News & Commentary

January 17, 2023

Travis Lavenski

Travis Lavenski is a student at Harvard Law School.

In today’s news & commentary, the Biden administration seeks to revive pro-labor OSHA rule; the Third Circuit is set to hear a case this week pertaining to the employment status of student athletes; and workers at popular Peet’s Coffee chain have filed for a union election.

OSHA is set to propose a revival of the “Fairfax Memo,” a 2013 policy which allowed union affiliates and community representatives to represent employees during OSHA health and safety inspections at non-union shops upon employee authorization, Bloomberg reports. The Trump administration withdrew the Fairfax Memo in 2017. This new proposed rule would also clarify the role of union officials during OSHA inspections of union shops, seeking to avoid the delays that sometimes occur under the current regime when an employer challenges a union’s designated worker representative. Employers bitterly opposed the Fairfax memo when it was in place, viewing it as a way for union officials to get in contact with their employees in hopes to convince them to unionize. The new rule, if enacted, will likely face legal challenge by conservative legal groups.

The Third Circuit is set to hear a case tomorrow with potentially major implications for labor relations in collegiate sports. The case, Johnson v. NCAA, presents the court with the question of whether students can possibly be interpreted as employees under the Fair Labor Standards Act solely for their participation in collegiate sports. If the court determines that students could possibly be considered employees, the case will be remanded to the district court to determine if student athletes are in fact employees under the Act. Two other circuits have answered that student athletes are not employees under the FLSA, meaning that a ruling for the student athletes would result in a circuit split, increasing the odds that the Supreme Court will take up the issue. Those cases were decided before the Supreme Court expressed skepticism of the NCAA’s current student athlete compensation model in NCAA v. Alston. If student athletes are considered employees, players would gain minimum wage, workplace protections, and potential bargaining rights, effectively ending the amateurism model that has prevailed since the NCAA’s founding.

Workers at a Peet’s Coffee & Tea store in Davis, California are set to vote on whether to unionize this week. Peet’s, which boasts over 330 domestic locations, does not currently have any unionized stores. Workers have complained of low pay, a broken scheduling process, and lack of recourse for customer misconduct, among other things. Initially, two stores in Davis filed with the Board to unionize, but one of the stores withdrew its petition. Notably, Peet’s workers were directly inspired by the Starbucks union push, organizing with Workers United-SEIU and following a similar model. “I feel like we’re in a very fortunate position where we have watched [Starbucks Workers United] go before us, and they laid out the steps. Now, we can follow in their footsteps,” a shift lead at the Peet’s location said in a statement. If the union push is successful, Peet’s would one of a plethora of coffee chains that have been organized in the last several years, including Starbucks, Collectivo, SPoT, and more.

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