On September 18, 2024, a panel of three Third US Circuit Court of Appeals judges heard oral argument from the National Labor Relations Board (NLRB) and Starbucks on the matter of consequential damages. At stake is the NLRB’s power to award damages for direct and foreseeable pecuniary harms that go beyond lost pay and benefits. The award of such things as credit card late payment costs and uninsured medical costs, fees for not timely paying other expenses, etc. are at issue. If such awards are within the NLRB’s authority, the damage awards in NLRB wrongful discharge cases could dramatically rise. Here is how we got to this point. In 2023, the NLRB ordered Starbucks to pay consequential damages in a case of the wrongful termination of two pro-union employees. Damages included “direct or foreseeable pecuniary harms incurred as a result of [the employees’ wrongful discharges.]” This case is one of many cases Starbucks faces alleging wrongful discharge of union supporters. If it losses, the monetary cost could be significant. By filing this appeal, Starbucks’s joins companies such as Amazon, SpaceX, and Trader Joe’s in challenging the NLRB’s constitutional authority to exert such enforcement powers. Traditionally, the Board would order reinstatement, backpay and lost benefits in a case of wrongful termination, however this was expanded in 2022. A Board decision in Thryv, Inc., 372 NLRB No. 22 (2021), held employees who are wrongfully terminated should also receive compensation for other pecuniary losses stemming from the termination. Examples include credit card cost, out of pocket medical expenses, mortgages related fees, etc. Such damages can quickly add up. In this latest Starbucks case, the Third Circuit considered Thryv  but also the US Supreme Court’s June ruling in Jarkesy v. U.S. Securities and Exchange Commission and its applicability to the NLRB. In Jarkesy, the Supreme Court found it was unconstitutional for the SEC to impose civil penalties in administrative cases. Such awards need to be awarded in a court. The Third Circuit must decide whether the expanded remedies sought by the NLRB would be considered “legal remedies” typically imposed by the courts as in Jarkesy or “equitable remedies” typically imposed by administrative agencies. Such administrative remedies are intended to benefit the worker rather than unfairly punish employers. The NLRB argued they have the authority to impose the remedies regardless of their status as legal or equitable. Not surprisingly, Starbucks argued allowing the NLRB to issue damages beyond backpay would violate their constitutional right to a jury trial and therefore was unconstitutional. The outcome is pending and regardless, it may well be appealed to the Supreme Court where the authority of various agencies is being curtailed. We will keep you informed. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560  

Passed in June 2024 and signed into law by New York Governor Kathy Hochul on September 5, the Retail Worker Safety Act is set to take effect March 4, 2025. The law mandates protections for retail employees including panic buttons, workplace violence prevention policies, and training. Who is covered? The law explains: Covered employers: any person, entity, business, corporation, partnership, limited liability company, or an association employing at least ten retail employees. Retail employees: employees working at a retail store for an employer. Retail Store: a store that sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises. The state, any political subdivision of the state, a public authority, or any other government agency is not covered by the law. Key Requirements The Act’s key requirements are the installation of panic buttons, implementation of workplace violence prevention policies, and training. The panic button requirement does not take effect until January 1, 2027, while the other requirements are effective March 2025. Panic Button Employers with more than 500 retail employees nationwide must provide employees with access to panic buttons across the workplace. Employers may opt for a physical button or mobile phone-based buttons. The requirements for each are slightly different. If the employer chooses to use a physical panic button it must contact the local 911 public safety answering point when pressed. Pressing the button must provide the answering point with the employee’s location and dispatch law enforcement. The button must be accessible or wearable. The mobile phone-based approach requires the button to be installed on employer provided equipment and is wearable. The mobile button may not track employee locations unless pressed.   Workplace Violence Prevention Policy Employers must adopt a written workplace violence prevention policy to be provided to employees upon hire and annually. The NY Department of Labor (NYDOL) will draft a model plan which will be evaluated every four years from 2027 onwards. Employers may adopt the NYDOL policy or create their own equivalent policy. The policy must: List factors or situations in the workplace which may increase the employees’ risk of workplace violence. Examples given include working late at night or early morning hours; exchanging money with the public; working alone or in small numbers; and uncontrolled access to the workplace. List methods of preventing workplace violence, including but not limited to establishing and implementing a reporting system. Provide information on federal and state laws regarding violence towards retail workers and remedies available for victims of workplace violence. Explicitly state that it is unlawful to retaliate against employees who report workplace violence or factors which place employees at risk of workplace violence. Workplace Violence Prevention Training Employers must provide training upon hire and annually. The NYDOL will provide interactive training which will also be evaluated every four years starting in 2027. Again, employers may opt to use the state provided training or provide their own equivalent. The training must: Include information on the Retail Worker Safety Act; Examples of steps employees can take to protect themselves; De-escalation strategies; Active Shooter drills; Emergency procedures; Instructions on how to use security alarms, panic buttons, and any other emergency devices; and A site-specific list of emergency exits and meeting places to be used in emergencies. Takeaways New York State retail employers should look at the state provided training and policies to adopt as their own or to ensure their own materials are compliant. For employers outside of New York it is important to keep your eyes peeled for creation of similar laws in your own state. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560