LAW & POLICY NOTE (November 2022)
In the union organizing campaigns of the 1930s, companies paid legions of spies to report everyone who attended a union meeting and what was said. Union meetings were held at night in pitch dark rooms so that no one could tell who else was there and who said what. Today, Starbucks needn’t hire spies. They just use subpoenas in civil litigation. In an outrageous decision, a judge in the Western District of New York let them get away with it. Starbucks issued a subpoena in the NLRB’s litigation to obtain an injunction under section 10(j) of the National Labor Relations Act against the company’s ongoing unfair labor practices against its workers in Buffalo and Rochester. Through the subpoena, Starbucks sought an enormous amount of confidential information about virtually every aspect of the entire nationwide Workers United campaign at every Starbucks across the country. In September 2022, the judge ordered the union and the workers to produce a staggering number of emails, text messages, and records of other communications in response to the subpoena. This Note explains why the court’s order is contrary to law. The matter is now on appeal in the Second Circuit, and if the court of appeals does not overturn the ruling, it will turn any enforcement action brought by the NLRB into a hunting license for companies to harass unions and workers.
A California law requiring rest and meal breaks for workers has become a fierce battleground between airlines and flight attendants that may soon draw in the US Supreme Court.
In most other pockets of the federal government, a public employee’s decision to lawyer up in the face of an internal investigation would be a no-brainer. But for Supreme Court clerks now being asked to cooperate with new steps in the court’s leak probe, such a move could upend the trajectories of their careers.
LAW & POLICY NOTE (July 2022)
The U.S. Supreme Court June 2022 decision in Viking River Cruises, Inc. v. Moriana held that the Federal Arbitration Act (FAA) does not preempt a rule of California law that invalidates contractual waivers of the right to assert representative claims under the California Private Attorneys General Act (PAGA) in any forum. However, in a portion of the majority opinion that four justices refused to join, the Court created confusion about whether plaintiffs subject to arbitration lose standing under state law to maintain representative PAGA claims in court. We explain why the majority’s view of PAGA standing in Viking River Cruises clashes with the California Supreme Court’s authoritative approach to PAGA standing, announced two years ago in Kim v. Reins International California, Inc. We conclude that California courts are not bound by the portion of Viking River Cruises that posits the loss of representative standing to litigate PAGA claims on behalf of other employees, and instead must follow Kim.
LAW & POLICY NOTE (June 2022)
California’s Assembly Bill (A.B.) 257, the Fast Food Accountability and Standards Recovery (FAST Recovery) Act, creates a partnership between fast food restaurant workers, their advocates, businesses, and state agency officials through a Fast Food Sector Council empowered to set labor standards specific to the industry. Regardless of whether the bill is signed into law, A.B. 257 will remain a consequential piece of legislation that serves as a template for improving labor standards in the fast food sector and in other low-wage industries. Analyzing the bill in print as of June 9, 2022, we propose model language that ensures the labor standards developed by the council cannot fall below existing state standards applicable to fast food workers and are fully enforceable under the Labor Code, and that strengthen the franchisor liability provisions of the bill.
On March 11, 2022, Amazon announced a new policy on freedom of association under international standards. Citing International Labor Organization and United Nations principles, Amazon pledged to comply with global norms on union organizing and collective bargaining, even when national labor law reflects a “gap in governance” with international standards. Published by the UC Berkeley Labor Center and CLAW, this report finds that Amazon’s freedom of association policy, on its face, is non-compliant with international labor standards, and Amazon management’s conduct before and after issuing the policy continues to violate international standards.