News & Commentary

February 23, 2022

Jason Vazquez

Jason Vazquez is a student at Harvard Law School.

On Tuesday, the United States Women’s National Soccer team—the reigning world champions—reached a $24 million settlement with the U.S. Soccer Federation, the official governing body of soccer in the United States and the employer of both the women and men’s national soccer teams, to resolve the class action lawsuit that the players filed against the Federation in March 2019, which alleged violations of the Equal Pay Act (EPA) (29 U.S.C. § 206(d)(1)) and Title VII of the Civil Rights Act (CRA) (42 U.S.C. § 2000).

This story officially began nearly six years ago, in March 2016, when five star players from the women’s national team filed a complaint alleging pay discrimination with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with administering both the EPA and the CRA, along with several other federal workplace statutes. The players withdrew their administrative complaint in 2019 and then filed a federal lawsuit against U.S. Soccer in the United States District Court for the Central District of California, the case of Alex Morgan et al. v. U.S. Soccer Federation, Inc., which was certified as a class consisting of all players on the women’s national team. In May 2020, the District Judge dismissed the case, granting summary judgment to defendant U.S. Soccer on the equal pay count on the grounds that “the statements offered by Plaintiffs are insufficient to establish a genuine dispute that WNT players are paid at a rate less than the rate paid to MNT players.” The players appealed the decision to the Ninth Circuit, and Tuesday’s settlement, which includes millions of dollars in backpay for dozens of players and a pledge from U.S. Soccer to equalize pay, came less than two weeks before that appellate hearing was slated to begin, and appears to represent the culmination of this saga.

The settlement is contingent, however, upon ratification of a new collective bargaining agreement between USWNTPA, the players’ union that represents the women on the U.S. national team, and U.S. Soccer, which is currently being negotiated. In any event, USWNTPA congratulated the players for their “historic success in fighting decades of discrimination,” and affirmed its commitment to securing “a new collective bargaining agreement that will, finally, provide equal pay for the women’s national team players.”

Though the historic re-run union election at the Amazon packaging facility in Bessemer, Alabama began fewer than three weeks ago, the Retail, Wholesale, and Department Store Union (RWDSU)—the union seeking to represent the Amazon workers in Bessemer—announced on Tuesday that it has already filed three Unfair Labor Practice charges against the e-commerce conglomerate with the National Labor Relations Board (NLRB) for misconduct that the company has allegedly engaged in during the re-run election. Specifically, the three ULPs charge that Amazon: (1) removed union literature from employee breakrooms; (2) issued a new company rule limiting employee access to the facility before and after workshifts; and (3) forced workers to attend so-called “captive audience meetings,” in which an employer requires workers, in the midst of a union election and upon threat of termination, to endure anti-union propaganda during work hours—all conduct that the union alleges violates §§ 8(a)(1) and/or 8(a)(3) of the National Labor Relations Act (NLRA) as well as, with respect to the first charge, the terms of the settlement that the union negotiated with Amazon before the re-run election.

From the perspective of one with an interest in labor law, the third ULP charge is particularly intriguing—though at first glance an allegation that a captive audience meeting constitutes a ULP may appear to be, in light of NLRB precedent, obviously doomed, there’s more to the story here. Captive audience meetings, today a staple of employers’ vigorous anti-union campaigns, are nowhere expressly authorized in the NLRA, and the Board initially proscribed these coercive practices in Clark Bros., Co., Inc., explaining that an employer’s exercising “its superior economic power in coercing its employees to listen to speech relating to their organization activities” violates § 8(a)(1) of the NLRA (at the time § 8(1)). Two years later, however, shortly after the passage of the restrictive Taft-Hartley Amendments to the NLRA, the Board repudiated the Clark Bros holding in the case of In re Babcock & Wilcox, and in 1953, in the case of In re Peerless Plywood, the Board expressly affirmed that employers may force their workers to attend captive audience meetings. The upshot is that captive audience meetings today are legally permitted under the NLRA only as a matter of Board interpretation and precedent, and RWDSU is expressly seeking to challenge this caselaw before the current Board, recognizing that General Counsel Jennifer Abruzzo committed her office to combatting captive audience meetings in her stunning remedies memo released last September.

Relatedly, in the latest on the “Starbucks unionization wildfire” blazing across the nation, Starbucks employees in Phoenix, Arizona, who launched their unionization drive last month, recently alleged in a ULP complaint filed with the Labor Board that store management has “interfered with, restrained, and coerced employees in the exercise of rights protected by Section 7 of the Act” by improperly surveilling, disciplining, and discriminating against union supporters. These ULP allegations certainly aren’t the first to be brought against the coffee giant in recent weeks—as Kevin noted over the weekend, labor organizing campaigns have now been initiated in more than 100 Starbucks locations throughout the country, and the coffee giant has responded in predictable fashion, by shelling out gobs of cash to anti-union law firms and  committing numerous flagrant violations of the labor law.

Finally, as Tascha explained a couple weeks ago, both chambers of Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (S. 2342 and H.R. 4445) earlier this month, which amends the Federal Arbitration Act (FAA) (9 U.S.C.) to invalidate predispute arbitration agreements covering claims of sexual assault or sexual harassment, permitting plaintiffs in such cases to seek relief from an Article III judge and a jury. An article published yesterday in The Hill celebrated the passage of the aforementioned statute, but called upon Congress to go one step further and enact the Forced Arbitration Injustice Repeal (FAIR) Act (H.R. 1423), which aims to broadly void arbitration agreements imposed upon workers. The article notes that, under the Supreme Court’s expansive interpretation of the applicability of the FAA to employment contracts, many plaintiffs bringing actions alleging wage theft and racial discrimination are unable to escape the adhesive arbitration agreements to which workers are routinely required to assent as a condition of employment, which disproportionately harm historically marginalized communities, including low-income workers generally and women and people of color specifically. It’s always encouraging to see strong advocacy for the interests of working people in major media publications. 

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