Employers, Mandatory Arbitration, and Collective Action

By: Allison Castel

 

The National Labor Relations Act (“NLRA”) of 1935 was enacted to protect employees from the unequal bargaining power of businesses, and employers by providing safe-guards that preserve the worker’s right to negotiate and bargain, including collectively.[1] Issues tend to arise when employers ask employees to waive their right to adjudicate claims in a court of law, mandating private arbitration to handle disputes.[2] While mandatory arbitration agreements are allowed under the Federal Arbitration Act (“FAA”) of 1925, the National Labor Relations Board (“NLRB”) is tasked with enforcing the rights provided by the NLRA, and must ensure that these arbitration agreements are not a violation.[3]

Last week, the Supreme Court outlined three cases showing the conflict between the FAA and the NLRA.[4] The employers had workers sign an arbitration agreement forcing them to resolve claims individually through arbitration, and prohibiting collective action.[5] These mandatory arbitration clauses, which limit the rights of workers and consumers to when and how they can bring an action against a company, are becoming increasingly popular.[6] The large disparity in bargaining power, between an employer and employee, makes this prohibition on collective action a problem.[7] Specifically, how can employees with similar claims bring an action against their employer if they are both mandated to arbitrate individually?[8] Currently, fifty six percent of non-union private sector employees are bound to the mandatory individual arbitration clauses.[9] This decision by the Supreme Court could affect some twenty five million employment contracts in the United States.[10] While a ruling in favor of employees would greatly protect collective bargaining rights,[11] Justice Gorsuch has the deciding vote, and will likely uphold these arbitration clauses[12] in favor of employers.[13]

 

[1] 29 U.S.C. § 151.

[2] David Noll, With Arbitration Case, SCOTUS Can Protect Both Federal law, Workers’ rights, The Hill (Oct. 7, 2017), http://thehill.com/opinion/judiciary/354386-with-arbitration-case-scotus-can-protect-both-federal-law-workers-rights (“For many corporations, the opportunity to lower the cost of litigation while denying plaintiffs access to class action proved irresistible.”).

[3] Id.

[4] Amy Howe, Argument analysis: An epic day for employers in arbitration case?, SCOTUSblog (Oct. 2, 2017), http://www.scotusblog.com/2017/10/argument-analysis-epic-day-employers-arbitration-case/.

[5] Id.

[6] Yuki Noguchi, No Class Action: Supreme Court Weighs Whether Workers Must Face Arbitrations Alone, NPR (Oct. 6, 2017), http://www.npr.org/2017/10/06/555862822/no-class-action-supreme-court-weighs-whether-workers-must-face-arbitrations-alon (“Many employers are increasingly requiring workers to sign agreements requiring them to resolve workplace disputes about anything from harassment to discrimination to wage theft through individual arbitration. In other words, the language does not permit them to join forces with colleagues who might have similar complaints.”).

[7] Amy Howe, Argument analysis: An epic day for employers in arbitration case?, SCOTUSblog (Oct. 2, 2017), http://www.scotusblog.com/2017/10/argument-analysis-epic-day-employers-arbitration-case/ (“Justice Ruth Bader Ginsburg suggested that the ‘driving force’ of the NLRA was to correct the imbalance between employers and employees, including by protecting concerted activity.”).

[8] Id. (“[Justice Ginsburg] noted that in one of the cases before the court, the individual employee’s claim was for $1800, which would be outweighed by the costs of an individual arbitration. ‘This is truly a case,’ Ginsburg told Wall, in which there is strength in numbers – the ‘core idea’ of the NLRA.”).

[9]Nina Totenberg, A ‘Yellow Dog Contract’ And Other Jabs During Supreme Court Opening Arguments, NPR (Oct. 2, 2017), http://www.npr.org/2017/10/02/555203655/a-yellow-dog-contract-and-other-jabs-during-supreme-court-opening-arguments (“A study by the left-leaning Economic Policy Institute shows that [fifty six] percent of nonunion private-sector employees are currently subject to mandatory individual arbitration procedures under the 1925 Federal Arbitration Act, which allows employers to bar collective legal actions by employees.”.)

[10] Robert Barnes, Supreme Court begins new term with case on whether workers can be forced into individual arbitration, The Wash. Post (Oct. 2, 2017), https://www.washingtonpost.com/politics/courts_law/supreme-court-begins-new-term-with-case-on-workers-right-to-individual-arbitration/2017/10/02/3a4db3da-a79f-11e7-92d1-58c702d2d975_story.html?utm_term=.fdc74f268a4e (“A lawyer for the workers told the court that an estimated [twenty five] million employees have signed contracts that the companies say rule out collective action on workplace issues and are authorized under the Federal Arbitration Act. That would, for example, keep those workers from pursuing class-action lawsuits in federal court.”).

[11] Id. (“‘To proceed alone in the arbitral forum will cost much more than any potential recovery for one,’ Ginsburg said. ‘That’s why this is truly a situation where there is strength in numbers, and that was the core idea of the NLRA. . . . We have to protect the individual worker from being in a situation where he can’t protect his rights.’”).

[12] Robert Barnes, Supreme Court begins new term with case on whether workers can be forced into individual arbitration, The Wash. post (Oct. 2, 2017), https://www.washingtonpost.com/politics/courts_law/supreme-court-begins-new-term-with-case-on-workers-right-to-individual-arbitration/2017/10/02/3a4db3da-a79f-11e7-92d1-58c702d2d975_story.html?utm_term=.fdc74f268a4e (“The advocacy in the case was changed by the political turnover in Washington. The National Labor Relations Board, an independent government agency, agreed with the workers. So did the Justice Department — until the election. Then the Trump administration filed a brief siding with the companies.”).

[13] Amy Howe, Argument analysis: An epic day for employers in arbitration case?, SCOTUSblog (Oct. 2, 2017), http://www.scotusblog.com/2017/10/argument-analysis-epic-day-employers-arbitration-case/ (“[W]hile on the court of appeals Gorsuch generally interpreted arbitration clauses ‘in light of the overriding presumption in favor of arbitration.’”).

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The Trump Administration rolls back Obamacare’s birth control mandate

By: George Riter

 

In a recent move by the Trump Administration, employers will now be allowed to withhold birth control coverage from female employees based on religious or moral grounds.[1] The new rules by the US Department of Health and Human Services allow nonprofits, private firms, and publicly traded companies to no longer offer free contraceptives through company provided health insurance plans.[2] The specific language of the new regulation states that companies who “sincerely [hold] religious or moral objection[s],” to contraceptives will not be mandated to provide free contraceptives.[3]

Much of the concern regarding the new rules and regulations surrounds what a “moral objection” would encompass.[4] Many pro-Obamacare groups fear that the ambiguous language will allow employers to discriminate against woman and provide employers with a loop-hole from paying for contraceptives.[5] This new regulation heels the 2014 Hobby Lobby Supreme Court case, which held that “closely held private companies could seek an exemption on religious grounds.”[6] Only a few dozen employers sent requests to the Obama administration to take advantage of that ruling.[7]

Under the old Obamacare contraceptive mandate, fifty five million women had access to birth control with no co-pay.[8] It is estimated that in 2013, the old regulation saved woman $1.4 billion on birth control pills.[9] The old regulation also decreased the number of woman who had to pay out-of-pocket costs for contraceptives from twenty one percent to three percent.[10] It is predicted that under the new rules and regulations, hundreds of thousands of woman could lose their benefits, which would result in woman having to pay for their own contraceptives.[11]

This regulation will roll back part of the Affordable Care Act mandate, which provided birth control for woman at no out-of-pocket cost to them.[12] The old rule mandated that employers had to provide one of the eighteen different federal drug administration (“FDA”) approved birth control methods to female employees.[13] Additionally, the only employers exempt from the Obamacare mandate were religious employers (house of worship), those with grandfathered health plans (ones purchased before March 23, 2010), and short-term health insurance.[14]

Similar to the legal battles Obamacare faced when it was first unveiled, multiple groups, such as the American Civil Liberties Union, have already filed lawsuits against the Trump administration regarding the new rules.[15] While it is unclear how many organizations will drop birth control coverage from their insurance plans, it already looks as though the Trump administration will have to defend its decision, and that this new regulation will eventually find its way into the courts for final approval.

 

[1] Michael Nedelman, Tami Luhby, MJ Lee & Laura Jarrett, Trump Administration Deals Major Blow to Obamacare birth control mandate, CNN (Oct. 6, 2017),

http://www.cnn.com/2017/10/06/health/trump-birth-control-mandate/index.html.

[2] Id.

[3] Id.

[4] Aric Jenkins, The Trump Administration Just Rolled Back The Birth Control Mandate. Here’s What It Means., Time (Oct. 6, 2017), http://time.com/4972312/obamacare-birth-control-mandate-donald-trump/.

[5] Hardball with Chris Mathews (MSNBC SiriusXM radio broadcast Oct. 6, 2017).

[6] Brianna Ehley, Trump Rolls Back Obamacare Birth Control Mandate, Politico (Oct. 6, 2017), http://www.politico.com/story/2017/10/06/trump-rolls-back-obamacares-contraception-rule-243537.

[7] Id.

[8] Robert Pear, Rebecca Ruiz & Laurie Goodstein, Trump Administration Rolls Back Birth Control Mandate, N.Y. Times (Oct. 6, 2017), https://www.nytimes.com/2017/10/06/us/politics/trump-contraception-birth-control.html.

[9] Brianna Ehley, Trump Rolls Back Obamacare Birth Control Mandate, Politico, (Oct. 6, 2017), http://www.politico.com/story/2017/10/06/trump-rolls-back-obamacares-contraception-rule-243537.

[10] Id.

[11] Id.

[12] Sam Petulla, 3 Ways Obamacare Changed Birth Control, CNN Politics, (Oct. 7, 2017), http://www.cnn.com/2017/10/07/politics/obamacare-changed-birth-control-contraceptives/index.html.

[13] Brianna Ehley, Trump Rolls Back Obamacare Birth Control Mandate, Politico (Oct. 6, 2017), http://www.politico.com/story/2017/10/06/trump-rolls-back-obamacares-contraception-rule-243537.

[14] Id.

[15] Id.

The Role of Collective Bargaining in a Changing Energy Structure

By: Connor Herdic

 The vast majority of scientists believe that climate change is real and is primarily caused by anthropogenic emissions of greenhouse gases throughout the last century.[1] In fact, “each of the last three decades has been increasingly warmer at the Earth’s surface than any preceding decade since 1850,” while the period from 1983 to 2012 was likely the warmest thirty-year period over the last 1400 years.[2] Despite this sobering reality, there is a path forward to save our planet without compromising our economic and social interests.[3] This plan, developed by various international organizations and trade unions, will require intense collaboration between environmentalists, industry groups, and all levels of government.[4] In May 2017, a bill was proposed in the U.S. Senate, calling, in part, for transitional efforts to sustainable development by advocating for improved collective bargaining efforts in the workplace.[5]

In 2015, the International Labor Organization (“ILO”) published guidelines calling for a “just transition” to sustainable development.[6] In these Guidelines, the ILO emphasizes that any transition to sustainable development will have significant impacts on employment in many of the largest industries.[7] The ILO stresses that collaboration between labor unions, governments, and the environmental industry is essential to ensure that these workers are not forgotten.[8] Part of the solution will require improvements in the collective bargaining process to improve transparency, and incentivize social dialogue between employers and employees regarding issues such as job training, safety, and displacement.[9] Improved communication is paramount to achieving sustainable development. These Guidelines have provided all nations with a framework to address the inevitable impacts of transitioning to clean energy.[10] In fact, the highly celebrated Paris Agreement, signed by all nations except the United States and Syria,[11] inserted language directly from the ILO guidelines calling for a “just transition” to sustainable development.[12] The United States has yet to put forward its own plan to protect the increasing number of workers being displaced.[13] However, a bill commonly known as the 100 by ‘50 Act, was introduced in the U.S. Senate earlier this year putting forth a plan that runs parallel to the ILO Guidelines.[14]

The 100 by ’50 Act puts forward a plan to end fossil fuel use in the United States by 2050, while also providing relief for workers in industries that will be affected by the change in energy consumption to renewable resources.[15] While this bill received little support from a Republican dominated Congress or the current Administration,[16] it is worthwhile to consider portions of the Bill’s language that present a plan to amend the National Labor Relations Act (“NLRA”) in a way that brings improved transparency to the collective bargaining process.[17] The Bill would amend section 9(c) of the NLRA.[18] Section 9(c) states the process to be followed in securing a union representative for collective bargaining purposes.[19] In effect, Section 9(c) would be modified to permit the formation of a union by a majority vote of employees, instead of requiring a Board orchestrated election.[20]

These collective bargaining amendments are significant because they are the first federal attempt in the United States to help transition workers affected by rapidly changing energy policies.[21] Despite the intense opposition, this bill creates a foundation for concerned environmentalists and unions to come together to find a solution for hard-working Americans who face a challenging future in a rapidly changing world.[22]

 

[1] See generally Rajendra K. Pachauri, Chairman, Synthesis Report of the Intergovernmental Panel on Climate Change: Climate Change 2014 (2015).

[2] Id.

[3] See generally Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All, Int’l Lab. Org. 5 (2015), http://www.ilo.org/wcmsp5/groups/public/—ed_emp/—emp_ent/documents/publication/wcms_432859.pdf; See also Just Transition: Where Are We Now and What’s Next? A Guide to National Policies and International Climate Governance, Int’l Trade Union Confederation (Sept. 19, 2017), https://www.ituc-csi.org/just-transition-where-are-we-now?lang=en.

[4] Id.

[5] 100 by ’50 Act, S. 987, 115th Cong. (2017).

[6] See supra note 3.

[7] Id.

[8] Id.

[9] Sharan Burrow, Gen. Sec’y, ITUC, A Report for the OECD: Just Transition (May 2017).

[10] See Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All, supra note 3; See also Sharan Burrow, Gen. Sec’y, ITUC, A Report for the OECD: Just Transition (May 2017); See also Paris Agreement on the U.N. Framework Convention on Climate Change, 2015, http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf.

[11] Mythili Sampathkumar, Nicaragua to Sign Paris Agreement, leaving America and Syria as the only countries not in it, Indep. (Sept. 21, 2017), http://www.independent.co.uk/news/world/americas/us-politics/paris-agreement-trump-nicaragua-america-us-syria-countries-in-it-a7958341.html.

[12] See Paris Agreement, supra note 9.

[13] See generally 100 by ’50 Act, S. 987, 115th Cong. (2017).

[14] Id.

[15] Id.

[16] Jeff Manning, Merkley Calls for 100 Percent Clean Energy by 2050, Unlikely to Get it, The Oregonian (Apr. 27, 2017), http://www.oregonlive.com/politics/index.ssf/2017/04/merkley_bill_would_end_combust.html.

[17] 100 by ’50 Act, S. 987, 115th Cong. § 273 (2017).

[18] Id.

[19] National Labor Relations Act, 29 U.S.C. § 158.

[20] 100 by ’50 Act, S. 987, 115th Cong. § 273 (2017).

[21] 100 by ’50 Act, S. 987, 115th Cong. (2017).

[22] See generally “Just Transition” – Just What is it?, Lab. Network for Sustainability, http://www.labor4sustainability.org/uncategorized/just-transition-just-what-is-it/ (last visited Oct. 5, 2017).

Can Black Become the New Green?

By: Jennifer Waite

By the end of July 2016, there had been a total of six deaths in the coal mining industry.[1] By July 2017, the number of deaths in the industry was up to ten.[2] In a little over a week, there were three separate accidents leading to worker deaths in 2017.[3] According to the Mine Safety and Health Administration (“MHSA”), “the number of mining fatalities in 2017 [was] already outpacing last year’s count.”[4] In 2016 there was a total of eight deaths,[5] and by the end of September 2017, that number grew to twelve.[6]

This report has come as a surprise since there are far fewer coal miners working in the industry than in previous years.[7] The low rates of employment come from the many regulations and laws enacted by former President Obama; in his efforts to bankrupt coal companies[8] he implemented plans such as the Clean Power Plan,[9] and the Stream Protection Rule.[10] Obama also banned new coal leases on public land and ordered mining companies to pay higher royalties.[11] While both of these regulations were aimed at combating global warming and encouraging newer and safer sources of energy, the impacts were certainly felt by those employed in the mining industry.[12] By the end of 2016, many coal producing companies had declared bankruptcy, and thousands of coal miners had lost their jobs.[13] The number of jobs reached a record low in 2015, of 66,000 jobs total.[14] This number dropped from about 74,000 employees in 2014.[15] As a result of the regulations, the employment statistics continued to decline.[16]

The change in administration at the beginning of the year also led to regulation changes in the mining industry.[17] President Trump’s efforts to end “Obama’s war on coal,” have been met with some success in adding jobs, and two of the largest coal companies, Peabody Energy and Arch Coal, emerged from bankruptcy.[18] The increase in business and employment numbers is largely due to rescinding old policies and enacting new policies.[19] However, while the new polices are bringing jobs back to miners, the regulations are ignoring safety, and are failing to protect those working.[20]

The first major setback in the Trump administration was the failure to appoint someone to lead the MSHA, the administration responsible for enforcing the laws and regulations of mines.[21] Trump recently appointed David Zatezalo, a former coal-mining company executive, to head the MSHA.[22] Zatezalo, however, is known for having multiple violations, fines, and citations during his time as a mining executive, which suggests that he may not be the most qualified candidate.[23] Given Zatezalo’s history, it seems hard to believe that safety regulations and inspections will improve while he leads the MSHA. Additionally, states have been making changes to their own laws regarding mine safety.[24] Specifically, legislators in both Kentucky and West Virginia turned down bills that would have reduced inspections in mines.[25] Still, despite this there seems to be a rise in the number of injuries and fatalities in the industry, and states will have to continue to look at these problems as they arise in order to protect miners.[26]

While employment for miners still looks grim given closures of coal-producing corporations across the country, many new companies are stepping in to train out-of-work miners.[27] The economies of West Virginia and Kentucky have heavily relied on fuel extraction.[28] Despite the rule and regulation changes that resulted from changing administrations, the country is still looking for energy alternatives to coal, and thus, the coal-producing companies remain closed.[29] The towns and their residents are suffering from these effects, as many workers can’t find work and the communities are struggling to even exist.[30] Once, the mining industry promised six-figure salaries and didn’t require a four-year college degree.[31] Now, their certifications and skills do not give former miners much opportunity.[32] But companies such as Solar Holler, Coalfield Development, and Goldwind Americas are providing free training, education, and opportunities in alternative energy to those who used to work with fossil fuels.[33] Since “past jobs in fossil fuels are proving to make good training,” the outlook for the energy industry is looking much more promising, not only for the environment, but also for safety and employment in the energy sector as a whole.[34] Since these jobs are seemingly much safer than mines and the government is failing to protect those who still work in mines, it is reasonable to assume that many will opt for the new alternative energy jobs.

[1]See Stefanie Valentic, MSHA: Coal Mining Deaths Reach Double Digit Numbers in 2017, EHS Today (Aug. 14, 2017), http://www.ehstoday.com/msha/msha-coal-mining-deaths-reach-double-digit-numbers-2017.

[2] Id.

[3] Id.

[4] Id.

[5] Fatalities chargeable to the Coal Mining Industry, U.S. Dep’t of Lab., https://arlweb.msha.gov/stats/charts/coaldaily.php (last visited Oct. 1, 2017).

[6] Id.

[7] See Becca Schimmel, In the Ohio Valley, Miner Deaths Are Increasing Amid Low Coal Employment, WKU (Sept. 4, 2017), http://wkyufm.org/post/ohio-valley-miner-deaths-are-increasing-amid-low-coal-employment#stream/0.

[8]See Sterling Burnett, Trump and the End of Obama’s Bitter ‘War on Coal,’ The Hill (Sept. 30, 2017, 12:00:00 PM), http://thehill.com/opinion/energy-environment/353232-trump-and-the-end-of-obamas-bitter-war-on-coal.

[9]See Lisa Friedman, Trump Wants to Repeal Obama’s Climate Plan. The Next Fight: Its Replacement, N.Y. Times (Sept. 28, 2017), https://www.nytimes.com/2017/09/28/climate/clean-power-plan.html.

[10] Burnett, supra note 8.

[11]See Eric Lipton & Barry Meier, Under Trump, Coal Mining Gets New Life on U.S. Lands, N.Y. Times (Aug. 6, 2017), https://www.nytimes.com/2017/08/06/us/politics/under-trump-coal-mining-gets-new-life-on-us-lands.html?action=click&contentCollection=Energy%20%26%20Environment%20&module=RelatedCoverage&region=Marginalia&pgtype=article.

[12] Burnett, supra note 8.

[13] See Dana Varinsky, Nearly Half of US Coal is Produced by Companies that have Declared Bankruptcy—and Trump Won’t Fix That, Bus. Insider (Dec. 9, 2016, 11:09 AM), http://www.businessinsider.com/us-coal-bankruptcy-trump-2016-12.

[14] Annual Coal Report, U.S. Energy Info. Admin. (Nov. 3, 2016), https://www.eia.gov/coal/annual/ (next report to be released Nov. 2017).

[15] Id.

[16] Id.

[17] Lipton, supra note 11.

[18] Bennett, supra note 8.

[19] Id.

[20] Schimmel, supra note 7.

[21] Id.

[22] Timothy Cama, Dems Probe Mine Safety Record at Trump Nominee’s Company, The Hill (Sept. 26, 2017, 10:34 AM), http://thehill.com/policy/energy-environment/352443-dems-probe-mine-safety-record-at-trump-nominees-company.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Diane Cardwell, What’s Up in Coal Country: Alternative-Energy Jobs, N.Y. Times (Sept. 30, 2017), https://www.nytimes.com/2017/09/30/business/energy-environment/coal-alternative-energy-jobs.html?ribbon-ad-idx=3&rref=business&module=Ribbon&version=context&region=Header&action=click&contentCollection=Business%20Day&pgtype=article.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

NEW YORK CITY PASSES “FREELANCE ISN’T FREE ACT”

By: Adriana Gionis

The Freelance Isn’t Free Act (“The Act”) went into effect in May 2017.[1] Under the Act, an employer who retains a freelancer must reduce a service contract in writing when the value of the service is higher than $800.[2] If the contract does not specify the terms of payment, the freelance worker must be compensated within thirty days of the completion of services.[3] Additionally, “once a freelance worker has commenced performance of the services under the contract, the hiring party shall not require as a condition of timely payment that the freelance worker accept less compensation than the amount of the contracted compensation.”[4] As a further protection, once services are commenced, the Act prohibits a hiring party from requiring freelance workers to receive less money as a condition of being paid in a timely manner.[5]

Freelancers currently represent thirty five percent of the workforce in the United States,[6] and a large portion of the United States economy.[7] However, current labor laws do not adequately protect independent workers.[8] New York is the first city in the United States to implement a law to protect freelancers’ and independent contractors’ right to get paid.[9] There are an estimated 500,000 freelance workers that will benefit from this legislation.[10]

According to a 2016 survey by the Freelancers Union, the largest concerns for freelancers are being paid a fair rate, unpredictable income, and debt;[11] nonpayment is one of the top challenges facing the independent workforce today.[12] “One in every two freelancers had trouble getting paid in 2014, and [seventy one percent] cite trouble collecting payment at some point in their career.”[13] As a result, freelancers “lost an average of $5,968 in unpaid income in 2014, detracting [thirteen percent] of the average respondent’s annual income.”[14] Nonpayment has serious implications for freelancers, who may be forced to dip into savings and incur credit card debt.[15] Moreover, nonpayment effects the economy.[16] “City, state, and federal governments lose not only personal income tax, but also income that would inevitably be produced as these workers purchase more goods and services in their communities and beyond.”[17]

It is evident from these statistics that freelancers have few avenues of recourse when they do not receive compensation for their work. And as a result, repeated phone calls and written requests are often a freelancer’s only option,[18] as further action can be costly and prohibitive.

Importantly, the Act prohibits a hiring party from threatening, intimidating, disciplining, harassing, denying a work opportunity, or discriminating against a freelance worker who exercises his or her rights under the Act.[19]  The new law also created penalties for the violation of a freelancer’s rights, including statutory damages, double damages, injunctive relief and attorney’s fees.[20] Where there is evidence of a pattern or practice of violations, the Corporation Counsel may bring civil action to recover, on behalf of the City, a penalty of not more than $25,000.[21] This bill also requires the Office of Labor Standards to receive complaints, create a navigation program, and to gather data and report on the effectiveness of the law.[22]

[1] Freelancer’s Aren’t Free: Mayor Announces First in Nation Protections for Freelance Workers, NYC (May 15, 2017), http://www1.nyc.gov/office-of-the-mayor/news/307-17/freelancers-aren-t-free-mayor-first-nation-protections-freelance-workers.

[2] N.Y.C. Admin. Code § 20-929 (2017).

[3] Id.

[4] N.Y.C Admin. Cod § 20-929 (b) (2017).

[5] Id.

[6] New Study Finds Freelance Economy Grew to 55 Million Americans This Year , 35% of U.S. Workforce, Upwork, https://www.upwork.com/press/2016/10/06/freelancing-in-america-2016/ (last visited Sept. 25, 2017).

[7] Id. (The freelance workforce earned an estimated one trillion dollars this past year, representing a significant share of the U.S. economy).

[8] 29 U.S.C.A. § 152 (NLRA explicitly excludes individuals with the status of an “independent contractor”).

[9] Freelancer’s Aren’t Free: Mayor Announces First in Nation Protections for Freelance Workers, supra note 1.

[10] Id.

[11]Freelancing In America: 2016, Upwork, 4 https://fu-prod-storage.s3.amazonaws.com/content/None/FreelancinginAmerica2016report.pdf (last visited Sept. 25, 2017).

[12] Id. at 4.

[13] THE COST OF NONPAYMENT, A STUDY OF NONPAYMENT AND LATE PAYMENT IN THE FREELANCE WORKFORCE, Freelancers Union, 2 https://fu-web-storage-prod.s3.amazonaws.com/content/advocacy/uploads/resources/FU_NonpaymentReport_r3.pdf (last visited Sept. 25, 2017).

[14] Id. at 2.

[15] Id. at 4.

[16] Id.

[17] Id.

[18] Id.

[19] N.Y.C. Admin. Code § 20-930 (2017).

[20] Id.

[21] N.Y.C. Admin. Code § 20-934 (2017).

[22] Freelance Isn’t Free Act, NYC, https://www1.nyc.gov/site/dca/about/freelance-isnt-free-act.page (last visited Sept. 25, 2017).

The Final Months of Unpaid Family and Medical Leave in NY State

By: Rachel Trifon

In April of 2016, New York Governor Andrew Cuomo signed New York’s first paid family leave program into law.[1] While employers were given time to implement this new program, employees can start claiming some benefits on January 1, 2018.[2] These benefits include up to twelve weeks of paid time off from work to care for family and medical concerns, such as the birth or adoption of a child, caring for someone with a serious health condition, or helping family matters of someone who is on active military service.[3] The employee is also entitled to continuation of her health insurance and reinstatement of her job upon return.[4] This will be an important change from the current policy, which under the best of circumstances still leaves employees without an income while caring for family members.[5]

The purpose of this legislation is to provide a balance between work life and home life for employees across the state of New York.[6] Governor Andrew Cuomo said, “[t]here is a time in everyone’s lives where being there for a loved one in need is more important than anything and – finally – New Yorkers will no longer have to choose between losing their job and being a decent human being.”[7]

New York’s program is an expansion on the protections offered by the federal program – the Family and Medical Leave Act of 1993 (“FMLA”)[8] – as New York’s eligibility requirements are more lax, and therefore, more people are entitled to benefits.[9] In order to qualify under the FMLA, an employee must “be employed by a covered employee for at least [twelve] months and for at least 1,250 hours of service during the last [twelve] months.”[10] A covered employee is “any person engaged in commerce . . . who employs [fifty] or more employees for each working day during each of [twenty] or more calendar workweeks in the current or preceding calendar year.”[11] New York’s program, on the other hand, covers all employers that employ at least two people, and employees are only required to have been working for twenty six consecutive weeks.[12] This is half the requirement of FMLA.[13]

New York joins three other states that have already passed paid family and medical leave laws.[14] The first state to pass legislation was California in 2002,[15] followed by New Jersey in 2008,[16] and Rhode Island in 2013.[17] States with these paid programs have already seen the benefits, not only for employees, but for employers as well.[18] Paid leave is beneficial, because employees feel their needs are being addressed, and therefore, they are more likely to be loyal to their employers, which reduces worker turnover.[19] There is also increased morale and positivity in the workplace, and employees are likely to increase their work productivity since they are less distracted by personal matters.[20]

New York state is hopeful that the mentioned benefits will be seen in the next few years as the law is phased in.[21] In an effort to gradually apply this new change, in 2018 the total amount of paid leave available will be up to eight weeks, and recipients will only receive fifty percent of their average weekly wages.[22] However, the plan is projected to take full effect by 2021, with the twelve full weeks and sixty seven percent of an employee’s total wages available.[23]

While the complete implementation and the overall success of New York’s paid family and medical leave act remains to be seen, even the partial benefits awarded to New York employees in just a few months, surpass almost every other state.[24] Employees in New York will no longer struggle to choose between their livelihood and their family, and the success of this program will perhaps entice other state legislatures to pass laws protecting employees and their right to take time off.

[1] Emily Peck, New York Just Passed America’s Best Paid Family Leave Law, Huffington Post (Apr. 4, 2016, 3:15PM), http://www.huffingtonpost.com/entry/new-york-paid-family-leave_us_5702ae75e4b0daf53af042b7.

[2] Id.

[3] New York State Paid Family Leave, NY.Gov, https://www.ny.gov/programs/new-york-state-paid-family-leave (last visited Sept. 24, 2017).

[4] Id.

[5] Id.

[6] Press Release, Governor Cuomo Announces Regulations Implementing New York’s Nation-Leading Paid Family Leave Program, N.Y. State (July 19, 2017), http://www.governor.ny.gov/news/governor-cuomo-announces-regulations-implementing-new-yorks-nation-leading-paid-family-leave.

[7] Id.

[8] 29 U.S.C. §§2601- 2654 (2012).

[9] Vin Gurrieri, 4 Things Employers Must Know About NY’S Family Leave Law, LAW 360 (June 22, 2017, 4:23PM), https://www.law360.com/articles/937052/4-things-employers-must-know-about-ny-s-family-leave-law.

[10] 29 U.S.C. § 2611 (2)(a) (2012).

[11] 29 U.S.C. §2611 (4)(a)(i) (2012).

[12] Gurrieri, supra note 9.

[13] Id.

[14] State Paid Family Leave Insurance Laws, Nat’l Partnership for Women & Fam. 1-5 (July 2017), http://www.nationalpartnership.org/research-library/work-family/paid-leave/state-paid-family-leave-laws.pdf.

[15] See Cal. Unemp. Ins. Code §§3300-3306 (2002).

[16] See N.J. Stat. Ann. § 43:21-38 (2008).

[17] See 28 R.I. Gen Laws. §28-41-35 (2013).

[18] Paid Family and Medical Leave: Good For Business, Nat’l Partnership for Women & Fam. (Mar. 2015), http://www.nationalpartnership.org/research-library/work-family/paid-leave/paid-leave-good-for-business.pdf.

[19] Id.

[20] Id.

[21] Francis P. Alvarez Et Al., Final New York Paid Family Leave Regulations Released: what Employers Need to Know, Jackson Lewis Blog (July 20, 2017), https://www.jacksonlewis.com/publication/final-new-york-paid-family-leave-regulations-released-what-employers-need-know.

[22] Id.

[23] Id.

[24] Id.

Say Goodbye to Gender Wage Gaps in New York

By: Grace Cho

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

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

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

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

 

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

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

[3] Id.

[4] Id.

[5] Id.

[6] Id.

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

[8] Id.

[9] Id.

[10] Id.

[11] Id.

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

[13] Id.

[14] Id.

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

[16] Id.

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

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

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

[20] Id.

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

By: Alex Malandra

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

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

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

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

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

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

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

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

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

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

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

[3] Id.

[4] Id.

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

[6] Campbell, supra note 2.

[7] Id.

[8] Campbell, supra note 1.

[9] Meneghello, supra note 5.

[10] Id.

[11] Id.

[12] Id.

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

[14] Meneghello, supra note 5.

[15] Id.

[16] Campbell, supra note 1.

[17] Kucera, supra note 13.

[18] Id.

[19] Id.

DACA Repeal: Not Just Crushing Dreams but Crushing the Workforce      

By: Kristen Acosta

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

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

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

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

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

 

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

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

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

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

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

[6] Stern, supra note 4.

[7] Bier, supra note 3.

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

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

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

[15] Id.

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

[17] Bier, supra note 4.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

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

By: Morgan Gieser

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

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

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

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

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

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

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

[3] Id.

[4] Id.

 

[5] Id.

[6] Healy, supra note 1.

[7] Id.

[8] Id.

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

[10] Id.

[11] Id.

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

[13] Id.

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

[15] Id.

[16] Id.

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

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.