No More Snooping: New York Restrictions on Employer Access to Employees’ and Applicants’ Social Media Accounts

By: Stephanie A. Okine

New York lawmakers have passed a new statute which restricts an employer’s ability to request social media information from their employees and job applicants.[1] It has joined the handful of states that have similar legislation including California, Connecticut, Delaware, Maryland, and New Jersey.[2]

On September 14, 2023, the governor of New York, Kathy Hochul, signed Senate Bill S2518A[3] into law.[4] This law has major implications for employers with respect to their hiring process and generally managing their employees. [5] The Law was enacted in response to the reports of employers requiring social media account information from applicants as part of the hiring process.[6] It was reported that the information collected was used as conditions for hiring, conditions for lateral movement within the company, and in some cases, resulted in termination.[7]

Taking effect on March 12, 2024, Section 201-I makes it unlawful for an employer to request, require or coerce any employee or applicant for employment to: “disclose any username and password, password, or other authentication information for accessing a personal account through an electronic communications device.”[8] It excludes instances where an employee or applicant voluntarily adds their employer or agent of the employer to their personal internet account.[9] The law also makes it unlawful for an employer to discharge, discipline or otherwise threaten to discharge, discipline or penalize an employee for refusing to disclose such information.[10] Neither is it lawful for an employer to fail or refuse to hire an applicant who refuses to disclose information about their personal internet account.[11]

The law contains a number of carveouts that allow employers to access social media accounts under certain conditions.[12] First, an employer  may request or require an employee to disclose access to information to an account provided by the employer, if such account was used for business purposes and the employee was given prior notice.[13] Second, the employer may request access to an electronic communication device which is paid in whole or part by the employer, was conditioned on the employer’s right to access and the employee with prior notice explicitly agreed to such condition. However, an employer cannot access personal accounts on such a device.[14] Third, an employer may access or obtain information on an employee’s account in compliance with a court order.[15] Finally, an employer may restrict  an employee’s access to certain websites while using the employer’s network or devices paid in whole or part by the employer.[16]

The Law does not prevent employers from viewing, accessing or utilizing information about the employees which is made publicly available by the employee without account login information.[17]

The onus now lies on employers to ensure they update their employment manuals, policies, and procedures withing the confines of this new law.[18]

---

[1] See Poulos LoPiccolo, WHAT TO KNOW ABOUT NEW YORK’S UPCOMING SOCIAL MEDIA PRIVACY LAW FOR EMPLOYEES (MARCH 2024), Poulos LoPiccolo PC (Jan. 11, 2024), https://www.pllawfirm.com/2024/01/11/what-to-know-about-new-yorks-upcoming-social-media-privacy-law-for-employees-march-2024/.

[2] See Joshua S. Bauchner & Jed M. Weiss, New NY Statute Restricts Access to Employee Social Media; Imposes Notice Requirements, N.Y. L. J. (Feb. 23, 2024), https://www.law.com/newyorklawjournal/2024/02/23/new-ny-statute-restricts-access-to-employee-social-media-imposes-notice-requirements/.

[3] See Senate Bill S2518A (N.Y. 2023).

[4] See Bauchner et al., supra note 2.

[5] See id.

[6] See id.

[7] See id.

[8] See Senate Bill S2518A (N.Y. 2023).

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See Senate Bill S2518A (N.Y. 2023).

[15] See id.

[16] See id.

[17] See id.

[18] See Bauchner et al., supra note 2.

A Peek Behind the Curtain: New Pay Transparency Laws Give More Power to Employees

By Robert M. Calvin

An emerging labor trend in the United States is to require pay transparency during the job application and promotion process.[1]  The States enacting these laws aim to narrow the gender and racial wage gaps as well as empower job applicants during the hiring process.[2]  Pay transparency is salient because it helps deter discrimination, unfair promotion practices, and helps bring management “closer to the people” with uniformity in pay practices.[3]  Some of the leading States in this matter are California and New York.[4]

            California added the pay transparency law in January of 2023.[5]  It requires anyone with fifteen or more employees to include a pay scale for all job postings.[6]  That includes when using third-party job posting services.[7]  They are also required to maintain records of job title and wage rate history for all employees for the duration of employment plus three years.[8]  Employers with less than fifteen are not immune though, as they would be required to produce a pay scale upon reasonable request.[9]  Violations of the law will result in civil penalties.[10]

            New York features a similar law, which went into effect in September of 2023.[11]  New York’s law applies to all employers, regardless of size, and requires the pay range to be disclosed for job postings, promotions, and transfers.[12]  The pay range is the maximum and minimum wage that the employer expects to pay for the position.[13]  New York also protects out of state employees so long as those employees report to a supervisor, office, or site within New York State.[14]  They also protect against retaliation against people who exercise their rights under this law[15] with civil penalties.[16]

            California and New York’s transparency laws are extremely similar with only minor differences. Both ultimately serve the same function and aim to make the workplace fairer.[17]  The  States are the laboratories of democracy, and as such, have the ability to try out these kinds of ideas.[18]  The nation should pay close attention to the effects of these laws in the coming years and consider enacting them across the board. 

---

[1] See Caitlin Harrington, Pay Transparency is Sweeping Across the US, Wired (Sept. 18, 2023 7:00 AM), https://www.wired.com/story/pay-transparency-is-sweeping-across-us/.

[2] See Alonzo Martinez, U.S. Legislation That May Impact Background Screening in 2023: Part Three – Pay Transparency Laws Address Wage Equality and Negotiation Empowerment, Forbes (June 8, 2023 8:00 AM), https://www.forbes.com/sites/alonzomartinez/2023/06/08/us-legislation-that-may-impact-background-screening-in-2023-part-three–pay-transparency-laws-address-wage-equality-and-negotiation-empowerment/?sh=3b0cada14430.

[3] See Gowri Ramachandran, Pay Transparency, 116 Penn St. L. Rev. 1043, 1062-1067 (2012).

[4] See Michelle Peng, How to Prepare for New Pay Transparency Laws in California and Washington, Time (Dec. 20, 2022 4:11 PM), https://time.com/charter/6242729/ca-pay-transparency/.

[5] See Roy Maurer, State by State: Salary History Bans and Pay Transparency Laws, SHRM (Aug. 23, 2023), https://www.shrm.org/topics-tools/news/talent-acquisition/state-state-salary-history-bans-pay-transparency-laws.

[6] Cal. Lab. Code § 432.3(c)(3) (Deering 2023).

[7] Cal. Lab. Code § 432.3(c)(5) (Deering 2023).

[8] Cal. Lab. Code § 432.3(c)(4) (Deering 2023).

[9] Cal. Lab. Code § 432.3(c)(1) (Deering 2023).

[10] Cal. Lab. Code § 432.3(d)(4) (Deering 2023).

[11] See Maurer, supra note 5.

[12] N.Y. Lab. Law § 194-b(1)(a) (Consol. 2023).

[13] N.Y. Lab. Law § 194-b(6)(a) (Consol. 2023).

[14] N.Y. Lab. Law § 194-b(1)(a) (Consol. 2023).

[15] N.Y. Lab. Law § 194-b(2) (Consol. 2023).

[16] N.Y. Lab. Law § 194-b(5)(b) (Consol. 2023).

[17] See Martinez, supra note 2.

[18] See Bradley A. Blakeman, States Are the Laboratories of Democracy, The Hill (May 7, 2020 7:30 AM), https://thehill.com/opinion/judiciary/496524-states-are-the-laboratories-of-democracy/.

Tiny Toilers: How Brands Navigate America’s Child Labor Crisis

By: Cody Luong

Recently, the United States Department of Labor and The New York Times revealed the current scale of child labor in various industries across the country.[1] From meatpacking plants to dairy farms, exploiting underage workers has become a disturbing reality that cannot be ignored.[2]

A case that alarmed many was that of Packers Sanitation Services Inc. LTD (hereinafter “PSSI”), one of the nation’s largest food safety sanitation services providers.[3] The U.S. Department of Labor’s Wage and Hour Division discovered that PSSI had used more than 100 children for hazardous work across eight states.[4] But it gets worse as PSSI employs the minimum work age at 13 instead of the 14 our country requires.[5] Under this type of work, minors work in overnight shifts, handling dangerous equipment and chemicals, resulting in injuries.[6] PSSI’s payment of $1.5 million in civil money penalties reflects the seriousness of the violations and the gravity of the situation.[7]

On the other hand, brands and auditing firms have been forced to rethink their practices and increase their efforts to fight child labor within their supply chains.[8] For example, Whole Foods recognized the risks associated with migrant child labor and pledged to address them.[9] Auditing firms like Arche Advisors have been flooded with requests for domestic audits focused on child labor; thus, the industry has started to undergo a paradigm shift.[10]

Upon learning of child labor within its supply chain, Ford has ramped up its auditing efforts and developed more effective protections to prevent the abuses from reoccurring.[11] Similar actions have been taken by other major players in the food and beverage industry, such as the Northwest Dairy Association and Smithfield Foods, who have initiated audits and implemented safeguards to ensure compliance with labor laws.[12]

Despite such measures, a legal loophole remains to exploit the pervasiveness of migrant child labor, such as those in the agriculture industry.[13] For instance, in the United States, “it is legal for children as young as 12 to work unlimited hours outside of school with parental approval if they’re working in agriculture.”[14] This double standard is reflected by the fact that children work longer hours and in far more hazardous conditions than any other employment, risking their education, health, and youth.[15] Shareholders are pushing for even more robust action from companies like Tyson Foods and Perdue Farms, urging them to strengthen their age verification auditing procedures and hold suppliers accountable for violations.[16]

These situations warn of the need for greater oversight and accountability within supply chains; however, it is not enough to be reactive.  Despite companies’ pledges to address migrant child labor, the reality is that they hold the reins of power within their supply chains.[17] While some may genuinely strive for compliance, others prioritize profit margins over ethical practices, leading to a culture of finding loopholes instead of solving the real problems.[18] The present fine for a child labor violation is $15,138 per child, a negligible difference for major profitable companies.[19]

The unveiling of child labor as migrant supplies in America is a wake-up call for the industry.  The brands, auditing firms, and other relevant players must take decisive action to eliminate these abuses and ensure that all workers, regardless of age or background, are treated respectfully.  Only collectively can we build a tomorrow in which child labor is truly a thing of the past.

---

[1] See More than 100 Children Illegally Employed in Hazardous Jobs, Federal Investigation Finds; Food Sanitation Contractor Pays $1.5M In Penalties, U.S. Dep’t of Lab., https://www

.dol.gov/newsroom/releases/whd/whd20230217-1 (2023); see also Hannah Dreier, Confronted With Child Labor in the U.S., Companies Move to Crack Down, N.Y. Times (Feb. 7, 2024),  https://www.nytimes.com/2024/02/07/us/child-labor-us-companies.html#:~:text=128-,Confronted%20With%20Child%20Labor%20in%20the%20U.S.%2C%20Companies%20Move%20to,that%20goes%20into%20their%20products.

[2] See Dreier, supra note 1.

[3] See id.

[4] See id (“Working to exhaustion, children have been crushed by construction equipment, gotten yanked into industrial machinery and fallen to their deaths from rooftops.”).

[5] See elaws Advisors, Fair Labor Standards Act Advisor, U.S. Dep’t Of Lab., https://webapps.dol.gov/elaws/faq/esa/flsa/026.htm?_ga=2.37360423.627972887.1708403680-1596329587.1707405591.

[6] See elaws Advisors, supra note 5.

[7] See Erica MacDonald & Sylvia Bokyung St. Clair, Compliance Refresher Amid DOL Child Labor Crackdown, Law360, (Jan. 2, 2024), https://www.law360.com/articles/1779139/compliance-refresher-amid-dol-child-labor-crackdown.

[8] See Dreier, supra note 1.

[9] See id (“The changes include enhancing reviews of night shifts and shifts run by outside contractors, such as cleaning companies, and moving away from announcing audits in advance.”).

[10] See id.

[11] See id. For instance, after the Times discovered that children were working for a Ford supplier, Ford began “increasing audits and requiring that thousands of manufacturers begin looking over workers more carefully, even after they are hired.”

[12] See id (“[Smithfield] has also posted signs in Spanish and other languages around its plants emphasizing age requirements.”).

[13] Legal loophole allows child labor exploitation in the U.S., FreedomUnited (May 14, 2023), https://www.freedomunited.org/news/loophole-child-exploitation/.

[14] See id.

[15] See Zama Coursen-Neff, Child Farmworkers in the United States: A “Worst Form of Child Labor,” HRW (Nov. 7, 2011), https://www.hrw.org/news/2011/11/17/child-farmworkers-united-states-worst-form-child-labor

[16] See Dreier, supra note 1.

[17] See Danny Zane, Julie Irwin, & Rebecca Walker Reczek, Why Companies Are Blind to Child Labor, Harv. Bus. Rev., (Jan. 28, 2016), https://hbr.org/2016/01/why-companies-are-blind-to-child-labor.

[18] See e.g. Dorothy Atkins, Nestle Shopper Seeks Class Cert. In Child Labor Labeling Suit, Law360, (Jan. 22, 2024), https://www.law360.com/articles/1788623.

[19] See MacDonald, supra note 7.  

BOEING EMPLOYEES ALLEGE EXPOSURE TO TOXIC CHEMICALS IN THE WORKPLACE CAUSED REPRODUCTIVE HARM AND BIRTH DEFECTS

By: Angelique Bouzalakos

On February 16, 2024, a Washington state judge refused to give Boeing a “free pass” in a lawsuit over alleged birth defects caused by exposure to toxic chemicals in the workplace.[1] The Judge is set to review whether Boeing had a duty to its employees future children “based on foreseeable harm.”[2] The Judge expressed his skepticism at “the Boeing Co.’s assertion that Washington courts have never recognized employers as owing a duty of care to workers’ unconceived children.”[3] The Judge asserted that if what the plaintiffs allege is true, and Boeing knew about the toxic chemical and its potential to cause birth defects, then they should not get a “free pass.”[4]

BACKGROUND

            In 1980, one of the top doctors at Boeing, Dr. Barry Dunphy, attempted to alert the company to a potentially fatal problem.[5] The doctor found that during the normal course of their employment, “tens of thousands” of workers were being exposed to hazardous amounts of toxic chemicals.[6] Among his findings, Dr. Dunphy wrote that these toxic chemicals “may result in future ‘outbreaks’ of serious illness – including sterility, fetal abnormalities, stillbirth, life-long chronic illness, cancer and death.”[7] The doctor’s notes indicated that Boeing’s President Malcolm Stamper was neither sympathetic nor happy to hear the news.[8] These notes are now being reviewed, among other documents, as evidence in a number of lawsuits all alleging that the doctor’s warnings indeed came true.[9]

            Three families, whose children all suffer from some kind of ailment (e.g., heart conditions, neurological conditions, genetic disorders), sued Boeing, alleging that Boeing failed to protect them from these toxic chemicals, and as a result, caused birth defects in their children.[10] It is noted that Dr. Dunphy’s warning “is one of the earliest documents showing some company experts have long suspected the toxins… pose risks not just to workers, but their unborn children too.”[11] Among the toxins, some are heavy metals (e.g., cadmium, lead, and chromium), and some are solvents (e.g., toluene, xylene, petroleum distillates, etc.).[12] Some of these chemicals that the lawsuits identify are still used and present at the Boeing plant where the plaintiffs worked.[13]

            Lead plaintiff’s attorney Michael Connett of Waters Kraus & Paul argues that workers are still at risk because Boeing has failed to “communicate the hazards and adequately enforce safety rules.”[14] Over 40 years ago, Dr. Dunphy insisted the company would face serious consequences due to their “impotent occupational health program” and sorely needed an “effective Industrial Hygiene program.”[15]

            The company maintained that there is “mixed scientific evidence” to support the connection between the chemicals and the birth defects, and that it is entirely dependent upon the “chemical, the manner of exposure and the dose.”[16] According to representatives, the company maintains a list of “chemicals of concern” for “reproductive toxicity,” which the depositions show, and illustrate the company has been keeping track of this risk for many years.[17] Although the company “instituted monitoring programs to ensure worker exposure levels were below regulatory maximums,” it is unclear whether workers are truly aware of their exposure risk.[18] In 2021, toxicologists at Boeing did an analysis of more than 100 chemical information sheets, and added the line “may be toxic to reproduction” in their database entry.[19] Connett said that employees are used to taking some risks, but that they are “consistently not prepared to also risk their children.”[20]

             Boeing’s attorneys assert that Washington courts “have recognized a preconception of duty of care only in healthcare cases.”[21] However, Washington state Judge Dixon questioned Boeing’s attorneys on why it would not also apply in the employment setting and insisted that an alleged birth defect risk is not “distinguishable from any other kind of physical, on-the-job risk that employers are obligated to warn their workers about.”[22] As the Judge opined, Boeing could have just “post[ed] a sign or something” about the warnings and health dangers of the chemicals.[23]

            At the close of the hearing, the Judge told the parties he would be conducting a more thorough review of the case law before issuing any decisions on Boeing’s motion to dismiss.[24]

---

[1] Rachel Riley, Judge Wary of Boeing’s Bid to Duck Birth Defect Suit, LAW360(Feb. 16, 2024, 7:50 PM), https://plus.lexis.com/newsstand/law360-us/article/1803971.

[2] Id.

[3] Id.

[4] Id.

[5] Rachel Riley, Secret Files Reveal Boeing Doctor Warned of Toxic Risks, Birth Defects, THE COLUMBIAN (Nov. 28, 2022, 6:01 AM), https://www.columbian.com/news/2022/nov/28/secret-files-reveal-boeing-doctor-warned-of-toxic-risks-birth-defects/.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Riley, supra note 5.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Riley, supra note 5.

[17] Id.  

[18] Id.

[19] Id.

[20] Jake Goldstein-Street, At Boeing’s Everett Plant, New Lawsuits Allege Further Birth Defects, HERALDNET (Sep. 29, 2023 5:08 PM), https://www.heraldnet.com/news/at-boeings-everett-plant-new-lawsuits-allege-further-birth-defects/.

[21] Riley, supra note 1.

[22] Id.

[23] Id.

[24] Id.

HealthCare Workers Denied Overtime Compensation in Violation of the Fair Labor Standards Act

By Jessica Kohn

Friday, February 2, 2024, ex-direct care worker Jennifer Sharp alleged that Community Health Systems Inc. had been automatically deducting a half hour of wages per day regardless of whether their workers actually found the time to escape their worktime duties and take a break.[1] This proposed class action and collective action filed in Tennessee federal court is demanding all unpaid overtime wages dating back to November 2018 in additional to liquidated damages.[2] Additionally, on behalf of a similarly defined class dating back to November 2015, Sharp is demanding all withheld straight time wages.[3] Sharp claimed that in her two and a half years working at LaFollette Medical Center, she and her colleagues were scheduled to work between thirty-six and forty hours a week, which included a thirty minute unpaid meal break each day.[4]

However, healthcare workers often end up not taking this break because they are unable to slip away from their patients.[5] This is because healthcare workers are required to respond to patients whenever they are needed, regardless if they are on their break.[6] This makes it rare for a healthcare worker to have thirty uninterrupted minutes which leads to them working two and half hours of uncompensated overtime each week.[7]

Sharp says that “because her colleagues routinely worked more than 40 hours per week, untaken break time should have been compensated at the time-and-a-half guaranteed under the Fair Labor Standards Act.”[8] Under the Fair Labor Standards Act,

“Covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek (any fixed and regularly recurring period of 168 hours – seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay. There is no limit on the number of hours employees 16 years or older may work in any workweek. The FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days.”[9]

Sharp claims that because the defendants are sophisticated parties and employers, that they knowingly, willfully and with reckless disregard carried out this illegal pattern of failing to pay their employees and other similarly situated employees the proper amount of overtime compensation.[10] Sharp believes that the defendant’s sophistication made them aware that they were in violation of the Fair Labor Standards Act.[11] According to Sharp, “the hospital knew or should have known that its automatic deduction policy, paired with its refusal to fully relieve workers of their duties would lead to overtime underreporting.”[12] Because of this, Sharp is claiming that the policy in place is a willful flouting of the Fair Labor Standards Act and Tennessee state wage protections that is an attempt to exploit employees.[13]

---

[1] See Caleb Drickey, Health Workers Say They Are Owed Meal Break Pay, l. 360 (Feb. 5, 2024), https://www.law360.com/employment/articles/1794278/health-workers-say-they-are-owed-meal-break-pay.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] Id.

[9] 29 U.S.C. § 207 (1949).

[10] See Drickey, supra note 1.

[11] See id.

[12] Id.

[13] See id.

CALIFORNIA STATE UNIVERSITY FACULTY MEMBERS STRIKE HIGHLIGHTS THE BENEFITS OF COLLECTIVE BARGAINING FROM A UNION PERSPECTIVE

By: Sydney Albert

On the first day of the spring semester, Monday, January 22, 2024, months of attempted negotiations between the California State University system (CSU) and the California Faculty Association (CFA) reached its breaking point.^[1]  Just two weeks after CSU stopped contract negotiations, faculty members within the twenty three CSU system institutions went on strike in protest over unmet wage demands and insufficient working conditions.^[2]  This not only included instructional faculty members, but also coaches, librarians, and counselors.^[3] CFA members went on strike in an effort to gain a raise in salary for lower-paid faculty members, a general salary increase for all faculty, parental leave reflective of their work roles, and adequate staffing of mental health counselors.^[4]

            CSU was offering a 15% pay increase over the course of three years and two additional weeks of parental leave, raising the time off for parental leave across all positions from six to eight weeks.^[5]  However, CFA wanted a 12% pay increase upfront as well as more adequate measures regarding their concerns as they relate to working conditions.^[6] “Faculty, students, and staff are resourceful, intelligent, driven people. If we had access to what we needed, more students would be thriving. CSU management needs to invest in the direct providers – the teachers, counselors, coaches, librarians,” said CFA member and Cal Poly Pomona Counselor Maria Gisela Sanchez Cobo.^[7]  Sanchez Cabo further added that these demands are coming at a time where CSU raised tuition at their campuses state-wide, yet CSU is telling their faculty there is no money for them.^[8]

CFA had planned for the strike to last a full week.^[9] However, within just twenty-four hours of the strike commencing, CFA and CSU were able to reach a tentative agreement.^[10] Some highlights from the agreement reached between CSU management and CFA members include a retroactive 5% general salary increase for faculty members for the current academic year, a 5% generally salary increase for the upcoming academic year, a range of raises in salary for the lower-paid faculty members based on the position the hold, increasing parental leave from six to ten weeks, and providing support for lecture engagement in service work.^[11]

This is not the first time CFA has gone on strike.[12] In November, 2022, 48,000 employees at CSU institutions participated in a walk out in protest of unfair wages in light of the cost of living in California.[13] In contrast to the most recent strike, the November strike lasted six weeks.[14] CFA credits the quick turn-around this time around to CFA taking a historic level of collective action, showing CSU they were to be taken seriously, something CFA believes was not the case prior to the strike.^[15] While both CSU and CFA seem content with the agreement, there has yet to be ratification.^[16] CFA has set for voting on this matter to take place February 12 through 18.^[17]

The CFA strike comes at a time where the nation has had a front row seat in witnessing the power that strikes and collective bargaining hold within the realm of employment.^[18] As demonstrated by SAG-AFTRA and the Writer’s Guild, the United Auto Workers, and nurses nationwide, unionized workers are using their voices and standing up for fair contracts.^[19] In 2023, from January to October, we had 312 strikes in the United States, comprising of around 453,000 workers.^[20] This is nearly double the amount of strikes seen in 2021 with over six times the amount of workers participating.^[21] Experts and commentators have attributed this uptick to a variety of factors.^[22] The importance of the essential worker and employees in service fields became abundantly clear during the COVID-19 pandemic.^[23] The pandemic casted a light on the sacrifices employees make to serve the public.^[24] We are also living through a time with one of the highest approval ratings for labor unions since 1965 with 71% of Americans supporting labor unions.^[25] The newfound importance of employees in service fields coupled with such national support has provided employees with considerable leverage when it comes to negotiations and making the decision to strike.^[26] 

While the deal reached between CSU and CFA is still tentative, this much has become clear: strikes are a vital tool for employees in collective bargaining and are not going anywhere anytime soon.^[27]

---

^[1] See Danielle Douglas-Gabriel, Faculty at Cal State, largest U.S. public university system, begin strike, Wash. Post (Jan. 22, 2024, 12:40 PM), https://www.washingtonpost.com/education/2024/01/22/cal-state-faculty-strike/.

^[2]See California State University faculty launch weeklong strike across 23 campuses, CBS News (Jan. 22, 2024, 11:44 AM), https://www.cbsnews.com/sanfrancisco/news/california-state-university-faculty-launch-weeklong-strike-across-23-campuses/.

^[3]See Samantha Delouya, Thousands of faculty walk off the job at largest university system in US, CNN (Jan. 22, 2024, 3:44 PM), https://www.cnn.com/2024/01/22/business/csu-faculty-5-day-strike/index.html#:~:text=In%20November%202022%2C%2048%2C000%20academic,transportation%20subsidies%20and%20other%20benefits.

^[4] See CFA Members’ Historic Systemwide Strike Begins Monday, Cal. Fac. Ass’n. (Jan. 18, 2024), https://www.calfac.org/cfa-members-historic-systemwide-strike-begins-monday/.

^[5]  See CSU January 22 Statement on California Faculty Association Strike, Cal. State Univ. (Jan. 22, 2024), https://www.calstate.edu/csu-system/news/Pages/CSU-January-22-Statement-on-CFA-Strike.aspx.

^[6] See CFA Members’ Historic Systemwide Strike Begins Monday, supra note 5.

^[7] Id.

^[8] See id.

^[9] See California State University faculty launch weeklong strike across 23 campuses, supra note 2.

^[10] See Max Zahn and Jolie Lash, California State University workers end strike after reaching tentative agreement, abc News (Jan. 23, 2024, 1:19 AM), https://abcnews.go.com/US/30000-california-state-university-workers-set-strike/story?id=106561392.

^[11]See Tentative Agreement Reached Ending CFA Members’ Historic Systemwide Strike, Cal. Fac. Ass’n. (Jan. 22, 2024), https://www.calfac.org/tentative-agreement-reached-ending-cfa-members-historic-systemwide-strike/.

[12] See Delouya, supra note 3.

[13] See id.

[14] See id.

^[15] See Tentative Agreement Reached Ending CFA Members’ Historic Systemwide Strike, supra note 11.

^[16] See Tentative Agreement Updates, Cal. Fac. Ass’n. (last visited Feb. 2, 2024), https://www.calfac.org/tentative-agreement/.

^[17] See id.

^[18] See Nathaniel Meyersohn, Strikes make a comeback in America, CNN (Sept. 16, 2023, 8:17 AM), https://www.cnn.com/2023/09/16/business/strike-uaw-writers-actors-america/index.html.

^[19] See Jessica Dicker, Why so many workers are striking in 2023: ‘Strikes can often be contagious,’ says expert, CNBC (Oct. 9, 2023, 8:00 AM), https://www.cnbc.com/2023/10/09/from-uaw-to-wga-heres-why-so-many-workers-are-on-strike-this-year.html.

^[20]See id.

^[21]See id.

^[22]  See Meyersohn, supra note 18.

^[23]  See id.

^[24] See id.

^[25] See Justin McCarthy, U.S. Approval of Labor Unions at Highest Point Since 1965, Gallup (Aug. 20, 2022), https://news.gallup.com/poll/398303/approval-labor-unions-highest-point-1965.aspx.

^[26]  See Meyersohn, supra note 18.

^[27] See Dicker, supra note 19.

New York Tries To Set Example for Delivery Driver’s Wages

By: Cody Luong

Delivery drivers are often taken for granted despite being the backbone of modern convenience. Though their inputs are primarily overlooked, these individuals make significant contributions towards guaranteeing reliable delivery of products and services to us. As a result, criticism of delivery drivers’ wages and working conditions in delivery platforms has caused controversies about app-based delivery work in New York.[1]

The Proposed Minimum Wage Law

On July 12, 2023, New York City passed a revolutionary minimum wage law for app–based food delivery workers.[2] It proposed that the minimum wage be $17.96 per hour, excluding tips, increasing to $20 per hour not later than April.[3] Many lauded the city’s decision as an important milestone in their quest to guarantee fair pay for workers struggling with meager wages and insecure working environments.[4] At that point, 60,000 drivers in Manhattan barely made an average of $7.09 dollars per hour, which was so little for one to survive within New York, among the costliest cities globally.[5]

Legal Challenges from Major Delivery Platforms

Nonetheless, the proposed law met stiff resistance from the major delivery firms after it was presented.[6] With Grubhub, DoorDash sued the city, claiming that the ordinance endangers their business while potentially inflicting more significant harm on delivery workers than benefits they’ll obtain.[7]

DoorDash argued that the law did not consider that drivers are flexible regarding their working time and place of work.[8] Grubhub also disagreed, asserting that the rule overlooked the wish of delivery partners to work on their own terms with potential loss opportunities to both drivers and local businesses.[9]

This led to legal challenges that temporally suspended the effectiveness of the minimum wage law.[10] As noted by Vilda Vera Mayuga, the Department of Consumer and Worker Protection’s Commissioner, the law was aimed at lifting thousands of poor working New Yorkers and their families.[11] This wage fails to meet the minimum needs in a city notorious for its high living expenses.

Judge Upholds Minimum Wage Law

            On September 28, a New York judge ruled to implement the minimum pay rate of $18 per hour for New York City’s food delivery workers.[12] Ligia Guallpa said, “Multi-billion dollar companies cannot profit off the backs of immigrant workers while paying them pennies in New York City and get away with it.”[13] But an Uber spokesman argued, “This law will put thousands of New Yorkers out of work and force the remaining couriers to compete against each other to deliver orders faster.”[14] Relay, a smaller delivery platform, has drivers already earning more than $30 per hour.[15] Regardless, they still agreed with Uber. They sued the city and were granted a temporary injunction, knowing that the law would bring unintended consequences while simultaneously disrupting their business model, leading to unnecessary costs and implications.[16] With both sides standing their ground, only time will tell whether the workers’ frustration will continue to grow. This situation might have been avoided if app-based delivery workers had initially been classified as employees, not independent contractors.[17] As the situation stands, if the new minimum wage law for delivery workers succumbs to its unintended consequences, it will be imperative for all stakeholders from both sides to engage in constructive dialogue and find common ground that addresses the concerns of both workers and businesses in the food delivery sector.

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[1] See Rebecca Bellan, Nobody is happy with NYC’s $18 delivery worker minimum wage, TechCrunch (Jun. 13, 2023), https://techcrunch.com/2023/06/13/nobody-is-happy-with-nycs-18-delivery-worker-minimum-wage/?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAIfP1GXXGVdN0vS0bPvLsbRodpqAvHLeqlD8MOa25u73Uans56w6uQsBidH7x4_jEjH2nGsSWJEqN_jCZPAWFemz14j3BPo8lAZkNZOeT84cZ95DVLvCuGfnJNr_g8OaXF6dFeypLGMVhcpFLWR7lEzF3-Ka_2TcYI8vj0jR4Gq8 (arguing that workers and the city’s comptroller say the minimum pay –is not enough for New York City’s standard of living).

[2] See Wyatte Grantham-Philips, New York City Will Implement Minimum Wage for App-Based Workers, Marking National First, APNews (Jun. 12, 2023), https://apnews.com/article/nyc-delivery-workers-minimum-wage-app-45d1fe3a184bc1a49acef647d6cb5758.

[3] See Id.

[4] See Id.

[5] See Id.

[6] See Samantha Delouya, Judge Temporarily Blocks NYC’s Food Delivery Minimum Wage Law, CNN Business (Jul. 7, 2023), https://www.cnn.com/2023/07/07/business/food-delivery-minimum-wage-lawsuit-doordash-grubhub/index.html.

[7] See Id.

[8] See Id.

[9] See Id.

[10] See Id.

[11] See Id.

[12] See Rebecca Bellan, Judge Upholds $18 Minimum Pay for NYC Delivery Workers, TechCrunch (Sept. 28, 2023), https://techcrunch.com/2023/09/28/judge-upholds-18-minimum-pay-for-nyc-delivery-workers/amp/.

[13] See Id.

[14] See Id.

[15] See Id.

[16] See Id.

[17] See Claudia Irizarry Aponte, Food Delivery Workers Would Be Paid $23.82 Minimum Under Proposed New City Rules, The City (Nov. 16, 2022), https://www.thecity.nyc/work/2022/11/16/23462218/grubhub-uber-doordash-food-worker-pay-nyc#:~:text=New%20York%20City’s%20app%2Dbased,via%20public%20notice%20Wednesday%20morning.

Non-Compete Agreements Now Facing Unprecedented Legal Scrutiny

By: Roshelle Firdman

About 30% of private sector employers currently use noncompete agreements for all their workers, citing a need to protect trade secrets and other sensitive information from rival firms.[1] The Federal Trade Commission (the “FTC”), on January 5, 2023, released a proposal suggesting the prohibition of noncompete agreements on the basis that they constitute unfair methods of competition.[2] Specifically, the FTC believes that noncompete agreements violate Section 5 of the Federal Trade Commission Act.[3] In support of this notion, the FTC concluded that “noncompetes suppress wages, stifle innovation and make it harder for entrepreneurs to start new businesses.”[4] This proposed prohibition is still awaiting a final rule federally, but the four states of California, Minnesota, North Dakota, and Oklahoma have already proceeded with the banning of noncompete agreements entirely.[5] Other states have enacted restrictions such as setting a compensation threshold or requiring advance notice, [6] while Maryland and Oregon have prohibited noncompete use among lower-paid employees to start. [7] New York legislature passed a bill—Senate Bill S3100A—which would not only update New York labor law and prohibit noncompete agreements and certain restrictive covenants but would also authorize “covered individuals to bring a civil action in a court of competent jurisdiction against any employer or persons alleged to have violated such prohibition.”[8] Even so, this bill is not yet effective as it is still awaiting approval and signature by Governor Kathy Hochul.

            The FTC estimates the positive future implications to a ban on noncompete agreements could result in an increase to wages by nearly $300 billion a year while simultaneously broadening job opportunities for approximately 40 million Americans (allowing workers to be free from the restrictions those agreements historically place on them). [9] However, big businesses, in favor of the noncompete, will not necessarily let this ban go without a fight. Upon releasing their proposal, the FTC received a series of letters from the U.S. Chamber of Commerce and a leading human resources group in response which essentially asked the agency to stand down or shrink/re-work its proposal, primarily questioning their legal authority of taking such action.[10]

But the FTC is not the only agency concerned with the dangers, negative repercussions, and legal challenges of noncompetes. Back in February of 2023, the National Labor Relations Board (NLRB) decided in McLaren Macomb that an employer is deemed as committing an ‘unfair labor practice’ if they attempt to provide employees with a severance agreement that requires them to waive their rights and forces broad confidentiality upon them.[11] After this, General Counsel Jennifer Abruzzo (“GC”) for the NLRB issued a memorandum[12] which announced that some noncompete agreements violate the National Labor Relations Act  (NLRA).[13] This Memorandum provides Regional Directors and other staff of the NLRB with how they can and should navigate the field – now that the McClaren Macomb rule has taken effect. Some of the GC’s interpretations of the McClaren decision include that employers can continue to present employees with lawful and compliant severance agreements as long as “they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees.”[14] Not only that, McClaren McComb was designed to be applied retroactively, so that employers may be subject to charges of unfair labor practice attached to their existing agreements.[15] Notably, McClaren Macomb only impacts confidentiality and disparagement provisions for nonsupervisory employees; and thus, they are still applicable to supervisors according to this decision.[16]

            While we await the outcome of the federal ban, noncompetes may yet have a future. It is plausible to expect that we are amidst a transformation of the agreement as we lean further towards increased employment rights.

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[1] J.J. McCorvey & Sara Ruberg, Big business rally to preserve their right to limit ex-workers’ job options, NBC (April 20, 2023, 1:44 PM) https://www.nbcnews.com/business/business-news/ftc-ban-noncompete-agreements-employers-lobbying-rcna77169.

[2] Sarah R. Goodman, Noncompete Update: Bans, New Limitations, and Restrictions 268 The Legal Intelligencer 7 (2023).

[3] Leah Shepherd, States Outlaw Noncompete Agreements, SHRM (July 10, 2023)

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/states-restrict-noncompetes.aspx#:~:text=Four%20states%E2%80%94California%2C%20Minnesota%2C,threshold%20or%20requiring%20advance%20notice;15 U.S.C. § 45(a)(1)

[4] See id.

[5] See id.

[6] See id.

[7] Andrea Hsu, Millions of workers are subject to noncompete agreements, they could soon be banned, NPR (January 5, 2023, 3:13 PM) https://www.npr.org/2023/01/05/1147138052/workers-noncompete-agreements-ftc-lina-khan-ban.

[8] Senate Bill S3100A (2023).

[9]  Hsu, supra  note 7.

[10] Ruberg, supra note 1.

[11]McLaren Macomb, 372 N.L.R.B. No. 58 (2023).

[12] See Memorandum GC 23-05.

[13] Allen Smith, NLRB General Counsel: Noncompete Agreements Usually are Unlawful, SHRM (May 31, 2023) https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/nlrb-noncompetes-often-violate-nlra.aspx.

[14] See Memorandum GC 23-05.

[15] See id.

[16] See id.

I Don’t Want No Union Buster: New York Bans Mandatory Workplace “Captive Audience” Meetings

By: Michael Zanni

On September 6, 2023, New York Governor Kathy Hochul signed Senate Bill 4982 and Assembly Bill 6604 into law prohibiting most employers from requiring employees to attend employer-sponsored meetings where the “primary purpose” is to communicate the employer’s opinions on political[1] or religious matters[2], including joining a labor organization.[3] These efforts, which took immediate effect, make New York the latest state to ban “captive audience meetings,” which are “anti-union meeting[s] held on company time, [where] worker attendance is mandatory, and [where] workers can be fired for refusing to attend.”[4] The new law amends New York Labor Law Section 201-d,[5] making it unlawful for employers to take adverse action against employees who refuse to attend “captive audience” meetings or listen to alternative communications.[6] Additionally, employers are required to post a notice at work locations notifying employees of their rights under Section 201-d.[7]

Despite the restrictions, the amended law still permits certain meetings and communications. First, employers are allowed to communicate information required by law and information that is necessary for employees to perform their job duties.[8] Second, institutions of higher education may meet/communicate with employees who are part of coursework, symposia, or academic programs at the institution.[9] Third, “casual conversations” between employers and non-supervisory employees about religious and/or political matters are permitted, so long as the employees are not required to participate in the discussion.[10] Fourth, religious entities and educational institutions that are exempt under Title VII of the Civil Rights Act of 1964 are allowed to engage in speech related to “religious matters” with employees who perform work connected with the activities undertaken by the entity or institution.[11]

This change comes after the release of the National Labor Relations Board’s (“NLRB”) General Counsel’s April 2022 memorandum, which outlined a proposal to bring before the NLRB asking they find employer captive audience meetings and other related mandatory meetings unlawful under the National Labor Relations Act (the “Act”).[12]

More than 70 years ago, the National Labor Relations Board held in Babcock & Wilcox Co., 77 NLRB 577 (1948), that employers are permitted to hold captive audience meetings to urge employees to reject union representation.[13] This has resulted in employers forcing employees to attend meetings, so long as they do not threaten, punish, or promise benefits to employees.[14] However, employers still wind up using express or implicit threats to discharge or discipline employees who assert their right to refrain from listening by failing to attend meetings, or leaving them early.[15] Captive audience meetings have for decades been used by employers taking part in election campaigns to communicate their message to employees.[16]

Though New York acted in response to the NLRB memo, the state law may be challenged by employers arguing that it unconstitutionally restricts their First Amendment free speech rights and that it is preempted by controlling federal law, primarily Section 8(c) of the Act.[17] As more states have passed similar legislation to New York’s, challenges have followed.[18] For example, the U.S. Chamber of Commerce is currently challenging Connecticut’s law, arguing it is preempted by Section 8(c) of the Act and violates the First and Fourteen Amendments.[19]

While New York, as a union-friendly state, may face their own battle later, they feel the Board under the Biden Administration has made clear it intends to follow a pro-labor agenda encouraging increased unionization.[20] New York employers subject to these laws need to consider whether they should make meeting attendance voluntary or, simply proceed accoriding to the Act.[21]

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[1] “Political matters” is defined as “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.” S. B. S4982, 2023-24 Leg. Sess. (N.Y. 2023); Assemb. B. A6604, 2023-24 Leg. Sess. (N.Y. 2023).

[2]  “Religious matters” includes “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.” S. B. S4982; Assemb. B. A6604.

[3] See, e.g., Steven M. Swirsky et al., New York State Bans Workplace “Captive Audience” Meetings, The Nat’l L. Rev. (Nov. 17, 2023), https://www.natlawreview.com/article/new-york-state-bans-workplace-captive-audience-meetings.

[4] Elizabeth J. Masson, “Captive Audience” Meetings in Union Organizing Campaigns: Free Speech or Unfair Advantage?, 56 Hastings L.J. 169, 171 (2004). Captive audience meetings are considered a “union-busting tactic.” See Rebecca Gans, Out of Captivity: Preventing Captive Audience Meetings in the Age of National Labor Relations Board Flip-Flopping, 31 J.L. & Pol’y 164, 165-66 (2022). New York joined Connecticut, Maine, Minnesota, and Oregon as the only states currently prohibiting captive audience meetings. Simone R.D. Francis et al., New York Governor Signs Law Banning Mandatory ‘Captive Audience’ Meetings, Ogletree Deakins (Sept. 16, 2023), https://ogletree.com/insights-resources/blog-posts/new-york-governor-signs-law-banning-mandatory-captive-audience-meetings/.

[5] N.Y. Lab. Law § 201-d (McKinney 2023).

[6] Francis et al., supra note 4. Adverse actions can include refusing to hire, discharging, disciplining, discriminating against, or otherwise penalizing or threatening an employee. See id.

[7] Swirsky et al., supra note 3.

[8] S.B. S4982, 2023-24 Leg. Sess. (N.Y. 2023); Assemb. B. A6604, 2023-24 Leg. Sess. (N.Y. 2023). Employers are permitted to create a meeting/conversation requirement, but it may only be limited to the employer’s managerial and supervisory employees. S. B. S4982; Assemb. B. A6604.

[9] S. B. S4982; Assemb. B. A6604.

[10] S. B. S4982; Assemb. B. A6604.

[11] S. B. S4982; Assemb. B. A6604.

[12] See Roy R. Galewski & Taylor C. Ventre, NLRB General Counsel Aims to Drastically Change Employers’ Rights Related to “Captive Audience” and Other Mandatory Meetings About Unionization, Harris Beach (Apr. 8, 2022), https://www.harrisbeach.com/insights/nlrb-general-counsel-aims-to-drastically-change-employers-rights-related-to-captive-audience-and-other-mandatory-meetings-about-unionization/. Section 7 of the National Labor Relations Act “promises employees the right to engage in—and to refrain from engaging in—a wide range of protected activities at work.” Memorandum from Jennifer A. Abruzzo on The Right to Refrain from Captive Audience and other Mandatory Meetings 1 (Apr. 7, 2022) (on file with author).

[13] Babcock & Wilcox Co., 77 NLRB 577 (1948).

[14] See Jonathan J. Spitz et al., Legislation Banning ‘Captive Audience’ Meetings Enacted in Minnesota, Awaiting Enactment in New York, Jackson Lewis (June 16, 2023), https://www.jacksonlewis.com/insights/legislation-banning-captive-audience-meetings-enacted-minnesota-awaiting-enactment-new-york.

[15] Abruzzo, supra note 12, at 2.

[16] See Jonathan L. Israel, New Labor Day Labor Laws for New York, The Nat’l L. Rev. (Sept. 18, 2023), https://www.natlawreview.com/article/new-labor-day-labor-laws-new-york.

[17] See Francis et al., supra note 4. Section 8(c) of the Act states that “expression of views without threat of reprisal or force or promise of benefit” does not constitute evidence of an unfair labor practice. 29 U.S.C. § 158(c). 

[18] See Swirsky et al., supra note 3. The U.S. Chamber of Commerce initiated litigation after Oregon passed its law in 2010 asserting federal preemption, but the litigation was dismissed based on lack of ripeness. Spitz et al., supra note 16. The Oregon law later survived a lawsuit by the NLRB in 2020, based on lack of standing. Id.

[19] Id.

[20] Id.

[21] Id.

Exploitation on the Deep Blue Sea

by Thomas S. Wolinetz

Last January, I took an amazing twelve-night cruise from New York to the Caribbean.  Recently, I found out that over twenty million people travel on cruise ships each year.[1]  I also learned that the cruise industry generated over thirty-seven billion dollars for the U.S. economy in 2013.[2]  During my voyage on the deep blue sea, I sparked up conversations with some of the cruise line’s wonderful employees.  At first glance, they seemed very happy. Unfortunately, I now know that the cruise lines are exploiting these employees.

Cruise line employees can be paid as low as eight hundred dollars per month, for a seven-day workweek.[3]  After learning that cruise line employees only make eight hundred dollars a month, I could not help but assume that salary is based off of a four- or five-hour workday.  However, I was surprised to learn that employees of a cruise line actually work at least ten hours per day,[4] and sometimes as much as fourteen hours each day.[5] That is about $2.63 per hour, for a ten-hour workday.  Furthermore, cruise line employees have to share a tiny cabin with at least two other employees.[6]  They are also not allowed to socialize with the cruise line guests outside of their work hours.[7]

All of this information leads me to wonder why a cruise line is allowed to pay their employees so little and treat them so poorly.  I also want to know why the Fair Labor Standards Act, which sets the minimum wage,[8] does not apply here.  Unfortunately, the answer is simple: a cruise line that registers its ships with countries such as the Bahamas, Panama, Liberia, or Greece[9] will not be required to follow United States minimum wage laws.  It is crazy to think that a cruise ship, that is spending more than half of its travel time docked in a United States port, is not required to follow United States minimum wage laws.  However, the time the ship is docked in a United States port is irrelevant.[10] Cruise ships are required to follow the guidelines set by the International Maritime Organization.[11]  The international guidelines state that a ship is required to follow the same laws and regulations of the country in which that ship is registered.[12]

Unfortunately, this level of exploitation is not illegal. It is even more unfortunate that people continue to take vacations on cruise lines, knowing that the employees are being exploited.  Next time you are sailing on the beautiful ocean, lying out by the pool, and sipping on a margarita, take a moment and look around at all of the hard working men and women that are making that moment possible.  Try to realize that you are having the time of your life, while they are being exploited.  I will leave you with a question to mull, next time you are thinking about booking that once-in-a-lifetime cruise: is it worth it?

[1] Cruise Ship Industry Statistics, STATISTIC BRAIN, http://www.statisticbrain.com/cruise-ship-industry-statistics (last updated Jan. 1, 2014).

[2] Id.

[3] Robert Morello, The Average Salary of Cruise Ship Workers, CHRON.COM, http://work.chron.com/average-salary-cruise-ship-workers-1932.html (last visited Aug. 30, 2014).

[4] Cruise Ship Employment Frequently Asked Questions, NORWEGIAN CRUISE LINE, http://www.ncl.com/about/careers/shipboard-employment/faq (last visited August 30, 2014).

[5] Life on board cruise ships, CRUISE SHIP JOBS, http://www.cruiselinesjobs.com/life-on-board/ (last visited August 30, 2014).

[6] Id.

[7] Id.

[8] Tom Streissguth, Minimum Wage on a Cruise Ship, CHRON.COM, http://work.chron.com/minimum-wage-cruise-ship-20834.html (last visited Aug. 30, 2014).

[9] Id.

[10] Id.

[11] James Walker, What cruise lines don’t want you to know, CNN (Aug. 30, 2014, 12:30 PM), http://www.cnn.com/2013/02/13/opinion/walker-cruise-ships/ (last updated Feb. 14, 2013, 3:21 PM).

[12] Id.