News & Commentary

February 27, 2020

Maxwell Ulin

Maxwell Ulin is a student at Harvard Law School.


Yesterday, the National Labor Relations Board formally published a final rule revising the established test of joint-employer liability for labor violations.  As Jared explained on Tuesday, the new rule replaces an Obama-era decision that allowed the board to consider businesses’ indirect or reserved control over workers as an independent basis for liability—as opposed to merely weighing joint employers’ “direct and immediate” control over employees.  On top of repealing the previous decision, however, the revised test introduces a substantiality requirement that appears to narrow to scope of liability even further.  The new rule is expected to make it significantly harder to hold contractor- and franchise-based businesses like McDonald’s accountable for common labor violations like retaliatory discharge for union organizing.  Millions of American workers are likely to be affected by the decision, with the Economic Policy Institute projecting around $1.3 billion in lost wages annually as a result.  Wasting no time, 17 states and D.C. are already challenging the rule in court.

Chipotle is again in the employment law headlines after illegally firing a worker in New York City for taking advantage of the Big Apple’s paid sick day ordinance.  Under city law, businesses with five or more employees working over 80 hours a year must provide paid “safe and sick” leave, which affords time for covered workers to care for themselves and their families or seek help if they or a relative becomes a victim of domestic violence or another offense.  Under a settlement announced yesterday by the city, Chipotle has agreed to reinstate the employee and provide her with backpay and $2,500 in restitution.  “New York City is on the side of working people,” Mayor Bill de Blasio said in a city press release. “Paid Safe and Sick Leave is the law of the land, and we will continue to hold corporations accountable.” City officials are expanding their inquiry to probe other Chipotles across Manhattan for similar violations, and at least 11 more workers plan to file paid sick leave complaints, according to SEIU 32BJ.  The fast-food chain also faces an administrative lawsuit filed in September for failing to comply with New York’s fair scheduling law.

Finally, spring break in Saint Paul may come early this year, as local educators filed a notice yesterday to strike beginning on March 10 in the absence of a new collective bargaining agreement with the school district. The St. Paul Federal of Educators Local 28, representing around 3,600 public school educators, is seeking to secure more foreign language, mental health, and special education staff across the school district, as well as a pay hike of 3.4% and 2% in 2021 and 2022, respectively.  The district has countered with a more modest salary bump and a $1.2 million investment in increased support staff for schools.  Mediation talks resume Friday, but with about $42 million separating the two proposals, the likelihood of a deal before March 10 is growing increasingly remote.  A strike in St. Paul would mark the first major teachers’ union action since the end of the eleven-day Chicago teachers’ strike last fall.  Nearly all prekindergarten through 12th grade classes would be cancelled in the event of a walkout, with over 20 locations continuing to provide breakfast and lunch for students below 18.  To students’ undoubted dismay, however, district leaders note that the school year will likely be changed or extended to account for lost time after the strike.

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