 7 on opening day, there are concerns over the impact of the MLB lockout and its negotiation over this new agreement. 

There is a clear mistrust on both sides of the bargaining table as this lockout will be the second time in the last three years the MLB will not play a full season.[8]  A lockout is generally defined as an employer withholding work from employees to apply economic pressure on employees and their union to accept the terms of collective bargaining.[9]   This tactic is legal under federal labor law as long as it fulfills the requirements under Section 8(a)(5), “to refuse to bargain collectively with the representatives of his employees…” under the National Relations Labor Act (“NLRA”).[10]  Here, the MLB attempted to pressure the MLBPA yet again to succumb to their terms.  But the MLBPA was not satisfied with the terms in December 2021, the expiration date to make a deal that ultimately triggered Rob Manfred, the Commissioner of the MLB, to engage in a lockout. Engaging in a lockout also concerns antitrust exceptions related to the MLB. The only way to ignite this “nuclear option” is to have the MLBPA, decertify as a union so the players could file an antitrust lawsuit.[11]  Luckily, the parties were able to reach an agreement but if the relationship between the MLB and MLBPA does not improve, this option may become more appealing in years to come. 

Another cause for concern is the bargaining tactics used by the MLB. As an employer, there is a legal duty to bargain in good faith with the union representing the employees.[12]  These duties include not making changes without bargaining with the appropriate representative of the union employees, making unilateral changes with prior notice or bargaining with the union.[13]  The list of these duties is long but the importance of the principle of bargaining in good faith is what keeps a relationship between the employer and union at bay. The bargaining tactics that were used by the MLB this time around lacked transparency and were considered disingenuous at times.[14] In order to improve the relationship between the players and the owners, bargaining tactics used by both parties need to be transparent, genuine, and be within the legal confines defined under the NLRA. 

As the MLB and MLBPA find themselves at odds the last few years when negotiating the CBA, there still remains an underlying issue at hand. The MLB has faced a decrease in TV viewership over the last few years.[15] Thus, the MLB and MLBPA lockout could have resulted in more loss for both players and the league.[16] Additionally, the contracts between TV networks and the MLB could have been at disaster as well since it brings an enormous amount of revenue to both the league and the TV Networks.[17]  

The concerns over the issues the MLB and MLBPA are facing combined with the decrease in TV viewership makes for an uneasy path moving forward. The league and the union will need to find a way to mend their relationship and bring the fans back to the game. 

[1] Gerry Smith, Baseball Reaches Deal with Players Union, Ending Lockout (1), Bloomberg Law (Mar. 10, 2022),

[2] James Wagner, For M.L.B. and the Union, a Relationship in Need of Repair, N.Y. Times (Mar. 11, 2022).

[3] Id.

[4] Id.

[5] Joseph Zucker, MLB, MLBPA Agree to New CBA; Opening Day Expected to Be April 7, Bleacher Report (Mar. 10, 2022),

[6] Id.

[7] Id.

[8] Ian Kulgreen, Labor Dispute Upends MLB Season: Baseball Lockout Explained (1), Bloomberg Law (Mar. 1, 2022),

[9] See Practical Law Labor & Employment, Lockouts Under the National Labor Relations Act, Westlaw (database updated Mar. 2022).

[10] 29 U.S.C. 158(a)(5).

[11] See Kulgreen, supra note 8. 

[12] 29 U.S.C. § 158(a); 29 U.S.C. § 158(d).

[13] 29 U.S.C. §158(d). 

[14] See Zucker, supra note 5.

[15] See Kulgreen, supra note 8. 

[16]  Id. 

[17] Id.

New Bill Passed by Congress Prohibiting Mandatory Arbitration and Class Action Waivers for Sexual Harrasment and Sexual Assault Claims

By Taylor Brodsky

For years, employers have used mandatory arbitration and class action waivers in the employment of individuals to alleviate liability that the employer may be subjected to.[1]  Arbitration clauses can be an effective means of controlling the risks and costs of litigation.[2] This is particularly true for large businesses, where they may be exposed to a large amount of class action litigation prompted by a single disgruntled customer or employee.[3]  Fortunately for employers, and unfortunately for employees, the United States Supreme Court has shown their support for the use of arbitration clauses, including those that waive class action claims.[4] In 2011, the Supreme Court held that the Federal Arbitration Act (hereinafter “FAA”), preempted a California law that would have invalidated an arbitration clause because it contained a class action waiver.[5]

However, a silver lining has emerged for employees in recent months.[6]  On February 10, 2022, the Senate passed H. 445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (hereinafter the “Act”) by a voice vote.[7] On March 3, 2022, President Biden signed the bill into law, and it took effect immediately.[8]  The Act amends the Federal Arbitration Act to prohibit enforcement of mandatory pre-dispute arbitration agreements, as well as agreements prohibiting participation in a class action.[9] The Act also states that any dispute concerning whether a claim falls within the scope of the Act’s prohibitions must be decided by a court and not an arbitrator.[10]  The act defines “sexual assault dispute” as a, “dispute involving a nonconsensual sexual act or sexual contact…”[11] and, defines “sexual harassment dispute” as a, “dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”[12]  While the Act does help employees avoid signing mandatory arbitration agreements, there are a few caveats.[13] These new restrictions only apply to waivers relating to sexual harassment and sexual assault claims. Therefore any other mandatory arbitration agreements and class action waivers are still allowed in other contexts such as discrimination.[14] Moreover, the new restrictions apply with respect to any dispute or claim that arose on or after the date of the enactment of the Act. Leaving the millions of American workers who have already signed these agreements with no ability to be released from those agreements.[15] Finally, the law only addresses pre-dispute arbitration agreements and class action waiver agreements, so any agreement to arbitrate claims that are entered into by the parties after claims arise also remain enforceable.[16]

Overall, the law will surely continue to develop in this area as attempts to weaken or solidify the enforceability of mandatory arbitration agreements and class action waivers persists. In the meantime, employers should be aware of this new law and should amend the language in their severance agreements regarding arbitration or class actions accordingly, in order to comply with the new law.[17] Employees, on the other hand, should know their rights and should not sign any mandatory waiver agreements relating to sexual harassment or sexual assault claims.[18]

[1] See Arbitration Clauses in Class Action Waivers, Sgr, (last visited March 3, 2020).

[2] Id. 

[3] Id. 

[4] Id. 

[5] AT&T Mobility LLC. v. Conception, 563 U.S. 333 (2011). 

[6] See generally Guy Brenner et al., Congress Passes Bill Prohibiting Mandatory Arbitration and Class Action Waivers for Sexual Harassment and Sexual Assault Claims, Nat. L. R. (Feb. 11, 2022),

[7] Id. 

[8] Id. 

[9] See Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, tit. IX, 136 Stat. 26 (2022). 

[10] Id. 

[11] Id. 

[12] Id. 

[13] See Nat. L. Rev., supra note 6. 

[14] See Id. 

[15] Id. 

[16] Id. 

[17] See generally Id. 

[18] See generally Id. 

Should Peloton’s 2,800 Worker Layoff Trigger the WARN Act?

By Devin W. Burdo,

Two short years ago, the COVID-19 pandemic caused day-to-day living to undergo a massive transformation.  The stay-at-home orders issued in March 2020 upended many of our daily routines and necessitated adaptation.[1]  With gym memberships replaced by at home fitness, one company cornered the market.[2]  

At the start of the pandemic, Peloton offered individuals a free “90-day trial of its subscription workout app, as coronavirus precautions limit[ed] people’s ability to attend classes and gyms.”[3]  Peloton became widely popular overnight.  However, on February 8, 2022, John Foley, Peloton’s Co-Founder and CEO, announced that Peloton would be laying off roughly 2,800 workers.[4]  Foley stated that the layoffs were in response to decisions made during the pandemic that sought “to protect . . . [m]ember experience” that “no longer align[ed] with how [Peloton] intend[s] to operate [its] business going forward.”[5]  Foley notified the North American team that separation conversations would happen February 8.[6]  Such actions raise the question, did these layoff’s violate the Worker Adjustment and Retraining Notification Act (hereinafter “WARN Act”)?

The WARN Act is currently codified as 29 U.S.C. §§ 2101-2109.[7]  The statute seeks to “provide workers with sufficient time to seek other employment or retraining opportunities before closing their jobs.”[8]  An employer that orders a mass layoff or plant closing in violation of the statute is “liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff” and can recover up to 60-days’ worth of backpay and benefits.[9]

Since Peloton employed more than 100 employees, the company meets the statutory definition of “employer.”[10]  However, other conditions must also exist.  Normally, an employer who orders a mass layoff or plant closing must provide affected employees with at least 60-days’ notice of such an event.[11]  There are exceptions that reduce, or eliminate, the notice requirement, but none apply here.[12]  Other events that give rise to liability occur when an employer orders a: (1) plant closing that results in at least 50 full-time employees getting laid off; (2) layoff at a single worksite resulting in 50 to 499 full-time employees, that comprise one-third of the workforce, getting laid off; or (3) a layoff at a single worksite resulting in 500 or more employees getting laid off.[13]  

Based on the information available, Peloton’s layoffs did not violate the WARN Act.   According to two documents filed with the New York State Department of Labor, the number of affected employees did exceed the 50 employee and one-third of the workforce requirement.[14]  However, the layoffs will take place on May 9, 2022.[15]  Because affected employees were provided with 90-days’ advanced notice of their termination, Peloton’s actions did not violate the WARN Act.

[1] See Sarah Moore, History of COVID-19, News Med. Life Scis., (last updated Sept. 28, 2021); see also Amanda Moreland, Christine Herlihy, Michael A. Tynan et al., Timing of State and Territorial COVID-19 Stay-at-Home Orders and Changes in Population Movement – United States, March 1-May 31, 2020, 69 Morbidity Mortality Wkly. Rep. 1198, 1200 fig.1 (Sept. 4, 2020),

[2] See Jordan Valinsky, Peloton Sales Surge 172% as Pandemic Bolsters Home Fitness Industry, CNN Bus. (Sept. 11, 2020) (“[Peloton] announced its first-ever quarterly profit, which was bolstered by a 172% surge in sales and more than 1 million people subscribing to its streaming classes.”); see also Laura Wood, $16.42 Billion Home Fitness Equipment Market – Global Forecast to 2026 –, Bus. Wire (Feb. 23, 2022),

20220223005853/en/16.42-Billion-Home-Fitness-Equipment-Market—Global-Forecast-to-2026— (“The COVID-19 pandemic has reshaped the landscape of fitness and has led to the at-home fitness industry skyrocketing.”).

[3] Charlie Wood, Peloton is Offering a 90-day Trial of its Subscription Workout App – Just as People Halt Going to the Gym and Classes, Bus. Insider (Mar. 17, 2020)

[4] See Press Release, John Foley, A Message from John Foley, Peloton’s Co-Founder, Executive Chair (Feb. 8, 2022),

[5] Id.

[6] See id.

[7] See 29 U.S.C. §§ 2101-2109.

[8] See Background on WARN, Dep’t of Lab., (last visited Feb. 23, 2022); Ethan Lipsig & Keith R. Fentonmiller, A Warn Act Road Map, 11 Lab. L. 273, 273 (1996); see also 29 U.S.C. § 2102.

[9] 29 U.S.C. § 2104.

[10] See Peloton Interactive: Number of Employees 2018-2021, Macrotrends,

charts/PTON/peloton-interactive/number-of-employees (last visited Feb. 23, 2022); see also 29 U.S.C. § 2101.

[11] See 29 U.S.C. § 2102.

[12] See 29 U.S.C. § 2102(b) (stating that the “faltering company” exception, the “unforeseeable business circumstances” exception, and the “natural disaster” exception are exceptions to the 60-days’ notice requirement of the WARN Act).

[13] See 29 U.S.C. § 2101(a)(3).

[14] See WARN: Peloton Interactive Inc. – Long Island Region, N.Y. State Dep’t of Lab. (Feb. 8, 2022),; WARN: Peloton Interactive Inc. – Mid-Hudson Region, N.Y. State Dep’t of Lab. (Feb. 8, 2022),; see also 29 U.S.C. § 2101(a)(3).

[15] See WARN: Peloton Interactive Inc. – Long Island Region, N.Y. State Dep’t of Lab. (Feb. 8, 2022),; WARN: Peloton Interactive Inc. – Mid-Hudson Region, N.Y. State Dep’t of Lab. (Feb. 8, 2022),

Brewing Up a Venti Retaliation

By Conner Quinn

In December 2021, employees at a Buffalo-area Starbucks voted in favor of unionization.[1]  That landmark vote sparked a nationwide interest in unionizing other Starbucks stores.[2]  It also sparked a series of firings that pro-union observers are calling retaliation.[3]  This is not the first time Starbucks’s actions have riled up activists and pushed the limits of allowable anti-union conduct.[4]  Those actions, however, were prior to any store voting in favor of a union.[5]  Now that one store has succeeded in its union drive and the prospect of unionized stores across the country is gaining momentum, Starbucks has taken stronger, retaliatory action.  On February 21, 2022 – just over two months since the successful Buffalo unionization – Starbucks ostensibly fired one of the union’s leaders, Cassie Fleischer, for getting a second job and reducing her Starbucks availability.[6]  Ironically, Ms. Fleischer was fired on the same day a Washington Post profile on her hit newsstands.[7]  Ms. Fleischer warned that fellow union leaders are facing similar consequences but that she is confident that she will eventually be reinstated.[8]  Her union filed a charge with the National Labor Relations Board (hereinafter “NLRB”) claiming that her firing was “in retaliation for union activity.”[9]

Companies like Starbucks surely must face severe consequences for engaging in such serious and obvious retaliatory conduct, right?  Wrong.  United States labor laws “are so weak [and] punishments so puny they all but encourage companies to fire union supporters[.]”[10]  If the NLRB finds in favor of Ms. Fleischer, they can order Starbucks to pay backpay and reinstate her, along with mandating that Starbucks posts a notice “promising to not violate the law.”[11]  The NLRB “cannot assess penalties.”[12]  

Not being able to penalize companies who violate U.S. labor law is one of the main reasons lawmakers and unions are so eager to get the Protecting the Right to Organize Act (hereinafter “PRO Act”) signed into law.[13]  Under the PRO Act, employers found to commit unfair labor practices will face civil penalties up to $50,000 for each violation.[14]  The PRO Act passed the House of Representatives in March in a bipartisan vote[15] but has merely been introduced and referred to the necessary committee in the Senate.[16]  Union leaders say the PRO Act would “finally begin to level a playing field they say is unfairly tilted toward big business.”[17]  “Big business” is, naturally, strongly opposed to this measure.[18]

While the PRO Act would not completely end retaliation against union activists, a $50,000 price tag would certainly make companies think twice before doing so.  And increased penalties may be the only thing that will stop this from happening.  After all, firing pro-union workers is already illegal yet “employers are charged with violating the law by firing activists, making illegal threats, and engaging in other unlawful conduct in 41.5% of all organizing campaigns.”[19]

PRO Act opponents claim that the Act is the “largest change in American labor and employment law in nearly seventy-five years.”[20]  Proponents of PRO, like Representative Tim Ryan (OH-13), say that is exactly the point.[21]

[1] See Noam Scheiber, Buffalo Starbucks Workers Vote for Union at 1 Store, N.Y. Times (Dec. 9, 2021),

[2] See Aneurin Canham-Clyne, Starbucks union drive tops 100 stores, Arizona ballot count postponed, Restaurant Dive (Feb. 17, 2022), (“Starbucks Workers United’s campaign reached 101 stores in 26 states, meaning about one in every 100 corporate-owned U.S. Starbucks cafes has announced a public union drive”). 

[3] See Paul Blest, Starbucks Fired a Bunch of Pro-Union Workers After They Went on TV, Vice (Feb. 10, 2022),; Noam Scheiber, Starbucks fires Memphis workers involved in unionization efforts, N.Y. Times (Feb. 8, 2022),; Jordan Zakarin, Starbucks Attempting to Force Out Union Leaders at Buffalo Stores, More Perfect Union (Feb. 18, 2022),

[4] See Griffin DeGaetano, A Brewing Union, The Lejer (Dec. 2, 2021), 

[5] See id.

[6] See Khaleda Rahman, Starbucks Fires Worker, Union Leader After She Took Second Job, Newsweek (Feb. 21, 2022),; @SBWorkersUnited, Twitter (Feb. 20, 2022, 9:12 PM),

[7] See id.; Greg Jaffe, A Rhodes scholar barista and the fight to unionize Starbucks, Wash. Post (Feb. 12, 2022), (the profile was originally published to the Wash. Post’s website on Feb. 12 but was not on newsstands in the print edition until Feb. 20, 2022). 

[8] See Khaleda Rahman, Starbucks Is Retaliating Against Union Leaders, Fired Worker Cassie Fleischer Says, Newsweek (Feb. 22, 2022),

[9] See id.

[10] Steven Greenhouse, @greenhousenyt, Twitter (Feb. 21, 2022, 9:53 AM).

[11] See Investigate Charges, Nat’l Lab. Relations Board, (last visited Feb. 23, 2022). 

[12] See id.

[13] See Monique Wilson, Industry, labor groups at odds over financial penalties in spending package, The Hill (Nov. 11, 2021),

[14] See Steven Porzio, et al., House Committee Attempts to Secure “PRO Act” Changes to Labor Law Through Reconciliation Process of Next Federal Budget, Proskauer (Sept. 10, 2021),

[15] See Don Gonyea, House Democrats Pass Bill That Would Protect Worker Organizing Efforts, NPR (Mar. 9, 2021),

[16] Protecting the Right to Organize Act of 2021, S. 420, 117th Cong. (2021).

[17] See Gonyea, supra note 15.

[18] See id.

[19] See Celine McNicholas, et al., Why workers need the Protecting the Right to Organize Act, Econ. Pol’y Inst. (Feb. 9, 2021),   

[20] See Fox Business, PRO Act is most significant ‘change in labor law in nearly 75 years’: Scalia, YouTube, (last visited Feb. 23, 2022). 

[21] The Hill, Tim Ryan TORCHES Republicans in fiery floor speech for focusing on Dr. Seuss, YouTube, (last visited Feb. 23, 2022) (“One of the earlier speakers said this is the most dramatic change in labor law in 80 years and I say thank God”).

Can Labor Unions Save You from Jerks on a Plane?

By Eli A. Weathers

Have you recently been in the airport or on an airplane and witnessed obnoxious behavior from a passenger?  Your answer is likely yes.  In fact, the airline industry claims they began to see “a spike early last year [2021] in violent and disruptive passengers.”[1]  The spike centers around refusal to comply with Covid rules and has led to attempts by some to “interfere with flight crew.”[2] Among 1,300 passengers who received “enforcement actions” from the Federal Aviation Administration (hereinafter F.A.A.) between February and May 2021, four passengers alone accrued “$70,000 in civil fines for clashing with airline crews over mask requirements.”[3]  And this month, an American Airlines flight had to make an emergency landing after a passenger was subdued attempting to open an exterior plane door and enter the cockpit.[4]  The F.A.A. noted that there was a “disturbing increase” in incidents “with the easing of pandemic restrictions.”[5] Cohabitating 

While the F.A.A. and you and I can see something awful is happening, what can we do about it? Enter, “a coalition of labor unions representing…airline industry workers,” who urged U.S. Attorney General Merrick Garland to “prioritize prosecutions” of assaulting passengers.[6] The six labor unions which signed the letter asserted that “the [justice] department has not meaningfully pursued federal penalties against individuals who assault or interfere” with employees.[7]

Prior to the letter, since November 2021, the Justice Department has acknowledged the uptick in “federal crimes on commercial aircraft.”[8] So far in 2022, according to F.A.A statistics, there has already been 499 “Unruly Passenger Reports,” with 324 noted as “Mask-Related Incidents.”[9] The labor unions highlighted these statistics in their letter, and also pointed to a specific case in Charlotte where “an intoxicated passenger physically and verbally assaulted gate agents.”[10]  The letter highlighted that “[o]ver the past few months” airline workers “experienced serious incidents” of assault and harassment.[11]

Another group, airline executives, have joined labor unions in pressing for stricter punishment of unruly passengers including adding them “to a federal no-fly list.”[12]  In their own letter to Attorney General Garland, Delta’s CEO argued the no-fly list remedy was a “much-need step” in combating the surge in disruptive passengers.[13] These efforts are opposed by Republican senators who view a no-fly list as a “severe restriction on the ability of citizens to fully exercise their constitutional right to engage in interstate transportation.”[14]  The Union leaders have condemned the senators’ obstruction and reemphasized that “disruptive passengers remain a threat to flight attendants and [other] passengers.”[15]  All sides can see, disruptive passengers have “put everyone at risk.”[16]

With so much opposition to preventable measures, can we expect relief from the guy screaming in seat 26E any time soon? Well, the good news for those of us who can comport ourselves in public and wish to see these unruly passengers restricted and airline workers safe, the unions continue to fight.  In response, the President of the Association of Flight Attendants-C.W.A., one of the six unions who signed the letter, remains undeterred as she states, “we’ve been punched, kicked, spit on and sexually assaulted…which is never acceptable.”[17]

[1] Madeleine Ngo, Labor Groups Urge Justice Dept. to Ramp up Prosecutions of Unruly Passengers, N.Y. Times (Feb. 17, 2022)  

[2] Id.

[3] Neil Vigdor, Cases of Unruly Airline Passengers Are Soaring, and so are Federal Fines, N.Y. Times (May 10, 2021)

[4] Christine Chung, Flight Makes Emergency Landing After Passenger Tries to Enter Cockpit, N.Y. Times (Feb. 13, 2022) 

[5] Vigdor, supra note 3. 

[6] Ngo, supra note 1.

[7] Id.

[8] Id.

[9] Unruly Passenger Statistics as of February 15, 2022, FAA, (last visited Feb. 19, 2022).

[10] Ngo, supra note 1.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

Who in Their Right Mind Wants to Get Paid in Digital Currency?

By Mayank Dahiya

As Bitcoin and other digital currencies have stormed Wall Street with an air of excitement and uncertainty, more and more celebrities and athletes are choosing to be paid in this new digital form.[1]  When the crypto markets boomed/surged in 2021, and Bitcoin soared and touched $3 trillion, commitments were made by certain athletes who agreed to be paid in digital currencies.[2]  Odell Beckham Jr., a National Football League player who signed with the Los Angeles Rams midseason,[3] was among the first to receive his salary in Bitcoin.[4]  This feat was soon followed by other athletes, including Klay Thomson and Andre Iguodala of the Golden State Warriors, a National Basketball Association team.[5]  This trend, however, is not unique to athletes; New York City Mayor Eric Adams pledged to receive his first three paychecks in digital currencies as well.[6]

It is worthwhile to note that the Fair Labor Standards Act (hereinafter “FLSA”) only permits the payment of base wages, like salary or the minimum wage, in currencies that have been issued by the government.[7]  These currencies are called fiat currencies and include cash and bank issued checks.[8]  Incidentally, since cryptocurrency is not issued by the government, it can only be used for the payment of bonuses and not salaries.[9]  For example, Mayor Adams will not be paid directly in digital currency; “he has arranged to use Coinbase…to convert his paycheck…into Bitcoin and Ethereum.”[10]

Although celebrities and athletes have shown trailblazing efforts in receiving payments in digital currencies, these currencies are not unflawed and comes with risks of their own. Due to the novel and ambiguous nature, the majority of people do not understand what digital currencies are and how they operate.[11]  Without the appropriate knowledge and expertise, employees wanting to get paid in digital currencies may not fully comprehend the volatility and the risks that are attached to the trend.[12]  High volatility and drastic plunging are two of the many risks associated with the digital market and the payment of these digital currencies.[13]  In addition to the volatility, there are added considerations, such as whether the digital currency is or may be deemed a security by the Securities and Exchange Commission.[14]  And given the plethora of digital currencies available in the market, it is also important to note whether the “recipients are accredited investors.”[15]  Furthermore, it is crucial to understand the tax ramifications of getting paid in digital currency, along with brokerage fees and the “charges in value between the dates the compensation in earned, paid, and liquidated”[16]  

The negative consequences of using digital currencies further extend to various areas like lack of market regulation, the enormous amount of power needed to mine to currencies which leads to negative environmental externalities, and the overall anonymity of the transactions.[17]  Perhaps it is the last consequence of using digital currencies that is most troublesome; more than a quarter of Bitcoin users are involved in illegal activity,[18] and in the digital age where crime is shifting to the sophisticated cyberspaces, adding the ingredient of anonymity contributes to the rise in cybercrimes.[19]  Even though law enforcement is able to track the culprits at times,[20] the ever growing sophistication and the development of digital currencies make it harder for cybercriminals to be tracked. 

            “Much of the murkiness of the legal standing of cryptocurrency is due to its newness relative to more traditional currency and payment systems.”[21]  This has led to a vast range of views on getting paid a salary in digital currency; however, much is to be determined and decided in the coming future.

[1] See generally, Matthew Fox, Odell Beckham Jr. is leading a new class of athletes getting paid in bitcoin. Here’s are 7 high-profile athletes taking the high-upside risk of crypto pay, Markets Insider (Jan. 31, 2022, 10:18 AM),

[2] Id. 

[3] Bryan DeArdo, Odell Beckham Jr. signs one-year deal worth up to $4.25 million with Rams, WR also considered Packers, CBSSports (Nov. 12, 2021, 8:53 AM),

[4] Fox, supra note 1. 

[5] Phill Rosen, Two NBA All-Stars to accept salary in bitcoin in partnership with Jack Dorsey’s Cash App, MARKETS INSIDER (Jan. 11, 2022, 3:31 PM),

[6] Dana Rubinstein et al., Eric Adams, a Bitcoin Booster, Is Taking First Paycheck in Crypto, N.Y. Times (Jan. 20, 2022),

[7] Allen Smith, Restrict Payment in Cryptocurrency to Bonuses, SHRM (Aug. 26, 2021),

[8] Id.

[9] Id.

[10] Rubinstein et al., supra note 6 at 1.

[11] Nicolas Vega, More than 1 in 3 cryptocurrency investors know little to nothing about it, survey finds, CNBC (Mar. 4, 2021, 9:30 AM),

[12] Smith, supra note 7.

[13] Misyrlena Egkolfopoulou and Claire BallentineBitcoin’s Latest Plunge Highlights the Dangers of a Crypto Salary, Bloomberg (Dec. 7, 2021, 8:15 AM),

[14] Smith, supra note 7.

[15] Id.

[16] Id.

[17] Sambhav Kumar, The dark side of Bitcoin/Cryptocurrency, MANTRA LABS (Mar. 30, 2020),

[18] Sean Foley et al., Sex, Drugs, and Bitcoin: How Much Illegal Activity Is Financed through Cryptocurrencies?, 32 The Rev. of Fin. Stud. 1798 (Apr. 4, 2019).

[19] Felix Richter, Crypto Ransom Payments Skyrocketed in 2020, Statista (July 6, 2021),

[20] Department of Justice Seizes $2.3 Million in Cryptocurrency Paid to the Ransomware Extortionists Darkside, U.S. Dep’t of Just. (June 7, 2021),

[21] Nathan Feiff, What Are the Legal Risks to Cryptocurrency Investors?, Investopedia (Jan. 28, 2022),

Bid to Stop the Block on Federal Workers Vaccine Mandate Denied

By Natalie Yousfan

In September of 2021, President Biden issued an Executive Order on requiring a COVID-19 vaccination for Federal Employees due to the high rapid rise in cases and hospitalizations from the Delta variant of the virus.[1]  President Biden determined that the best way to ensure the health and safety of the workforce was to require the COVID-19 vaccine for all Federal employees.[2]  

Federal workers challenged the vaccine mandate in federal court, and in January 2021, Texas Judge Jeffery Brown, issued a nationwide injunction that barred the federal government from enforcing Biden’s requirement that federal workers without qualifying exemptions be vaccinated.[3]  Biden required more than 3.5 million federal workers to get vaccinated, and they did not have the option to get regularly tested instead (unless they were approved for a medical or religious exemption).[4]  Those that were not in compliance with the mandate could be terminated by the executive order signed by the President.[5]  The Justice Department appealed the Federal Judge’s initial injunction against the executive order.[6]

Judge Jeffery Brown explained that the executive order poses a threat of substantial harm to the liberty interests of the federal employees because they are left with a choice to either violate the mandate or consent to a medical procedure that they don’t want and cannot be undone.[7]  The court did state that the government does have an undeniable public health interest in preventing the spread of the virus, but they claimed that the government did not adequately show that blocking the mandate would have a serious detrimental effect on this goal.[8]  Due to the fact that an overwhelming amount of government workers are already vaccinated, means that there are less restrictive ways to further the governments public health interest.[9]  In the brief order, Brown held that the issue wasn’t about whether people should get the vaccine, but about whether they should be forced to get the vaccine as a condition of their employment.[10]  The enforcement of Biden’s mandate was blocked by the court after they found that the president does not have the authority to issue an order this broad.[11]

The request made by the Federal Government to halt the order, pending appeal, that blocked the mandate was denied by Judge Brown.[12]  Brown wrote that the federal government, “in its motion seeking the stay, sought to ‘essentially relitigate the issues the court already addressed in its original memorandum.’”[13]  The law seems to be leaning in the direction of the federal workers due to the fact that there are other options for limiting the spread of the virus without compromising the liberties of the workers that have made the personal choice not to get vaccinated, but we will see where the decision goes on appeal. 

[1] See Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, The White House (Sept. 9, 2021),

[2] Id.

[3] See Texas Judge Blocks Biden’s Federal Worker Vaccine Mandate, CBS News (Jan. 21, 2022, 1:30 PM),

[4] Id.

[5] Id.

[6] Kathleen Dailey, Biden’s Shot Mandate for Federal Workers Blocked Nationwide, Bloomberg Law (Jan, 21, 2022, 1:21 PM),

[7] See id.

[8] See id. 

[9] See id. 

[10] See Michelle Casady, Feds’ Bid to Pause Block on Workers’ Vax Mandate Denied, Law360 (Feb. 11, 2022, 7:06 PM EST),

[11] Id.

[12] Id.

[13] Id.

Biden and Project Labor Agreements: Past, Present, and Future

By Griffin DeGaetano

On February 4th, 2022, President Biden enacted Executive Order 14063: Use of Project Labor Agreements for Federal Construction Projects.[1] An order which requires federal agencies to use project labor agreements when organizing and undertaking federal construction projects.[2] Project Labor Agreements (hereinafter “PLAs”) are a type of collective bargaining agreement made prior to the start of work between labor organizers and employers that seek to establish the terms and conditions of employment for a specific construction project.[3] PLAs are authorized under the National Labor Relations Act (hereinafter “NLRA”) as an exemption to what otherwise would be considered an unfair labor practice.[4]

However, despite their widespread support amongst those with union sentiment, the usage of PLAs has up until recently been a contested issue in the politics of American labor. A series of executive order “one-upmanship” having occurred between President George W. Bush and President Obama that saw the power of PLAs in federal government construction wane and wax on mostly partisan grounds.[5]

The fight itself is not inconsequential on the economic side either as the world of federal government construction is a massive with the government having spent $262 billion and employing over 200,000 workers during the 2021 fiscal year alone.[6]This order appears to be an attempt by the President to shift the balance of federal government construction ever more into the favor of union-backed firms than his predecessors.  Biden’s order replaces an almost identical executive order issued under President Obama, the previously mentioned: Use of Project Labor Agreements for Federal Construction Projects which instead of requiring the usage of PLAs instead only encouraged their usage by executive agencies but not mandating their usage out right.[7]

Biden’s support of PLA’s makes sense as historically the President has been a strong supporter of Public Labor Agreements, for example when he was then Vice-President Biden, he appointed Jared Bernstein as his Chief Economic Adviser who was a strong defender of PLAs.[8]  Bernstein and by extension Biden’s support of PLA’s could been seen in 2010 when Bernstein wrote in defense of Executive Order 13502 stating that:

The use of a Project Labor Agreement can provide structure and stability to large construction projects. PLAs also help ensure compliance with laws and regulations governing workplace safety and health, equal employment opportunity and labor and employment standards. The coordination achieved through PLAs can significantly enhance the economy and efficiency of Federal Construction projects.[9]

It is this same lack of structure and stability that Bernstein acknowledge that has seemingly prompted Biden’s enactment of Executive Order 14063.[10] The President justifying the enactment of the order due to what he describes as lack of coordination between workers and employers on these large-scale government projects.[11]

The strengthening of PLAs through Executive Order 14063 ultimately appears to be in line with Biden’s earlier promises to be the most “pro-union President.”[12]  However, it remains to be seen if such measures will be enough of a lifeline to America’s struggling unions who despite a year of prominent collective action have reported yet another year of record low union membership.[13]

[1] Exec. Order No.14063 87 Fed. Reg. 7363 (Feb. 9, 2022).

[2] Id.

[3] Id.

[4] 29 U.S.C. § 158(f).

[5]Compare Exec. Order. No.13202 66 Fed. Reg. 11225 (Feb. 22nd, 2001) (prohibiting the usage of PLAs in federal government construction) withExec. Order 13502, 74 Fe. Reg. (Feb. 6th, 2022) (encouraging the usage of PLAS in federal government construction).

[6] Bruce Buckley, Biden Mandates Project Labor Agreements on Large Federal Projects, Eng’g News Rep. (Feb. 4th, 2022),

[7] Exec. Order 13502, 74 Fe. Reg. (Feb. 6th, 2022).

[8] See Jared Bernstein, Project Labor Agreements: A Better Deal for All, The White House: President Barack Obama (April 12, 2010, 4:16 PM),

[9] Id.

[10]  See Exec. Order No.14063, supra note 1.

[11] Id.

[12] Ahiza García-Hodges, Biden’s vow to be ‘most pro-union president’ tested in first year, NBC (Jan. 20th, 2021, 6:15 PM),

[13] Stephan Bisaha, Unions have enthusiasm, media spotlight. But membership numbers lag, NPR (Jan. 28th, 2022, 6:56 AM)

Pulling the Curtain Back on Compensation: The New NYC Pay Transparency Requirement

By Caroline Frisoni

Planning on looking for a job in Manhattan any time soon? In just a few months, you will be able to see the salary ranges for open positions on New York City job postings.[1]  Effective May 15, 2022, certain employers will be required by New York City to post salary ranges in connection with advertising for open positions.[2]  Enacted on January 15, 2022, the new law amends the New York City Human Rights Law by adding a new subdivision that makes it an unlawful discriminatory practice for an employer to advertise a job, promotion, or transfer opportunity without stating the minimum and maximum salary for such position in the advertisement.[3]  It does not however specify if any additional disclosure would be necessary for a non-salary form of compensation such as a bonus.[4]  Certain employers will not be covered — this requirement pertains only to employers in New York City with four or more employees.[5]  Also not included are advertisements for temporary employment by staffing firms.[6]  Independent contractors associated with furthering an employer’s business will be considered to be in the employ of that employer when determining if this requirement applies.[7]  The law also makes a point to also include family members when making the determination if the family member is in fact employed by the employer.[8]  In determining the maximum and minimum salary to present, covered employers may extend the salary range by what they believe in good faith to be the lowest and highest salary that they would pay for the advertised position at the time of the posting.[9]  Employers that don’t comply could be fined or potentially faced with other civil penalties.[10]  The New York City Commission on Human Rights has said it plans to help both businesses and employees better understand this new provision at the outset.[11]

This measure taken by the city is aimed at addressing gender pay gaps and providing for more transparency on pay.[12]  Transparency has been a policy urged by advocates for women’s rights as a tool to help close the gender-pay gap, which is even wider for women of color.[13]  In addition to the advancement of overall pay equity, pay transparency may also help in easing the labor shortage.[14]  The new rule will give job seekers the opportunity to make an informed decision about whether or not to pursue a position up front before going through with interviews and engaging in the guesswork that usually comes along with looking for a job.[15]  Aside from providing insight to those in pursuit of a new job, existing employees will also gain insight through having the ability to compare their current pay with the disclosed ranges in open roles.[16]  The transparency will also allow for companies to have better insight into the salary landscape and structures of their competitors.[17]  The change will come with some significant consequences for employers, including the loss of some of their leverage in negotiations where the compensation was a blank slate.[18]  It was reported to the Wall Street Journal that some business groups have expressed opposition to the new law.[19]  

The New York City rule is the latest development in what seems to be becoming a nationwide trend.  Other states, including California, Connecticut, Nevada, Maryland, Rhode Island, and Washington have enacted similar laws that call for more transparency by requiring certain disclosures in response to employee requests.[20]  Currently, other states are considering similar bills.[21]  Colorado’s law is the most similar to New York City’s in its requiring of salary disclosures in job advertisements.[22]  

[1] See Chip Cutter, You’ll Soon Get to See Pay on NYC Job Postings, Wall St. J. (Jan. 28, 2022, 3:24 PM)

[2] See Paul King Jr., NYC Joins Other Jurisdictions in Requiring Pay Transparency for Job Applicants, The Nat’l Law Rev. (Jan. 31, 2022),

[3] See N.Y.C., N.Y., Administrative Code tit. 8, ch. 1, § 8-107(32)(a) (2022) (amended 2022) (effective May 15, 2022) (click “text”) (; King, supra note 2.

[4] Jack Blum, New York City to Require Disclosure of Salary Range in Job Advertisements, The Nat’l Law Rev. (Jan. 31, 2022),

[5] See King, supra note 2.

[6] See N.Y.C., N.Y., Administrative Code tit. 8, ch. 1, § 8-107(32)(b) (2022) (amended 2022) (effective May 15, 2022) (click “text”) (; King, supra note 2.

[7] See N.Y.C., N.Y., Administrative Code tit. 8, ch. 1, § 8-102 (2022) (amended 2022) (effective May 15, 2022) (click “text”) (;

[8] See id. 

[9] See id. § 8-107(32)(a).

[10] See Cutter, supra note 1.

[11] See id.

[12] See id.

[13] See Samantha Cooney, Should You Share Your Salary With Co-Workers? Here’s What Experts Say, Time (Aug. 14, 2018),

[14] See Sam Tabahriti, A pay transparency law that will force many NYC companies to share salary ranges in job ads is drawing criticism from some business groups, Bus. Insider (Jan. 30, 2022, 11:16 AM),

[15] See Jack Kelly, A Big Win For Workers: New York City Will Make It Mandatory For Companies To Disclose Salaries On Job Advertisements, Forbes (Jan. 6, 2022, 8:01AM),

[16] See Cutter, supra note 1.

[17] See id.

[18] See King, supra note 2.

[19] See Cutter, supra note 1.

[20] See Blum, supra note 4; see id.

[21] See Blum, supra note 4.

[22] See id.