Analysis and Commentary on Employment Law
Second Circuit Rebuffs Starbucks Strategy of Seeking Rank-and-File Employee Discovery in Labor Law Injunction Proceeding

NYU Law professor Samuel Estreicher and Peter Rawlings, J.D., discuss the Second Circuit’s recent decision in Leslie v. Starbucks Corp., in which the court vacated a district court’s approval of broad subpoenas served by Starbucks on its employees in a proceeding for temporary injunctive relief under Section 10(j) of the National Labor Relations Act. Professor Estreicher and Mr. Rawlings argue that the Second Circuit’s emphasis on the need for discovery requests to be proportional to the limited inquiry in 10(j) proceedings, as well as its recognition of employees’ confidentiality interests in union organizing activities, may influence how courts evaluate such employer requests in future 10(j) litigation, particularly if the Supreme Court adopts a more stringent standard for granting 10(j) relief in the pending Starbucks v. McKinney case.

Implementation of the Pregnant Workers Fairness Act: Final(ly) Regulations

Stanford Law visiting professor Joanna L. Grossman discusses the recently enacted Pregnant Workers Fairness Act (PWFA) and its accompanying regulations from the Equal Employment Opportunity Commission (EEOC), which provide protections and reasonable accommodations for pregnant workers. Professor Grossman explains key aspects of the new law and regulations, emphasizing that they will help countless workers maintain their jobs during pregnancy and childbirth while also combating stereotypes about women's labor force attachments and ultimately benefiting both employees and employers.

SEC Expands Employer Cutbacks in Compensation for Erroneous Compensation Awards

NYU Law professor Samuel Estreicher and 2L Samuel Ball discuss the SEC’s new Rule 10D-1, which requires securities exchanges to mandate that listed companies adopt policies to recover erroneously awarded executive compensation in the event of an accounting restatement. Professor Estreicher and Mr. Ball explain how the new rule expands the scope of clawbacks compared to previous regulations and shifts the responsibility for implementing them from the SEC to the companies themselves, with the goal of improving compliance and avoiding potential legal challenges.

The FTC’s Initial Policy Case for Banning All Non-Compete Clauses in Employment Agreements

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.

Future of Affirmative Action in Employment Decisions

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.

Illinois High Court Holds State Privacy Act Claims Are Preempted in Union-Represented Firms

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.

FTC Authority to Ban Non-compete Clauses in Employment Agreements?

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.

The Pregnant Workers Fairness Act: A Long-Awaited Victory for Pregnant Workers

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.

Clear Skies or Stormy Weather? The FAA’s Transportation Worker Exception After Southwest Airlines v. SaxonPart Two of a Two-Part Series

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.

Clear Skies or Stormy Weather? The FAA’s Transportation Worker Exception After Southwest Airlines v. SaxonPart One of a Two-Part Series

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.

Employers Should Reconsider Plans to Discharge Employees for Refusing the COVID-19 Vaccine

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.

Substantial Questions of Statutory Authority Confront OSHA’s COVID-19 Vaccination Emergency Temporary Standard

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.

Chamber of Commerce v. Bonta: A Temporary Reprieve for California AB 51, Which Prohibits Conditioning Employment on the Waiver of the Right To Litigate?

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.

The Justice Department’s OLC Thinks Your Company Can Mandate the COVID-19 Vaccine, Even If Not Fully Approved

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.

Are Rideshare Drivers Like Uber’s and Lyft’s Subject to the Federal Arbitration Act?

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.

The Post-Pandemic Workplace

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.

Members-Only Unionism is Lawful and Can Make Sense

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.

NYC’s Mandatory Collective Bargaining Agreements in Fast-Food Shops?

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.

Election Day 2020: A Good Day to End the GOP’s War on Women

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 Ruth We Trust: How the Pregnant Workers Fairness Act Can Promote Women’s Equal Citizenship and Justice Ginsburg’s Legacy

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.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more