NLRB levels Complaint Against USC, Pac-12, and NCAA, bringing a multibillion-dollar enterprise one step close to unionization.
Last week, the National Labor Relations Board (NLRB) alleged in a complaint that the University of Southern California (USC), the Pac-12, and the National Collegiate Athletics Associations (NCAA) are joint employers and willfully misclassify their football players, men’s basketball players, and women’s basketball players as “non-employee student athletes” to discourage them from engaging in protected activities such as unionization. The complaint calls for USC, the Pac-12, and the NCAA to reclassify those athletes as “employees” in their handbooks and rules.
The employment-status of college athletes is the most pressing issue facing the world of college sports and threatens to upend the foundation of the multibillion-dollar industry. For decades, the NCAA has argued that amateurism - a model in which college athletes get 0% of the revenue generated by their sports – was necessary to maintain the value and integrity of college athletics.
However, as coaching salaries have ballooned and TV deals for college sports approach nearly $10 billion, the amateurism model is increasingly seen as exploitative and has come under increasing scrutiny, leading some experts to expect the model to collapse under mounting pressure in federal courts and state legislatures.
If the NCAA’s amateurism model were to collapse, whether due to the aforementioned pressures or NLRB complaints, the repercussions would be monumental, prompting questions of how to compensate over 500,000 NCAA athletes, 85% of which live below the poverty line.
According to the NLRB’s complaint, a hearing on their case is scheduled for November 7, 2023, in Los Angeles.
Bloomberg Article on Landmark California Supreme Court Case Features Commentary from Lauren Teukolsky
Lauren Teukolsky was quoted in a Bloomberg Law article outlining the issues at stake in Adoph v. Uber Technologies, a closely watched California Supreme Court case set for oral arguments on Tuesday, May 9 at 9:00 a.m. Pacific Time.
The question at the heart of Adolph v. Uber is whether an employee can continue litigating PAGA claims on behalf of her coworkers once the individual component of her PAGA claim has been sent to arbitration, a private, quasi-court forum that is favored by employers.
If the Court rules that such plaintiffs maintain their standing, it would allow employees to continue holding employers accountable for company-wide violations of the Labor Code under the Private Attorneys General Act ("PAGA"), a state law that authorizes employees to collect civil penalties for violations against themselves and their coworkers on behalf of California’s Labor Commissioner, which has struggled to keep up with a backlog of cases for the past several decades.
The Bloomberg article features Ms. Teukolsky’s predictions for how the Supreme Court will likely rule:
“’I would be very surprised if the California Supreme Court chose to eviscerate the PAGA statute,’ said Lauren Teukolsky, founder of Teukolsky Law in Pasadena, Calif.
‘And if they agree with Uber’s position, PAGA would be eviscerated because companies would be able to send individual PAGA claims to arbitration and have the remainder of the PAGA claims, the claims on behalf of others, dismissed,” Teukolsky said. “It is entirely contrary to the stated purpose of PAGA, which is to encourage private attorneys to augment the state’s ability to enforce the labor code.’”
A decision in Adolph v. Uber is expected by August 2023. Oral arguments, which will be held remotely, are scheduled for Tuesday, May 9 at 9:00 a.m. and can be watched via the Supreme Court’s website.
Lauren Teukolsky to Discuss Hot Topics in Employment Settlement Agreements for Labor and Employment Relations Panel
On April 26, 2023, Lauren Teukolsky will discuss hot topics in employment settlement agreements for a program put on by the Southern California Labor and Employment Relations Association (SoCal LERA). Ms. Teukolsky will be joined by fellow panelists Jonathan Judge, a partner at Atkinson, Andelson, Loya, Ruud & Romo, and Jade M. Brewster, an associate at Jackson Lewis. The panel will be moderated by Angela J. Reddock-Wright, a mediator at Signature Resolution.
The webinar’s focus will be confidentiality and non-disparagement provisions in settlements and separation agreements, a subject that has taken on increased complexity in light of the recent McLaren Macomb decision from the National Labor Relations Board.
Ms. Teukolsky’s commentary on the decision was recently featured in an article by Law360. Ms. Teukolsky has also written about employment settlement agreements for Advocate Magazine.
SoCal LERA is a regional chapter of the Labor and Employment Relations Association, an organization where Human Resources professions and attorneys from both sides of the aisle share ideas and learn about new developments and practices in the field.
To sign up for the webinar, click here. To learn more about Ms. Teukolsky and her practice, click here. If you’re an employee and believe you’re being treated unlawfully, click here to get in touch with our office.
Lauren Teukolsky Quoted in Law360 article on the Future of NDAs in Severance Agreements
Lauren Teukolsky’s commentary was featured this week in a Law360 article discussing the future of non-disclosure agreements (NDAs) in severance agreements in light of the National Labor Relations Board’s recent ruling in McLaren Macomb. In McLaren Macomb, the NLRB found that offering severance agreements to employees that include NDAs and non-disparagement clauses is unlawful because doing so dissuades them from engaging in employee activity that is protected by Section 7 of the National Labor Relations Act, such as discussing their working conditions or pay.
Following the NLRB’s decision, however, some attorneys have expressed skepticism that employers will tailor their severance agreements to comply with the NLRB’s ruling. Ms. Teukolsky discussed her own experience with severance agreements in California following the state’s implementation of laws to restrict the use of NDAs and non-disparagement:
“’After California passed its own restrictions, what I'm seeing is employers will continue to include very broad nondisparagement provisions, and then they'll have a carveout’ stating that nothing in the agreement is intended to violate the law, Teukolsky said. ‘And when I come back and say, 'This nondisparagement is too broad,' they say, 'Well, we have a carveout.’'"
The NLRB decision, along with the General Counsel’s memo about the decision, suggest that carveouts are not sufficient to overcome the chilling effect of NDAs and non-disparagement provisions. The memo states: “It is critical to remember that public statements by employees about the workplace are central to the exercise of employees’ rights under the Act.”
The McLaren Macomb decision is a victory for workers that should be celebrated. Employers act at their peril if they continue to include overly-broad NDAs and non-disparagement provisions in any contract they ask an employee to sign, whether it be an employment agreement signed on hire, a severance agreement offered to a laid-off employee, or a settlement agreement to settle claims that have been filed.
To read the article in its entirety, click here. If you have questions about a severance agreement you’ve received and want to get in touch with our office, click here.
Lauren Teukolsky expressed support for President Biden’s nominee for Labor Secretary, Julie Su, in a recent Law360 article exploring business groups’ opposition to the President’s pick.
Su was nominated to replace former Labor Department Secretary Marty Walsh, who left his post in March to take over as head of the National Hockey League (NHL) Players’ Association. Su served as Deputy Labor Secretary prior to Walsh’s departure and has worked as the acting secretary of the Labor Department since Walsh’s announcement.
If confirmed by the U.S. Senate, Su is expected to continue the pro-union and pro-worker stance the department has taken since the start of the Biden administration, much to the distress of some business groups.
Business groups have cited Su’s backing of A.B. 5, a 2020 California bill that extended employee classification status to some gig workers, as one of the primary reasons for their opposition. In the Law360 article Ms. Teukolsky argues the business groups’ blame may be misplaced:
“‘The California Legislature passed A.B. 5,’ she said. ‘It's not like Julie Su single-handedly implemented the law.’”
Ms. Teukolsky, who worked with Su in the late 1990s on California's A.B. 633, which installed wage protections for garment workers, also had this to say on Su’s nomination:
“’I don't think there's any doubt that Julie Su is eminently qualified to be the next secretary of labor,’ Teukolsky said. ‘California has the fifth-largest economy in the world, so I think any criticism that Julie Su's policies or practices somehow undermine the strength of California's economy is absurd.’”
Ms. Teukolsky was previously asked to provide her thoughts on Su in a February Law360 article on her nomination. For that article, click here. For Law360’s recent article on Su’s nomination, click here.
Finally, if you’d like to get in touch with our office, click here.
Lauren Teukolsky’s commentary was featured in a recent Law360 article on the Ninth Circuit’s recent ruling that California’s A.B. 51 is preempted by federal law. AB 51 prohibited employers from forcing employees to give up their civil rights, such as the right to a jury trial and the right to appeal an adverse decision, as a condition of employment. The ruling, a reversal of the Ninth Circuit’s own prior decision in 2021, is a significant blow to the state’s workers.
California Governor Gavin Newsom signed A.B. 51 into law in 2019, making it illegal for employers to force individuals to waive their right to bring civil rights cases in court as a condition of employment. Arbitration agreements typically stipulate that all claims made by workers—regardless of their severity—must be resolved under private arbitration, a process that overwhelmingly favors employers, disproportionately harms historically marginalized communities, and shields corporations from public scrutiny and accountability. A.B. 51 was meant to ensure that employees were not coerced into signing away their rights, and that all waivers of these significant rights were voluntary.
Last year, a three judge Ninth Circuit panel voted to revisit a 2021 decision in which it partially reversed an injunction that stopped California from enforcing A.B. 51. Last month, the panel found that the Federal Arbitration Act preempted A.B. 51, nullifying the law in most situations and allowing California’s corporations to once again force workers to sign arbitration agreements waiving their civil rights.
Law360’s article features analysis and advice from management-side and workers- side attorneys on how corporations and workers’ advocates should respond to the Ninth Circuit’s decision. In the article, Ms. Teukolsky advises plaintiffs’ lawyers to be extremely cautious when advising clients on arbitration agreements:
"’Plaintiff-side employment attorneys need to think very carefully before they advise an employee to refuse to sign one of these arbitration agreements,’ Teukolsky said. ‘I think you need to advise them: you may lose your job over this. Is that a risk you're willing to take?’" Ms. Teukolsky speaks from experience: she filed one of the only cases under A.B. 51 after her client was fired for expressing opposition to signing away her rights.
To read the article in its entirety, click here. For the Court’s opinion holding that A.B. 51 is preempted, click here.
If you have concerns about an arbitration agreement your employer has recently asked you to sign, click here to get in touch with our office.
Last week, Bloomberg Law cited research by Lauren Teukolsky in an article about oral arguments in Moriana v. Viking River Cruises, Inc., a pivotal Supreme Court case that was sent back to the California Court of Appeal for further action. The appellate court’s decision could have vast repercussions for lawsuits brought under the Private Attorneys General Act (“PAGA”).
Since SCOTUS’s Viking River decision, Ms. Teukolsky’s research shows that California courts have consistently rejected employer arguments that representative PAGA claims must be dismissed once the “individual” component of the plaintiff’s PAGA claim has been sent to arbitration. Bloomberg Law’s article states:
“California trial courts dismissed representative claims after moving individual claims into arbitration in just six of 75 decisions collected and analyzed by Lauren Teukolsky of the plaintiff-side firm Teukolsky Law APC. Bloomberg Law independently reviewed those decisions.”
Ms. Teukolsky’s updated numbers show an even greater trend in favor of employees.
Viking River and the fate of PAGA have been on the forefront of labor and employment experts’ minds for the past several years. In addition to her commentary on the issue for news outlets such as Bloomberg Law and the Daily Journal, Ms. Teukolsky has also discussed the implications of Viking River on a panel for CELA, a statewide organization that works to protect and expand the legal rights of workers, as well as for the College of Labor and Employment Lawyers, the preeminent peer-selected organization of labor and employment lawyers in the United States.
To read the article on Bloomberg Law, click here. To get in touch with Teukolsky Law, click here.
The California Supreme Court recently announced that oral argument in Adolph v. Uber will be scheduled for some time in the next few months. The high court is expected to decide the fate of California's Private Attorneys General Act (PAGA), which allows employees to step into the shoes of the State and bring labor enforcement actions against an employer. In Viking River, SCOTUS held that employers may not force employees to sign arbitration agreements waiving their right to bring PAGA actions. However, once the "individual" component of a PAGA claim is sent to arbitration (assuming that's what the arbitration agreement requires), SCOTUS held that the PAGA claim on behalf of coworkers must be dismissed for lack of standing. In Adolph, the California Supreme Court is expected to decide whether SCOTUS's standing ruling is a correct interpretation of California law.
If trial court orders are any predictor, the California Supreme Court is likely to rule that a PAGA plaintiff does not lose standing to prosecute claims on behalf of coworkers once the "individual" PAGA claim is sent to arbitration. Lauren Teukolsky has analyzed dozens of orders issued by California trial courts on post-Viking motions to compel. As of December 2022, of the 79 orders that Teukolsky analyzed, 12 of them denied the motion to compel outright (because the arbitration agreement explicitly carved out PAGA, because the defendant had unduly delayed in seeking arbitration, and a variety of other reasons). Of the remaining 67 orders, 55 of them sent the "individual" PAGA claims to arbitration, but declined to dismiss the "non-individual" PAGA claims. Trial courts in 20 of those orders explicitly disagreed with SCOTUS on the standing question, while the remainder said they wanted to wait for the outcome of Adolph before ruling. Of the 79 orders, only 11 of them followed SCOTUS to hold that once the individual PAGA claim was sent to arbitration, the PAGA claim on behalf of others must be dismissed (the "Full Alito"). Federal courts are far more likely to follow SCOTUS: Of the 11 federal orders analyzed, 6 of them, or 55%, went Full Alito. By contrast, of the 68 state court orders analyzed, 5 of them, or 7%, went Full Alito.
As of today, March 21, 2023, the numbers are even better for PAGA plaintiffs.
Lauren Teukolsky’s commentary was featured in a recent Law360 article discussing how California plans to handle wage complaints stemming from the collapse of Silicon Valley Bank (SVB). SVB catered to the tech industry for decades before collapsing and being seized by regulators on March 10, 2023. Its collapse made it the largest lender to fail since the 2008 financial crisis and left many of its depositors scrambling to make payroll.
Following SBV’s collapse, the California agency that enforces the Labor Code sent an email to employment defense firm Littler Mendelson providing them with assurances that any employers affected by the bank collapse who attempted in good faith to make payroll would not be subject to penalties for late wage payments. The agency said that it would divert any claims filed by employees under the Private Attorneys General Act (“PAGA”) related to the bank collapse, effectively preventing private lawsuits against employers from moving forward.
While employers and management-side law firms breathe a sigh of relief, workers’ attorneys have voiced concerns that employees need similar protections because many of them live paycheck to paycheck and may default on their own obligations if they don’t get paid. Employees may not be able to pay rent or make minimum payments on credit card bills, leading to the imposition of monetary penalties. The bank failure raises the question: who should bear the risk of a bank default, the employer who controls where the funds are kept, or the employee? Law360’s article states:
“’Banking crises generally can lead to significant impacts on workers,’ said Lauren Teukolsky of Teukolsky Law. ‘It's all well and good for the LWDA to say that employers will be protected. I would like to see similar kinds of protections for employees.’
Teukolsky added, ‘Bank failures are not novel at this point, and so I would hope that employers have some contingency plan for having some cash on hand to make their next payroll.’”
To read the Law360 article in its entirety, click here. To get in touch with Teukolsky Law, click here.
Lauren Teukolsky “Wage and Hour Case Notes” Published in the March 2023 edition of California Labor and Employment Law Review
Lauren Teukolsky’s “Wage and Hour Case Notes” were published in the March 2023 edition of the California Labor and Employment Law Review, describing six new decisions from California and U.S. appellate courts that affect wage-and-hour law. The column discusses arbitration agreements with wholesale PAGA waivers, California’s “outside salesperson” exemption, and the state’s first published appellate court decision to discuss Viking River’s impact on a motion to compel arbitration in a PAGA case, among other topics.
Wage-and-hour law is a dynamic field, with new appellate decisions that regularly reshape the legal landscape. Ms. Teukolsky is an expert in California wage-and-hour law and federal wage-and-hour law, and speaks frequently on wage-and-hour topics at national and state conferences. Her “Wage and Hour Case Notes” are published on a quarterly basis by the California Lawyers Association’s (CLA) Labor and Employment Law Section.
CLA is a voluntary bar association. Its mission is to “promote excellence, diversity and inclusion in the legal profession and fairness in access to justice and the rule of law.”
To read Ms. Teukolsky’s article in its entirety, click here. If you would like to speak with Ms. Teukolsky about a wage-and-hour matter, click here to get in touch.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.