In Today’s News and Commentary, California passes legislation to protect workers where the NLRB fails to do so, a federal judge employs ChatGPT in a hostile workplace Title VII case, and advocates continue to file lawsuits challenging indiscriminate ICE arrests.

Earlier this week, Governor Newsom signed A.B. 288 into law, allowing California to follow New York’s lead in empowering state labor boards to defend workers’ rights to organize when the NLRB fails to do so. The law expands the Public Employment Relations Board’s (PERB) jurisdiction in order to “vindicate” the rights of workers who do not receive an effective response or remedy under the NLRA. Under certain conditions embedded in the statute’s six categories of workers, either a qualifying worker or a chosen representative may petition PERB to (1) certify a representative as the exclusive bargaining representative, (2) decide unfair labor practices that have been “ignored or excessively delayed by the [NLRB]”, and (3) require an employer to attend binding mediation. This is particularly important because the NLRB still lacks a quorum—though the Senate Committee on Health, Education, Labor and Pensions will vote on its nominees for the NLRB general counsel and two seats for the NLRB on October 9. Even so, the government shutdown plan calls for the furlough of 1,181 of the agency’s 1,195 employees and the impact of its moratorium on enforcing unfair labor practice and union representation cases will reverberate long after the government shutdown ends.

Meanwhile, the Sixth Circuit published an opinion reversing the United States District Court Middle District of Tennessee’s grant of summary judgment for the employer in Thomas Smith, et al v. P.A.M. Transport, Inc., a lawsuit brought by two Nashville-based Black truck drivers who alleged that their supervisors created a racially hostile work environment. The drivers claimed that they were required to work more hours than their non-African American colleagues for the same pay, and that their supervisors targeted them with racial epithets, such as “monkey” and “monkey a**,” which accompanied other forms of negative treatment that their counterparts did not experience. The district court granted summary judgment to P.A.M. transport on the ground that Plaintiffs failed to identify evidence of harassment “sufficient to sustain a viable” claim while concluding that the insults were not “plainly racist”  and one of the supervisors was “himself African American.” The opinion highlights the extensive history of these terms when directed at African Americans and cites to precedent in other circuits where the use of those terms “constitutes compelling evidence of racially hostile work environment.” In the concurrence, Judge Chad Readler looked to both Urban Dictionary and ChatGPT for guidance on the meaning of “monkey a**.” ChatGPT’s summary concludes, “Racial? Not inherently – but can be, depending on how and to whom it’s said.” ChatGPT and other AI tools are not immune to racial biases, which raises concerns about its application in this setting.

Lastly, lawsuits continue to proliferate in response to what Drexel University law professor Anil Kalhan and Civil Rights Lawyer Sherrilyn Ifill have labelled “Kavanaugh stops.” As Gurtaran reported last month, the Supreme Court granted a stay in Noem v. Vasquez Perdomo, allowing ICE agents to continue detaining people based on their presence at a particular location, their occupation, their race or ethnicity, and their accent while speaking English or Spanish. In his concurrence, Justice Kavanaugh wrote “The Government sometimes makes brief investigative stops to check the immigration status. . . [i]f the officers learn that the individual they stopped is a U.S. citizen or otherwise here lawfully in the United States, they promptly let the individual go.” Two new lawsuits suggest otherwise. A new class-action lawsuit filed on September 25 (Escobar Molina v. Dep’t of Homeland Security) challenges ICE’s warrantless immigration arrests in the District of Columbia. The lead Plaintiff is a Latino man with Temporary Protected Status who has been in the United States legally for 24 years and was grabbed by plainclothes federal agents who did not ask about his status. He was detained overnight and only released once a supervisor realized he had been illegally arrested. Another class-action lawsuit filed on September 29 (Garcia Venegas v. U.S. Dep’t of Homeland Security) challenges workplace raids targeting industries with large immigrant workforces. The complaint alleges ICE agents repeatedly enter construction sites in Alabama without warrants seemingly because they saw Latino workers. The lead Plaintiff works in construction and is a U.S. citizen born in Florida to Mexican national parents. He was wrestled to the ground and detained despite showing his REAL ID to officers not once, but twice, in the span of weeks.