News & Commentary

November 17, 2022

Miriam Shestack

Miriam Shestack is a student at Harvard Law School.

In today’s News and Commentary: Red Cup Day strikes at Starbucks, the House passes a bill nullifying gag orders around workplace sexual harassment, workers at a St. Louis Apple Store move to unionize, New York City proposes higher wages for delivery app workers, an impending SCOTUS decision that will determine next steps in cases against meatpacking companies by families of workers who died of COVID-19, and Missouri doubles down on subminimum wages for disabled workers.

Workers at over 100 Starbucks locations across the country are going on strike today. The #redcuprebellion was planned to coincide with the coffee chain’s “Red Cup Day” kickoff to the holiday season. Starbucks Workers United reports that this is the largest coordinated action of the Starbucks Union movement yet. View a map of picket locations here.

The House passed a bill that would nullify some nondisclosure agreements when employees allege sexual harassment or assault on Wednesday. The Speak Out Act (S. 4524) passed with a 315-109 vote after passing the Senate by unanimous consent in September. The bill now heads to President Biden for signature just months after Congress passed the “#MeToo bill” (H.R. 4445) banning mandatory arbitration for workplace sexual harassment and assault claims, making it easier for victims to pursue lawsuits in court. This legislation covers a narrow scope of nondisclosure agreements, also known as “gag orders,” that are signed before misconduct takes place. However, the bill does not invalidate NDAs signed after a worker and company have already reached a settlement over harassment or assault charges. Lift Our Voices, a policy group headed by former Fox News anchor Gretchen Carlson, negotiated the terms of the bill for months with lawmakers to attract a wide bipartisan consensus, Bloomberg reports.

The International Association of Machinists filed a petition Wednesday with the US National Labor Relations Board, seeking to represent around 80 employees at the Missouri site. The St. Louis workers are seeking to make their store the third among Apple’s roughly 272 US locations to unionize, following successful organizing campaigns by the Machinists in Maryland in June and by the Communications Workers of America, last month in Oklahoma. Employees have said that workers at dozens of stores are discussing similar moves, Bloomberg reports. If the NLRB holds an election and workers vote to unionize, the company would be legally obligated to negotiate over working conditions at the store. The Machinists also filed a separate claim against Apple Wednesday with the NLRB, accusing the company of violating federal law by holding mandatory anti-union meetings, threatening retaliation and telling staff that organizing would be futile.

New York City’s Department of Consumer and Worker Protection published a notice on Wednesday morning proposing that app-based food delivery workers should be paid at least $23.82 per hour, plus tips, by 2025. THE CITY explains that the highly anticipated pay scale is mandated by a 2021 local law that requires a minimum wage for workers using apps such as DoorDash and Uber Eats. Under the current proposal, the pay minimum would start $17.87 on Jan. 1, 2023, and increase to $23.82 by April 1, 2025. The new pay scale is likely to face legal challenges from delivery platforms. The is scheduled for public hearing on December 16.

The US Supreme Court’s decision to take up or reject Tyson Foods Inc.’s appeals of two Covid-19 worker death liability cases will affect more than a dozen similar cases involving meat processors that are now with federal courts. Analysis from Bloomberg explains that a common thread among all the cases is whether federal courts should treat the meat processors as quasi-federal entities and therefore possibly exempt from death liability claims, or instead as private companies and thus required to fight the lawsuits in state courts where the cases were originally filed. Attorneys representing the families of workers challenged the move to federal court, preferring that the liability cases remain in state courts where there is greater likelihood of a favorable finding for plaintiffs.

Tyson and other meat packing companies have argued that they are entitled to remove the cases to federal court under a law known as the federal officer removal statute. The law allows state-law claims to be heard in federal court when the defendant “was acting under the direction of a federal officer.” While former President Donald Trump did issue an executive order directing meat plants to remain open on April 28, 2020, all of the conduct at issue in the lawsuits took place earlier. So far, appeals courts have ruled against meat packing companies.

Lastly, a recently published investigation by The Kansas City Beacon and ProPublica found that, as of June 30, the vast majority of the more than 5,000 disabled adults employed at Missouri’s 97 sheltered workshop locations have been there for years in spite of their ostensible goal of helping disabled workers find employment in the wider community. Sheltered workshops are legally permitted to pay workers less than the minimum wage. The investigation found that nearly 45% of the employees have worked at the facilities for at least a decade, and 20% have been there for two decades. On average, Missouri’s sheltered workshop employees earn less than $4 an hour, according to the Beacon-ProPublica analysis of federal Department of Labor wage data for more than 3,000 employees. Missouri is an outlier: At least 14 states have adopted laws or policies that completely phase out sheltered workshops or subminimum wages. Currently, the U.S. Department of Labor is the only agency empowered to issue certificates that allow the facilities to pay below the minimum wage. Amid calls to eliminate subminimum wages at the federal level, Missouri lawmakers passed a measure in July 2021 to develop the state’s own system of issuing the certificates, in case the federal government stops issuing them.

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