NYU law professor Samuel Estreicher and JD candidate Alexander Gelfond discuss the Federal Trade Commission’s (FTC) proposed rule to ban all non-compete clauses in employment agreements, examining the agency’s four main justifications: that non-competes reduce workers’ wages, stifle new business and innovation, exploit workers, and are unnecessary for protecting trade secrets. While supportive of a limited ban on non-competes for workers without access to trade secrets, Professor Estreicher and Mr. Gelfond argue that the FTC needs to further justify its proposed nationwide ban, especially considering potential drawbacks like reduced worker training and lower investment in capital assets.
NYU Law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision striking down the use of racial preferences in college admissions at Harvard and the University of North Carolina, creating uncertainty about the future of affirmative action in both higher education and employment. Professor Estreicher points out that while the Court opposed the “outright racial balancing” used by the universities, it left room for race-based “make whole” remedies in cases of proven intentional discrimination, raising questions about the permissible extent of race-based remediation and its applicability in various contexts, including employment.
NYU Law Professor Samuel Estreicher comments on a recent decision by the Supreme Court of Illinois holding that the Illinois Biometric Information Privacy Act protections do not apply to union-represented workers because claims under the Privacy Act are preempted by Section 301 of the federal Labor Management Relations Act. Professor Estreicher argues that the court’s decision is in tension with the U.S. Supreme Court’s 1988 decision in Lingle v. Norge Div., Magic Chef, Inc., and its progeny, which provide that adjudication of an employer’s under the CBA does not generally trigger Section 301 preemption.
NYU Law professor Samuel Estreicher and 3L Zachary Garrett comment on a notice of proposed rulemaking by the Federal Trade Commission (FTC) that purports to ban non-compete clauses in employment agreements. Professor Estreicher and Mr. Garrett argue that the authority of the FTC to do so, based on its broad interpretation of Sections 5 and 6(g) of its authorizing statute, is dubious at best.
SMU Dedman School of Law professor Joanna L. Grossman comments on the Pregnant Workers Fairness Act, which Congress introduced for the first time in 2012 and which President Biden finally signed into law on December 29, 2022. Professor Grossman explains the gaps in pregnancy discrimination law, the need to better address the realities of pregnant workers, and the ways in which the new law will better meet their needs.
In this second of a two-part series of columns on the Supreme Court’s decision in Southwest Airlines v. Saxon, Barry Winograd describes some of the problems posed by the Court’s decision and reasoning. As Mr. Winograd explains, the opinion fails to clarify the governing standard, omits altogether any consideration of the applicable Railway Labor Act, creates confusion as to the classification of supervisors, and does not adequately consider the effects on the “gig” economy.
In this first of a two-part series of columns on the Supreme Court’s decision in Southwest Airlines v. Saxon, Barry Winograd summarizes the facts leading up to the case and the Court’s decision and reasoning. In particular, Mr. Winograd explains the two prior decisions addressing the FAA’s transportation worker exemption, Circuit City Stores, Inc. v. Adams, decided in 2001, concluding that the residual clause in Section 1 covers only transportation workers and not workers generally, and New Prime, Inc. v. Oliveira, applying the exception to an interstate truck driver classified as an independent contractor and not an employee.
NYU Law professor Samuel Estreicher and attorney Troy Kessler argue that the termination of workers for refusing to receive the COVID-19 vaccine often contravenes federal, state, and city laws. Professor Estreicher and Mr. Kessler point out that relevant law requires employers to carefully consider requests for religious or medical accommodations.
NYU Law professor Samuel Estreicher and 3L Ryan Amelio comment on the unusual move by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) decision to require employee vaccinations for employers with a total of 100 or more employees. Estreicher and Amelio explain why it is unclear whether the Agency has authority to mandate vaccinations and testing.
NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Susan Yorke discuss a decision by the U.S. Court of Appeals for the Ninth Circuit in which the appellate court reinstated California AB 51, which prohibits employers from conditioning employment on an applicant’s waiver of various rights, including the right to litigate. The authors note that the ruling creates a circuit split and may even be at odds with recent Supreme Court case law.
Elena J. Voss, associate general counsel at The Metropolitan Museum of Art, and NYU Law professor Samuel Estreicher, dissect an opinion by the Office of Legal Counsel that squarely answers in the negative the question whether the Emergency Use Authorization status of COVID-19 vaccines precludes public or private entities from mandating those vaccines. Ms. Voss and Professor Estreicher point out that while the OLC opinion is neither binding nor authoritative, it is well-reasoned and indicative of the Biden administration’s view on this topic and can provide some assurance to employers who wish to implement a vaccine mandate.
NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel describe the uncertainty surrounding whether Uber and Lyft drivers are subject to the Federal Arbitration Act. The authors note the split of authority across the nation and note that, depending on the outcome of litigation in the Second, Third, and Eleventh Circuits, the question may soon come before the U.S. Supreme Court to resolve.
NYU law professor Samuel Estreicher and Elena J. Voss, associate general counsel for the Metropolitan Museum of Art, provide a roadmap of how employers can ready their workplaces for post-pandemic life. Professor Estreicher and Ms. Voss describe the importance of employers determining their workplace vision, communicating that vision to employees, defining what a “flexible” workplace means, setting clear policies with definitive maximums and minimums.
NYU law professor Samuel Estreicher responds to an op-ed by Ron Holland criticizing the recent announcement of a members-only union of 300 Google workers. Professor Estreicher points out several errors and assumptions in Mr. Holland’s piece, and he argues that, in sum, there is no good public policy case for barring or restricting members-only unionism.
NYU law professor Samuel Estreicher and adjunct professor Zachary Fasman comment on two bills passed by the New York City Council that would mandate detailed and extensive labor protections for fast-food workers in New York City. Professors Estreicher and Fasman praise the intent behind the laws but explain why the City Council is not the place where binding agreements governing private workplaces in the City should be enacted.
SMU Dedman School of Law professor Joanna L. Grossman describes the myriad ways the Trump administration has harmed the interests of women and expresses hope that the outcome of the 2020 Presidential Election will mark the end of the GOP’s war on women. Grossman notes that if Biden and the Democrats win the White House and Congress, they will have not only the opportunity but the obligation to restore what the modern GOP has destroyed.
In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.
UNLV Boyd School of Law professor Leslie C. Griffin describes the legal landscape after the U.S. Supreme Court’s July 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, in which the Court took an expansive view of the ministerial exception. Griffin describes two recent decisions by U.S. Courts of Appeals ruling in favor of an employee and against a religious employer, demonstrating that ministers still have a chance (albeit a small one) of winning their antidiscrimination lawsuits.
NYU law professor Samuel Estreicher and rising 2L Christopher Ioannou discuss how New York workers’ compensation law might apply to workers infected with COVID-19. Estreicher and Ioannou argue that despite some shortcomings of the workers’ compensation system, we should not take for granted its ability to allow workers to quickly receive medical attention and some amount of lost wages.
SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake comment on the U.S. Supreme Court’s recent ruling that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. Grossman and Brake discuss the history of court decisions interpreting the meaning of “because of sex” under Title VII and describe the Supreme Court’s reasoning in Bostock v. Clayton County.