Monthly Archive: March 2016

Mar 28

St. John’s Law School Jumps in Rankings for the Second Consecutive Year

By Amanda Slutsky.

On March 16, U.S. News and World Report released the much-anticipated law school rankings. This year, St. John’s University School of Law increased its ranking by eight spots to number 74. The previous year, St. John’s increased by twenty-five spots! This thirty-three spot jump over two years is an overall representation of the bright future St. John’s offers its students.

The incredible jump can be partially attributed to the opportunities from the School’s different centers, clinics, externships, and honors programs. One particular bright spot is the Center for Labor and Employment Law. At the Theology of Work and the Dignity of Workers Conference in March 2011, Denis Hughes, the President of the New York State ALF-CIO stated, “St. John’s has one of the finest labor programs in the country.” Moreover, under the leadership of Professors David L. Gregory, the Center has recruited some of the most highly regarded practitioners in the field as adjunct professors, such as NLRB Regional Director, Karen P. Fernbach.

Finally, the composition of the student body community may also explain the School’s rapid rise in the rankings. The student body-vibe at St. John’s is unmatched. At many law schools, the inherently competitive nature of ranking students creates a stressful and hostile environment. St. John’s distinguishes itself with students who genuinely help one another succeed. The student body feels like a family that fosters success. As the school’s ranking increases, the student body will inevitably increase in its size, G.P.A., and LSAT scores, but that will not change the friendly environment.

These highlights are among many reasons that demonstrate the bright future that St. John’s offers its students. As a result, St. John’s can be expected to continue rising in the rankings for years to come.

 

 

Mar 15

MLB in Trouble

By Miller Lulow.

Just for a minute, let’s put ourselves in the shoes of Tony Clark, Executive Director of the Major League Baseball Players’ Association (the “MLBPA” or “Players”). The current Collective Bargaining Agreement (“CBA”) governing the relationship between the MLBPA and the Clubs expires December 1, 2016. Calculated speculation suggests that Bryce Harper, Right Fielder for the Washington Nationals, may be able to sign a $500M free agent contract in the winter of 2019. With Harper’s free agency lurking and the MLB seeing its most fruitful dividends in history, the MLBPA is going to be licking its chops going into the renewal of the CBA. When the MLBPA sits down with the MLB to restructure the CBA, the two positions butting heads will be: “We want a bigger piece of that pie” against “You’ve already had dessert.”

These conflicting positions raise an interesting debate: How much of the rising revenue are Players entitled to receive? The Clubs will assert that the rise in revenue is attributable to smart business decisions that capitalize on, and enhance, the product that the Players put out on the field. Conversely, the Players will argue that there would be no product to capitalize on if it were not for them. Thus, how can the Clubs overcome the Players’ argument that without the Players, the Clubs would not be owners?—they don’t. Instead, they agree and say, “Of course, you’re right, that’s why we pay you so much to begin with!”

The 2016 minimum salary in MLB will be $507,500. Tony Clark’s argument in favor of higher minimum salaries is that MLB players are employed 24/7/365. They are always on the company’s time. Even during the offseason, players are expected to work hard, become better at their craft, and get into better physical shape. Clark’s argument is very powerful once you consider that paying somebody $507,500 for 8,760 hours (1 year) of work means you are paying them $58 per hour. Though there are not many people who would turn down work for $58 an hour, think about working twelve to fourteen hours a day, traveling all over the country, rarely sleeping at home or seeing your family, and rarely getting more than five hours of sleep. Maybe $58 an hour does not seem all that great anymore. This goes to show the difficulty surrounding the impending restructuring of the CBA. As is the case every four years, the Players want more and the Clubs want more. How can we find common ground?

Maury Brown of Forbes.com says that MLB’s revenue grew $500M this year, bringing the total revenue close to $9.5 billion. So, if Harper signs a $500M contract, while he would not be paid all $500M up front, he would be signing a contract for 5.3% of the total MLB revenue. This idea is certain to make Clubs in smaller markets quiver. Harper has just about made it publicly clear that his intention is to be a Yankee—the Yankees have a rapidly declining payroll obligation that will culminate in the 2019 offseason to a mere $45.1M. Though all signs seem to point to the Yankees, because of the free agency system, the prices continue to drive themselves up.

So what ripple effect will a 10 year/$500M contract have on the rest of the players, or perhaps, on the rest of the Clubs? For one, do not think that the Players are ever rooting against each other in salary negotiations. The more money Player X signs for, the more money Player Y signs for, especially if they play the same position. But one player signing for $500M affects everybody, even the 6th-inning middle relievers, because the ripple is so massive. Therefore, the Players are rooting for Harper to sign as big of a deal as possible. On the other side of the table, while there are some Clubs that will pay that money for Harper, the overwhelming majority will not acquiesce. Such an amount would put a lot of pressure on the MLB to continue to raise its gross revenue.

Is it conceivable that one player could sign a contract worth $500M? It certainly looks like Bryce Harper will be that player in 2019. Indeed, this will pose some uncomfortable issues to be hashed out and hopefully agreed upon by the Players and the Clubs in the new CBA. It is interesting to see what kind of trouble it will bring for the MLB.

Mar 07

Supreme Court Upholds ERISA Preemption of State Recording Laws

By Ross Pollack.

On March 1, in Gobeille v. Liberty Mutual Insurance Co., the U.S. Supreme Court upheld a Second Circuit decision finding that a Vermont law requiring self-covered entities to report healthcare information was preempted by the Employee Retirement Income Security Act of 1974 (“ERISA” or the “Act”). At issue in the case was whether states could require self-funded and self-insured healthcare plans covered by ERISA (“covered entities”) to submit members’ information regarding healthcare claims and services for inclusion in a statewide database. After Vermont demanded this information from a third party insurer, Liberty Mutual, a plan covered by ERISA, asserted that the law should be preempted by ERISA.

Delivering the opinion of the Court, Justice Kennedy first noted the sweeping nature of the statute’s language, which explicitly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U. S. C. §1144(a). He then moved to the Court’s recent jurisprudence, which limits the potentially all-encompassing statute to state laws that either (1) directly reference ERISA plans or (2) indirectly interfere with the core functions of ERISA plans. See, e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650 (1995) and Egelhoff v. Egelhoff, 532 U.S. 141, 148 (2001).

Next, the Court held that because ERISA requires covered entities to submit similar types of data to the Secretary of Labor, such reporting is “central to, and an essential part of, the uniform system of plan administration contemplated by ERISA.” Thus, the Court ruled that Vermont’s law was preempted because it interfered with a core function governed by ERISA. Justice Ginsburg dissented, arguing that the law was not burdensome enough on covered plans to be preempted by ERISA.

The most intriguing part of the case was the concurrence written by Justice Thomas. He argued that ERISA’s preemption clause may be entirely unconstitutional. He contended that §1144(a) of the Act violated the Constitution’s Supremacy Clause because it regulates matters that are not interstate commerce even though they relate to ERISA. Should the Court adopt this view in future ERISA preemption cases, there could be a dramatic shift in the regulation of covered plans.

Mar 01

New York City Restaurants Adopt a No-Tipping Policy

By Charles Lazo on March 2, 2016.

In the past few decades, Fair Labor Standards Act (“FLSA”) lawsuit filings have been increasing at a steep rate. This can partly be contributed to FLSA, but also to states’ parallel wage and hour laws. In particular, state laws that pertain to tip credit.

Under FLSA, a restaurant can take a “tip credit” towards its minimum wage obligation for tipped employees equal to the difference between the required cash wage of at least $2.13 per hour and the federal minimum wage of $7.25 per hour. Under New York Labor Law (“NYLL”), restaurants may take a tip credit of $1.50 per hour toward their $9.00 per hour minimum wage obligation. However, for a restaurant to take a tip credit, it must comply with both FLSA’s and NYLL’s strict notice requirements—something that many restaurants fail to meet, despite their good intentions.

To avoid costly wage and hour lawsuits, some restaurant employers are deciding to forgo the advantages of the tip credit and instead pay its waitstaff a higher hourly wage. In effect, the restaurant employers do not need to meet the strict notice requirements, and consequently, do not need to protect themselves from wage and hour lawsuits.