On November 18, the National Labor Relations Board (NLRB) announced that it would be pursuing charges against Wal-Mart. The agency’s general counsel reportedly investigated workers claims that Wal-Mart had threatened employees for taking part in walkouts surrounding last year’s Black Friday shopping season. According to the NLRB, in several states, Wal-Mart unlawfully threatened, surveilled, disciplined or terminated employees as a response to or in anticipation of legally protected worker activities. The Wal-Mart stores were in a waide range of states, including: California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington. Despite authorizing these claims, the NLRB found no merit in other violations alleged. The NLRB found no merit in claims that alleged that worker’s were told to leave private property and changing work schedules. This case will be interesting to see unfold, as Wal-Mart is the largest employer in America, with over 2.2 million employees. 1 Black Friday 2013 is right around the corner and workers are planning other protests of Wal-Marts practices; this authorization of a complaint will give some publicity to the ongoing struggle between Wal-Mart and their employees. 2 For the official release from the NLRB, click here.
Tag Archive: Labor
Our own Professor David L. Gregory, executive director of the Center for Labor and Employment Law at St. John’s University School of Law, has been quoted several times in the New York Times in the past week. As a preeminent scholar on labor and employment law issues, Professor Gregory was quoted on varied current events, ranging from all municipal unions in New York City to the recent scandal involving workplace misconduct at the Miami Dolphins Franchise. See the links below for the past week’s articles and feel free to submit any that we might have missed in the comments!
On October 25th and 26th, I had the privilege of attending the Peggy Browning Fund’s 15th Annual National Law Students Worker’s Rights Conference in Linthicum Heights, Maryland. The event brought together law students across the country interested in the future of workers’ rights. The conference gave a greater understanding of the issues facing American workers, and was an opportunity to network with fellow students, and top practitioners in the field.
On Friday evening, conference attendees were treated to a showing of Trash Dance. The film explored an artist’s organization of sanitation workers in Austin, Texas for a performance piece. After the film, students offered opinions about the film’s metaphors for worker organization.
On Saturday morning, AFL-CIO General Counsel and former NLRB Member Craig Becker delivered the conference’s keynote address. Mr. Becker reflected on his own experiences when speaking about unions’ future challenges. He also offered insights into labor cases on the Supreme Court’s current docket and organized labor’s reception of the Affordable Care Act.
Students then participated in workshops that covered various salient issues. I attended three different workshops, all led by prominent figures in organized labor. Dennis Walsh, Regional Director of Region 4 of the NLRB, discussed the NLRA’s nuances in “Introduction to Basic Labor Law”. Fred Feinstein, former General Counsel to the NLRB, detailed how anti-union consultants grew from cottage industry to well-oiled machine in “Future of Worker Mobilization”. Baldwin Robertson, partner of Woodley & McGillivary, summarized issues facing state and municipal union members in “Public Sector Labor Law”.
In the plenary session on Saturday afternoon, panelists Leon Dayan, Jessica Robinson, and Peggy Shorey summarized new assaults on collective bargaining rights in the states, including new right-to-work initiatives and movements to end dues check-offs. In closing remarks, Dennis Walsh, Marley Weiss and Joe Lurie thanked all conference organizers for their hard work in putting together the engaging and educational programming. It was my pleasure to represent St. John’s University School of Law at the conference. The Peggy Browning Fund’s programs contribute greatly to the labor law community, and I was fortunate to be a part of this year’s conference.
Yesterday, the United States Department of Labor (“DOL”) announced the final version of a rule that will expand the coverage provided by the Fair Labor Standards Act (“FLSA”). Under the new rule, home care workers will be protected by the minimum wage and overtime provisions of the FLSA. Although home care workers whose primary role is to provide companionship to the patient remain exempt from the provisions, the expansion of coverage is expected to bring approximately 2 million additional workers under the coverage umbrella.
Already, both sides of the issue have expressed opinions on why the expanded coverage either will or will not be a good thing in the long run. Proponents of the new rule have highlighted the fact that a large number of workers who were traditionally underpaid for the services and hours they provided may now have an opportunity to earn a fair salary. Opponents of the new rule warn of “unintended consequences” that will result from requiring the payment of minimum wage and, in particular, overtime. They believe that one potential consequence will be the creation of an underground industry within the home health care industry comprised of workers who do not have proper training.
The new rule takes effect January 1, 2015. Between now and then, the DOL will work with stakeholders in the industry, including the agencies who employ home care workers, home care workers, and patients, on implementation. More information, including fact sheets and details about upcoming webinars, are available at a special DOL website, which can be accessed here.
 United States Department of Labor, Minimum wage, overtime protections extended to direct care workers by US Department of Labor, September 17, 2013, available at http://www.dol.gov/opa/media/press/whd/WHD20131922.htm.
 Bryce Covert, Why It Matters That Home Care Workers Just Got New Labor Rights, Think Progress, September 17, 2013, available at http://www.thinkprogress.org/economy/2013/09/17/2634411/home-care-workers-rule-change.
 Angela Gonzales, New ruling on home care workers could mean bigger bills for consumers, Phoenix Business Journal, September 17, 2013, available at http://www.bizjournals.com/phoenix/blog/health-care-daily/2013/09/new-ruling-on-home-care-workers-could.html.
 Department of Labor, supra at note 1.
St. John’s Center for Labor and Employment proudly co-sponsors NYU’s Annual Conference on Labor and held a kickoff reception the night prior to the conference. The keynote speaker at the reception was Lorelei Salas, Legal Director of Make the Road New York (MRNY).
MRNY is is a not-for-profit, membership-led organization based in Bushwick, Brooklyn; which builds the power of Latino and working class communities to achieve dignity and justice through organizing, policy innovation, transformative education, and survival services. As Legal Director for MRNY, Ms. Salas heads the housing and benefits litigation team, the employment team, the health advocacy team, and the newly formed immigration unit. In that capacity, she directs litigation, supervises the provision of direct legal services, and helps develop policy and campaign work around issues that affect the MRNY community.
Ms. Salas spoke to the group of students, friends of the CLEL and distinguished guests at a reception on June 3, 2013 about the opportunities and transformation that she is a part of for MRNY. She spoke about how her career and life experiences had shaped her passion for worker’s rights and a recent success, the organization of cash wash workers in New York City who have recently signed their first union contract.
The kickoff reception preceded NYU’s 66th Annual Conference on Labor brings together top government officials and leading attorneys in the fields of labor and employment law in a unique and practical two-day program offering practical learning and CLE credit.
The National Labor Relations Board (NLRB) announced on March 12, 2013, that it had decided it will not seek en banc rehearing of the Noel Canning v. NLRB decision. (Noel Canning Div. of Noel Corp., D.C. Cir., No. 12-1115, action announced 3/12/13). In that decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the January 4, 2012, recess appointments of three members to the Board were invalid. After consultation with the Justice Department, the Board announced its intention to file a petition for certiorari with the Supreme Court to review the Noel Canning decision.
The Noel Canning court held that President Obama’s appointment of three members to the Board did not comply with the requirements of the Recess Appointments Clause. It has been widely observed that the D.C. Circuit’s decision calls into question hundreds of decisions rendered by the National Labor Relations Board over the past year. If the Supreme Court affirms the lower court’s decision, all of these decisions would appear to be invalid. NLRB Chairman Mark Gaston Pearce vowed to fight the court’s decision shortly after the D.C. Circuit released its opinion. Chairman Pearce issued a statement that the NLRB “believes that the President’s position in the matter will ultimately be upheld.” In the interim, Chairman Pearce announced that the Board will continue to fulfill its statutory mandate and issue decisions. Although the Board’s decision has met with a fair amount of criticism, Chairman Pearce appears unfazed by calls that the Board should abide by the Circuit’s decision.
The Labor Board has until April 25th to file its petition for certiorari.
Available June 2013, Cambridge University Press is publishing A Primer on American Labor Law, 5th Edition by Professor William B. Gould IV. Professor Gould recently visited St. John’s to engage in a roundtable conversation with students, faculty, alumni and friends regarding “labor relations, baseball and beyond.” Additionally, Professor Gould served as the keynote speaker for the Center’s Fall 2011 event, Labor Relations and the Future of Professional Baseball. The publisher’s description follows:
“A Primer on American Labor Law is an accessible guide written for nonspecialists as well as labor lawyers – labor and management representatives, students, and general practice lawyers, and trade unionists, government officials, and academics from other countries. It covers topics such as the National Labor Relations Act, unfair labor practices, the collective bargaining relationship, dispute resolution, the public sector, and public-interest labor law. This updated fifth edition contains extensive new materials covering developments that include the repeal or change in public employee labor law and the development of case law relating to wrongful dismissals and pension reform in the public sector; bankruptcy in both the private and public sector; ADA litigation and 2008 amendments of that statute; new cases on all subjects, but particularly Bush and Obama NLRB decisions, sexual harassment, sexual orientation, and retaliation; and the globalization of labor disputes in labor-management relations in the United States, with particular reference to professional sports disputes and the extraterritoriality of American labor law generally.”
If you are interested in obtaining a copy of this book, please contact the publisher.
The transcript of Labor Relations and the Future of Professional Baseball, a symposium hosted by the St. John’s University School of Law’s Center for Labor and Employment Law, has been published by the Seton Hall University School of Law Journal of Sports and Entertainment Law. (22 Seton Hall J. of Sports & Entertainment L. 164.) The symposium was held on November 18, 2011 and was widely attended by practitioners and students alike.
“I am thankful to the Seton Hall Journal of Sports and Entertainment Law for publishing the transcript of the symposium and to all those who took part in making the event a success,” said Professor David Gregory, Executive Director of the Center for Labor and Employment Law. Jack Newhouse and Melissa Schneer, Class of 2012 officers of the St. John’s Law Labor and Law Society, were the driving forces of the Conference. “The day provided an inside look at the history and current status of labor relations in the sport of baseball, as well as spirited debate about the course of its future. It is my hope that the transcript will provide those who were not able to attend the opportunity to gain the insights and knowledge that came out of the symposium.”
The conference highlight was a keynote speech by Professor William B. Gould, IV of the Stanford Law School and former Chairman of the National Labor Relations Board during the Clinton Administration. He shared his childhood memories of baseball, and mapped out the development of the players union, from efforts to unionize in 1946 to the Messersmith-McNally arbitrations in 1975. (Id at 173-84.) He also shared his thoughts on the future of baseball, including potential changes in drug testing and drafting. (Id at 187-90.) Professor’s Gould’s remarks were followed by a panel discussion that covered a wide range of topics, including drug testing, international players, and what role considerations of giving back to the community should have in the collective bargaining discussion. (Id at 193-239.)
“The Labor Relations and Baseball symposium provides a terrific platform for our next major event. Friday, April19, 2013, will be devoted to a day long panel discussion on the Role of Arbitration in Professional Sports. Several of the world’s great arbitrators are confirmed speakers and our distinguished alumnus Gene Orza is confirmed as the program moderator. It will be free of charge and open to the community,” said Professor David Gregory.
Anyone interested in obtaining a copy of the Journal issue in which the November 18, 2011 transcript appears should contact the Seton Hall Journal of Sports and Entertainment Law at: Seton Hall School of Law, 1 Newark Center, Newark, NJ 07102. Phone: 973-642-8239.
The National Hockey League (NHL or League) has officially begun its new season. As pucks dropped across the NHL Saturday night, a new collective bargaining agreement (CBA) was in effect. Negotiating the agreement led to a lockout which lasted more than one hundred days and had far reaching costs (as discussed here). Much of the previous CBA will remain unchanged, however, there have been some important changes made to certain aspects of the relationship between the League and the National Hockey League Players Association (NHLPA or Union). These changes are highlighted below.
Two of the central sticking points during negotiations – the division of hockey-related revenue and a pension plan for players – were resolved through the new agreement. Under the previous CBA hockey-related revenue (HRR) was divided with a slight advantage for the players, who received 57%. The new agreement splits HRR evenly between the players and the League. Additionally, a defined benefit pension plan will be created. A defined benefit plan is one that provides recipients with retirement benefits for the remainder of their lives.
Along with a new split in HRR, the agreement creates a new structure for revenue sharing, including the creation of a Revenue Sharing Oversight Committee (the Committee). The revenue sharing pool will equal 6.055% of HRR per year and will obtain half of its funds from the ten teams that have the highest gross revenue. The remainder of the funds will be made up of money from league revenue and gate receipts for playoff games. The Committee will control the revenue sharing program and will exercise oversight authority over any team that generates less than 75% of the league average in gate revenues. The new agreement also creates an Industry Growth Fund (the Fund) which will provide assistance to any team that is struggling with generating revenue.
Individual player contracts (called Specific Player Contracts or SPCs) will remain the same for the remainder of the 2012-13 season, despite the shortened season. After the end of this season, any player contract that provides for a lower salary for any given season that is lower than the minimum salary for that season will be adjusted so that the player receives the minimum. The minimum salary begins at $525,000 and increases to $550,000 for next season. After that, it increases by an additional $25,000 every two years until it jumps by $75,000 between the 2016-17 and 2017-18 seasons. It then increases by $50,000 every other year until the end of the contract. After four seasons players will be eligible for salary arbitration under the system that existed in the previous CBA. The existing system of free agency is also carried over to the new agreement, meaning after seven seasons or at the age of 27 players become free agents and are able to talk to any team.
In addition to minimum salaries for individual players, the new CBA creates payroll ranges for the teams. The upper limit, midpoint, and lower limit are set for the first two seasons, after which the three amounts are set through a formula.
The new CBA divides the discussion of discipline into two distinct sections – on-ice discipline and off-ice discipline. The amount of fines that may be levied against a player for on-ice infractions is increased. Further, the new agreement provides for an appeals process players can access if they are subject to discipline. The first step in appealing on-ice discipline is going to the Commissioner; in certain cases, there may be an additional right to have an appeal heard by a neutral arbitrator. There are a number of reasons a player may be disciplined for off-ice conduct, including participating in conduct that can ultimately harm the game of hockey. In such a case a player may be subject to a range of penalties, from suspension to paying a fine to the nullification of the player’s contract. If a player wishes to appeal discipline for off-ice conduct, the appeal goes directly to a neutral arbitrator. The standard of review for all disciplinary appeals is substantial evidence
The final major area covered by the new CBA is health and safety concerns. The agreement begins by tackling substance abuse through a review of the Substance Abuse and Behavioral Health Program (the Program). A player who tests positive for drugs at “dangerous levels” must be referred to the program; the agreement sets a deadline by which the Program must create a definition of “dangerous levels.” The list of banned substances is expanded and the testing program is expanded. Additionally, the parties commit to a study of HGH testing, something that has been controversial in many professional sports. Players will now be subject to four types of testing: testing during training camp, “team testing” during the regular season, random individual testing (which can occur at any point, including during the off-season), and testing based on reasonable belief the player is using a banned substance. In order for the final type of testing to be utilized, probable cause must exist. Importantly, a player who refuses to comply with drug testing is seen as having tested positive. The strict liability provisions found in the old CBA remain in effect but the new agreement changes the defenses available to players who test positive.
The new CBA creates an Owner-Player Relations Committee which will meet at least twice each year to discuss a multitude of issues that affect both parties and the game of hockey as a whole. Given the difficulty the two parties seemed to have during the most recent negotiations and lockout, this type of committee will hopefully help to foster a better working relationship between the League and the Union.
The remainder of the changes deal with issues like how a team may conduct fitness testing, how long training camps may last, the number of days off players get during the season, the amount of insurance coverage players and their families are eligible to receive, and other playing conditions.
The new CBA between the NHL and the NHLPA alters some significant portions of the relationship between the parties. It is a document of compromise. The players lost 7% of the HRR they received under the old agreement and the owners had to agree to the creation of a defined benefit pension plan. However, each side received in return something that was important to it. It will be interesting to see how some of the open-ended issues are resolved (i.e.: testing for HGH) and how the new provisions end up impacting the game.
 Katie Strang, NHL, union have tentative agreement, ESPN, January 8, 2013, available at http://www.espn.go.com/nhl/story/_/id/8817955/nhl-nhlpa-reach-tentative-agreement.
 NHLPA, Summary of Terms, January 10, 2013, available at http://www.cdn.agilitycms.com/nhlpacom/PDF/Summary-of-Terms-1-10-13.pdf.
 NHLPA Staff, NHL, NHLPA Sign Collective Bargaining Agreement, Press Release, January 12, 2013, available at http://www.nhlpa.com/news/nhl-nhlpa-sign-collective-bargaining-agreement.
 NHLPA, Summary of Terms, supra at note 2.
 Rick Baert, NHL players score new defined benefit plan, Pensions & Investments, January 21, 2013, available at http://www.pionline.com/article/20130121/PRINTSUB/301219982/nhl-players-score-new-defined-benefit-plan.
 Steve Zipay, NHL, players reach tentative deal; ratification would end lockout, Newsday, January 6, 2013, available at http://www.newsday.com/sports/hockey/nhl-players-reach-tentative-deal-ratification-would-end-lockout-1.4412276.
 NHLPA, Summary of Terms, supra at note 2.
 Colleen E. Medill, Introduction to Employee Benefits Law: Policy and Practice (2011).
 NHLPA, Summary of Terms, supra at note 2.
The National Hockey League (NHL or League) lockout is over, having lasted 113 days. Since it began, the lockout has led to the cancellation of 510 games and the annual Winter Classic game, which should have been played at the turn of the new year. Hockey fans will once again be able to watch their favorite teams compete, as a shortened season is scheduled to begin this weekend. Although it is now a footnote in the history of labor-management relations in the NHL, the most recent lockout has provided an important reminder of the economic impact labor strife can cause.
Of course, the League and the National Hockey League Players Association (NHLPA or Union) both stood to lose a significant amount of money as a result of the lockout. In an uninterrupted season, over 1,200 games are played. Each game represents an estimated $975,000 in ticket sales alone. The math works out to a total loss of $497.25 million over the course of the lockout. In addition to lost ticket revenue, the League is losing around a quarter of its sponsorship revenue. The Union has also suffered economic losses. As of early January the players had lost six out of the thirteen paychecks they usually receive during a season.
But there are often costs associated with labor disputes that reach beyond the primary parties to the dispute. This was certainly the case with the NHL lockout. In addition to lost revenue from merchandise and concession sales at the arenas during games, the businesses surrounding the arenas have been impacted by the cancellation of games. In Boston, one parking garage operator estimated a revenue loss of $6,000 for each game that was not played. The nearby bars and restaurants were losing approximately $1 million per cancelled game. In Pittsburgh, it is projected that city businesses lost a collective total of $2.2 million per cancelled game on top of the roughly $15.2 million lost as a result of losing traffic from four preseason games that were not played.
Local businesses were not the only entities affected by the lockout. The municipalities in which the arenas are located also felt the sting of lost revenue. In New York, Nassau County, home of the New York Islanders, was expected to lose around $1 million from lost tax revenue if the entire season was lost. The expected loss is based on the $1.12 million the County received in hockey-related revenue in 2010; the sources of the revenue included sales tax, parking fees, and concession sales. In Ohio, Columbus and Franklin Counties, which share hosting duties for the Columbus Blue Jackets, projected tax losses between $3 million and $4 million if the NHL season was ultimately cancelled. The losses would be the result of unrealized income and sales tax receipts. It is unclear how much tax revenue was lost by the three counties as a result of the lockout.
The decline in revenue for local restaurants, bars and other businesses that resulted from the NHL lockout is important not only for the survival of individual businesses, but also for the strength of local economies. Once businesses start losing money and owners are unsure of when, if ever, the source of the lost revenue will return, they must make some choices. One of these choices may ultimately be to reduce the size of its workforce. If this occurs, there will be a further impact on the economy of the area as a result of the now-unemployed individuals having less money to spend. The decrease in revenue to local restaurants and retailers will also have a trickle-down effect on other businesses in the supply chain. With fewer customers, and ultimately fewer dishes served, restaurants may not order as much food as they would when they are routinely overbooked in the hours before or after a hockey game. Stores in the area that saw increased sales as a result of the foot traffic of individuals going to and from the games may not be able to turn around merchandise as quickly and, therefore, will not need to order from their suppliers as often or in the same quantities. Similarly, municipalities that lost revenue as the result of the lockout may have to make tough choices about how to fill the budgetary gaps left by the lost revenue. The municipality may have to decide to lay off workers, to cut back on providing certain services, or to raise taxes in order to replace the revenue while maintaining a balanced budget.
The costs of a labor dispute can be high for the parties to the dispute, with each side ultimately losing income in one form or another. But, as the recent NHL lockout has illustrated, there are also resulting costs for other entities that rely on the continued business and operation of the relationship between the two parties in order to help generate revenue. These tangential costs are often lost in the focus on the progress, or lack thereof, being made by the employer and union that are attempting to reach a settlement, but can have wide-ranging impacts on local communities.
 Katie Strang, NHL, union have tentative agreement, ESPN, January 8, 2012, available at http://www.espn.go.com/nhl/story/_/id/8817955/nhl-nhlpa-reach-tentative-agreement.
 Pat Leonard, NHL lockout that’s putting Winter Classic on ice is costing more than just one game, New York Daily News, December 29, 2012, available at http://www.nydailynews.com/sports/hockey/winter-classic-killing-lockout-costs-game-article-1.1229608.
 Ira Podell, NHL Lockout Over, Training Camps Set To Open Ahead of 2013 Season, Huffington Post, January 12, 2013, available at http://www.huffingtonpost.com/2013/01/13/nhl-lockout-over-training-camp_n_2465497.html.
 Joshua Berlinger, This Is How Much the Lockout Has Cost the NHL So Far, Business Insider, October 4, 2012, available at http://www.businessinsider.com/the-nhl-just-cancelled-the-first-two-weeks-of-the-regular-season-and-its-going-to-cost-them-at-least-xxxxx-2012-10.
 Gregg Krupa, NHL lockout’s true cost is staggering, Detroit News, December 24, 2012, available at http://www.detroitnews.com/article/20121224/OPINION03/212240356.
 Steve Zipay, NHL, players return to bargaining, Newsday, January 2, 2013, available at http://www.newsday.com/sports/hockey/nhl-players-return-to-bargaining-1.4396453.
 Associated Press, NHL lockout costs Boston businesses millions, Boston Herald, December 27, 2012, available at http://www.bostonherald.com/business/business_markets/2012/12/nhl_lockout_costs_boston_businesses_millions.
 Staff, NHL lockout’s cost to Pittsburgh business: $2.2M a game, Pittsburgh Business Times, October 26, 2012, available at http://www.bizjournals.com/pittsburgh/blog/morning-edition/2012/10/nhl-lockouts-cost-to-pittsburgh.html.
 Robert Brodsky and Randi F. Marshall, Officials: NHL lockout could cost LI economy $60 million in revenue, Newsday, September 16, 2012, available at http://www.newsday.com/sports/hockey/officials-nhl-lockout-could-cost-li-economy-60-million-in-revenue-1.4008466.
 Lucas Sullivan, NHL lockout has tax cost, The Columbus Dispatch, December 23, 2012, available at http://www.dispatch.com/content/stories/local/2012/12/23/nhl-lockout-has-tax-cost.html.