Employee Rights Briefing
March 2018
News From The Institute
NELA Institute Interim Executive Director Terry O’Neill Highlights Connection Between Sexual Harassment And Forced Arbitration 
In a Law360.com Op-Ed published on February 20 entitled, “ Success For #MeToo Means Reopening The Courthouse Doors,” NELA Institute Executive Director Terry O’Neill explained why the goal of ending sexual harassment at work necessitates ending forced arbitration in the American workplace.  
NELA Institute Board Member Imre Szalai Champions Ending Forced Arbitration In Employment Contracts
Last year, NELA Institute board member and Loyola Law Professor Imre Szalai published a report finding 80 percent of America’s wealthiest, most powerful companies use arbitration provisions in their employment contracts, nearly half of which ban employees from engaging in class and collective actions.

On February 9, Gizmodo’s Melanie Ehrenkranz highlighted the report in “ Silicon Valley Needs To Ban Forced-Arbitration Agreements. We Asked 10 Tech Companies If They Will.” Eherenkranz’s article came on the heels of The Economist’s January 28 forced arbitration expose, “ Kept Out of the Courthouse: When You Cannot Sue Your Employer,” in which Prof. Szalai explains that “arbitration is ill-suited to employment disputes.” 
In The News
On February 1, Bloomberg Law reporter Ben Penn exposed a Labor Department scheme to hide data disfavoring their proposed tip-pooling rule in “ Labor Dept. Ditches Data Showing Bosses Could Skim Waiters’ Tips .”
University of Michigan and Harvard Law Professor Catherine A. MacKinnon opined on Feb. 4 in The New York Times that #MeToo Has Done What The Law Could Not .
On February 9, National Labor Relations Board (NLRB) inspector general David Berry sent a report to the board saying NLRB member Bill Emanuel wrongly partook in deciding Hy-Brand Industrial Contractors, a recent case that overruled the controversial joint-employer standard articulated in Browning-Ferris Industries (BFI). Because of the ethics official’s determination, the Board vacated the Hy-Brand decision on Feb. 26, leaving the BFI joint-employer standard in place.
In response to a new rule proposed by the U.S. Department of Labor that would allow employers who pay their tipped employees at least the full federal minimum wage to redistribute customer tips to non-tipped employees, the National Employment Law Project and ROC United co-authored a report demonstrating that over half of server and bartender wages come from tips. The Economic Policy Institute released a report showing that women would lose $4.6 billion in earned tips if the administration’s “tip stealing” rule is finalized .
In addition to The Institute’s above-mentioned press, forced arbitration has been in the spotlight this month across multiple publications, including the University of Chicago Legal Forum’s “ Disrupting Work Law: Arbitration in the Gig Economy,” The Economist’s “ Shut Out By The Small Print: The Problem With The Craze For Mandatory Arbitration,”   Reuters’ “ When Corporations Silence Employees Via Arbitration, Shareholders Lose,” and The L.A. Times’ “ Dealing With Harassment? Discrimination? Wage Theft? Good Luck Getting Justice with Mandatory Arbitration.” 
On February 12, all 56 of America’s Attorneys General signed a letter urging Congress to enact legislation to end forced arbitration of workplace sexual harassment claims. On February 27, Rep. Cheri Bustos called for support of legislation that would do just that in an Op-Ed in The Hill entitled, “ Speaker Ryan, You Have The Power To Help End Sexual Harassment In The Workplace.”
The NLRB issued 20 new advice memos on a variety of topics including “paid time off” deductions for striking workers, employer-promulgated social media policies that violate the National Labor Relations Act, and whether the Trump Campaign unlawfully required employees to sign mandatory arbitration and non-disclosure clauses.
Politico journalist Marianne Levine completed a nine-month investigation into wage and hour law enforcement, and on February 18 shared her findings in, “ Behind the Minimum Wage Fight, A Sweeping Failure to Enforce the Law.” 
In “ Strong Employers and Weak Employees: How Does Employer Concentration Affect Wages?,” researchers for The National Bureau of Economic Research  found a strong correlation between cities and towns with little industrial diversity, among other things, and decades-long trends of locally-depressed wage rates. 
NPR’s Morning Edition commemorated the 50th anniversary of the Kerner Report and shared details of a new study that builds on the Kerner Commission’s work in their February 27 segment, “ Report Updates Landmark 1968 Racism Study, Finds More Poverty and Segregation.”
Workers Rights By The Numbers
The total number of major work stoppages involving 1,000 or more strikers in the year 2017. ( Bloomberg
The percentage of prime working-age women who did not work in the year 2016.

The number of public comments submitted to the Department of Labor, mostly in opposition to a proposed rule that would allow employers to control the distribution of tips earned by workers. ( Federal Register )
In The Courts
On February 23, in Muro v. Cornerstone Staffing Solutions, Inc., the California Court of Appeals affirmed a lower court decision finding that an arbitration clause containing a class waiver inserted into a contract governing a truck driver’s employment was unenforceable under the Federal Arbitration Act and California law. 
An en banc panel of the U.S. Court of Appeals for the Second Circuit, on February 26, held in Zarda v. Altitude Express, Inc. that discrimination based on sexual orientation constitutes sex discrimination, and therefore violates Title VII of the Civil Rights Act. 
On February 26, the U.S. Supreme Court heard oral arguments in Janus v. American Federation of State, County, and Municipal Employees, Council 31, a case challenging a public-sector union’s ability to collect “fair share fees” from non-members whose interests the organization is required by law to represent. 
The U.S. Supreme Court recently granted certiorari in New Prime v. Oliveira , a case concerning the interpretation of delegation provisions in arbitration clauses involving transportation workers, and addressing whether the Federal Arbitration Act applies to transportation workers who are classified by an employer as independent contractors, not employees.
The Employee Rights Briefing is a monthly newsletter designed to help keep you up-to-date on breaking news and emerging trends impacting America's workers. From the growth of forced arbitration of employment disputes, to employee misclassification, to stories of wage theft and workplace discrimination, the Employee Rights Briefing reports on employment law and policy developments from the federal government to state legislatures to the courtroom and everywhere in between. Our goal is to provide you with a digestible snapshot of the events shaping employment law and policy, so that you can be kept abreast of the most important issues facing today's workers.
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