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    Supreme Court to Hear Starbucks Bid to Overturn Labor Ruling

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    The coffee chain has challenged a federal judge’s order to reinstate a group of union activists who were fired at a store in Memphis.The Supreme Court agreed on Friday to hear a case brought by Starbucks challenging a federal judge’s order to reinstate seven employees who were fired at a store in Memphis amid a union campaign there.Starbucks argued that the criteria for such intervention by judges in labor cases, which can also include measures like reopening shuttered stores, vary across regions of the country because federal appeals courts may adhere to different standards.A regional director for the National Labor Relations Board, the company’s opponent in the case, argued that the apparent differences in criteria among appeals courts were semantic rather than substantive, and that a single effective standard was already in place nationwide.The labor board had urged the Supreme Court to stay out of the case, whose outcome could affect union organizing across the country.The agency asks federal judges for temporary relief, like reinstatement of fired workers, because litigating charges of unfair labor practices can take years. The agency argues that retaliation against workers can have a chilling effect on organizing in the meantime, even if the workers ultimately win their case.In a statement on Friday, Starbucks said, “We are pleased the Supreme Court has decided to consider our request to level the playing field for all U.S. employers by ensuring that a single standard is applied as federal district courts.”The labor board declined to comment.The union organizing campaign at Starbucks began in the Buffalo area in 2021 and quickly spread to other states. The union, Workers United, represents workers at more than 370 Starbucks stores, out of roughly 9,600 company-owned stores in the United States.The labor board has issued dozens of complaints against the company based on hundreds of accusations of labor law violations, including threats and retaliation against workers who are seeking to unionize and a failure to bargain in good faith. This week, the agency issued a complaint accusing the company of unilaterally changing work hours and schedules in unionized stores around the country.The company has denied violating labor law and said in a statement that it contested the latest complaint and planned “to defend our lawful business decisions” before a judge.The case that led to the dispute before the Supreme Court involves seven workers who were fired in February 2022 after they let local journalists into a closed store to conduct interviews. Starbucks said the incident violated company rules; the workers and the union said the company did not enforce such rules against workers who were not involved in union organizing.The labor board found merit in the workers’ accusations and issued a complaint two months later. A federal judge granted the labor board’s request for an order reinstating the workers that August, and a federal appeals court upheld the order.“Starbucks is seeking a bailout for its illegal union-busting from Trump’s Supreme Court,” Workers United said in a statement on Friday. “There’s no doubt that Starbucks broke federal law by firing workers in Memphis for joining together in a union.”Starbucks said it was critical for the Supreme Court to wade into the case because the labor board was becoming more ambitious in asking judges to order remedies like reinstatement of fired workers.The labor board noted in its filing with the Supreme Court that it was bringing fewer injunctions overall than in some recent years — only 21 were authorized in 2022, down from more than 35 in 2014 and 2015.A Supreme Court decision could in principle raise the bar for judges to issue orders reinstating workers, effectively limiting the labor board’s ability to win temporary relief for workers during a union campaign.The case is not the only recent challenge to the labor board’s authority. After the board issued a complaint accusing the rocket company SpaceX of illegally firing eight employees for criticizing its chief executive, Elon Musk, the company filed a lawsuit this month arguing that the agency’s setup for adjudicating complaints is unconstitutional.The company said in its lawsuit that the agency’s structure violated its right to a trial by jury. More

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    Federal Regulators Seek to Force Starbucks to Reopen 23 Stores

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    The National Labor Relations Board says the locations were closed because of union organizing, violating federal law.Federal labor regulators accused Starbucks on Wednesday of illegally closing 23 stores to suppress organizing activity and sought to force the company to reopen them.A complaint issued by a regional office of the National Labor Relations Board argued that Starbucks had closed the stores because its employees engaged in union activities or to discourage employees from doing so. At least seven of the 23 stores identified had unionized.The agency’s move is the latest in a series of accusations by federal officials that Starbucks has broken the law during a two-year labor campaign.The case is scheduled to go before an administrative judge next summer unless Starbucks settles it earlier. In addition to asking the judge to order the stores reopened, the complaint wants employees to be compensated for the loss of earnings or benefits and for other costs they incurred as a result of the closures.“This complaint is the latest confirmation of Starbucks’ determination to illegally oppose workers’ organizing,” Mari Cosgrove, a Starbucks employee, said in a statement issued through a spokesperson for the union, Workers United.A Starbucks spokesman said, “Each year as a standard course of business, we evaluate the store portfolio” and typically open, close or alter stores. The company said it opened hundreds of new stores last year and closed more than 100, of which about 3 percent were unionized.The union campaign began in 2021 in the Buffalo, N.Y., area, where two stores unionized that December, before spreading across the country. More than 350 of the company’s roughly 9,300 corporate-owned locations have unionized.The labor board has issued more than 100 complaints covering hundreds of accusations of illegal behavior by Starbucks, including threats or retaliation against workers involved in union activity and a failure to bargain in good faith. Administrative judges have ruled against the company on more than 30 occasions, though the company has appealed those decisions to the full labor board in Washington. Judges have dismissed fewer than five of the complaints.None of the unionized stores have negotiated a labor contract with the company, and bargaining has largely stalled. Last week, Starbucks wrote to Workers United saying it wanted to resume negotiations.According to Wednesday’s complaint, Starbucks managers announced the closing of 16 stores in July 2022, then announced several more closures over the next few months.An administrative judge previously ruled that Starbucks had illegally closed a unionized store in Ithaca, N.Y., and ordered workers reinstated with back pay, but the company has appealed that decision.The new complaint was issued on the same day that Starbucks released a nonconfidential version of an outside assessment of whether its practices align with its stated commitment to labor rights. The company’s shareholders had voted to back the assessment in a nonbinding vote whose results were announced in March.The author of the report, Thomas M. Mackall, a former management-side lawyer and labor relations official at the food and facilities management company Sodexo, wrote that he “found no evidence of an ‘anti-union playbook’ or instructions or training about how to violate U.S. laws.”But Mr. Mackall concluded that Starbucks officials involved in responding to the union campaign did not appear to understand how the company’s Global Human Rights Statement might constrain their response. The rights statement commits Starbucks to respecting employees’ freedom of association and participation in collective bargaining.Mr. Mackall cited managers’ “allegedly unlawful promises and threats” and “allegedly discriminatory or retaliatory discipline and discharge” as areas where Starbucks could improve.In a letter tied to the report’s release, the chair of the company’s board and an independent director said the assessment was clear that “Starbucks has had no intention to deviate from the principles of freedom of association and the right to collective bargaining.” At the same time, the letter added, “there are things the company can, and should, do to improve its stated commitments and its adherence to these important principles.” More

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    Amazon Is Cracking Down on Union Organizing, Workers Say

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    More than a year and a half after Amazon workers on Staten Island voted to form the company’s first union in the United States, the company appears to be taking a harder line toward labor organizing, disciplining workers and even firing one who had been heavily involved in the union campaign.The disciplinary actions come at a time when union organizers appear to be gaining ground at a major air hub operated by Amazon in Kentucky, where they say they have collected union authorization cards from at least one-quarter of hourly employees. Workers must typically demonstrate at least 30 percent support to prompt a union election.In disciplining the employees, Amazon has raised questions about the extent to which they are free to approach co-workers to persuade them to join a union, a federally protected right. The general counsel of the National Labor Relations Board has said Amazon is breaking the law through a policy governing the access that off-duty workers have to its facilities, which Amazon invoked in the recent firing. The board is seeking to overturn the policy at an upcoming trial.Lisa Levandowski, an Amazon spokeswoman, said the recent disciplinary actions were strictly a response to rule violations, not to union organizing. “Employees have the choice of whether or not to join a union,” she said.The company’s off-duty access rule is “a lawful, common-sense policy,” she said, “and we look forward to defending our position.”The fired worker, Connor Spence, was a founder of the Amazon Labor Union, which won last year’s election on Staten Island. After a split within the union leadership, Mr. Spence helped start a separate group that sought to pressure the company to negotiate a contract at the warehouse, known as JFK8.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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    Doctors at Allina Health Form Union

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    The physicians, at Allina Health in Minnesota and Wisconsin, appear to be the largest group of unionized doctors in the private sector.In the latest sign of growing frustration among professionals, doctors employed by a large nonprofit health care system in Minnesota and Wisconsin have voted to unionize.The doctors, roughly 400 primary and urgent-care providers across more than 50 clinics operated by the Allina Health System, appear to be the largest group of unionized private-sector physicians in the United States. More than 150 nurse practitioners and physician assistants at the clinics were also eligible to vote and will be members of the union, which will be represented by a local of the Service Employees International Union.The result was 325 to 200, with 24 other ballots challenged, according to a tally sheet from the National Labor Relations Board, which conducted the vote. In a statement, Allina said, “While we are disappointed in the decision by some of our providers to be represented by a union, we remain committed to our ongoing work to create a culture where all employees feel supported and valued.”The doctors complained that chronic understaffing was leading to burnout and compromising patient safety.“In between patients, your doctor is dealing with prescription refills, phone calls and messages from patients, lab results,” said Dr. Cora Walsh, a family physician involved in the organizing campaign.“At an adequately staffed clinic, you have enough support to help take some of that workload,” Dr. Walsh added. “When staff levels fall, that work doesn’t go away.”Dr. Walsh estimated that she and her colleagues often spend an hour or two each night handling “inbox load” and worried that the shortages were increasing backlogs and the risk of mistakes.The union vote follows recent walkouts by pharmacists in the Kansas City area and elsewhere over similar concerns.A variety of professionals, including architects and tech workers, have sought to form unions in recent years, while others, like nurses and teachers, have waged strikes and aggressive contract bargaining campaigns.Some argue that employers have exploited their sense of mission to pay them less than their skills warrant, or to work them around the clock. Others contend that new business models or budget pressures are compromising their independence and interfering with their professional judgment.Increasingly, doctors appear to be expressing both concerns.“We feel like we’re not able to advocate for our patients,” said Dr. Matt Hoffman, another doctor involved in the organizing at Allina. Dr. Hoffman, referring to managers, added that “we’re not able to tell them what we need day to day.”Consolidation in the health care industry over the past two decades appears to underlie much of the frustration among doctors, many of whom now work for large health care systems.“When a physician ran his or her own practice, they made the decisions about the people and technology they surrounded themselves with,” Dr. Robert Wachter, chair of the department of medicine at the University of California, San Francisco, said in an email. “Now, these decisions are made by administrators.”Doctors at Allina say that staffing was a concern before the pandemic, that Covid-19 pushed them to the brink and that staffing has never fully recovered to its prepandemic levels.Relatively low pay for clinical assistants and lab personnel appears to have contributed to the staffing issues, as these workers left for other fields in a tight job market. In some cases, doctors and other clinicians within the Allina system have quit or scaled back their hours, citing so-called moral injury — a sense that they couldn’t perform their jobs in accordance with their values.“We were promised that when we get through the acute phase of the pandemic, staffing would get better,” Dr. Walsh said. “But staffing never improved.”Allina, which takes in billions in revenue but has faced financial pressures and recently eliminated hundreds of positions, did not respond to questions about the doctors’ concerns.Joe Crane, the national organizing director for the Doctors Council of the S.E.I.U., which represents attending physicians, said that before the pandemic, he would receive about 50 inquiries a year from doctors interested in learning more about forming a union. He said he received more than 150 inquiries during the first month of the pandemic. (Mr. Crane was with another physicians’ union at the time.)Mr. Crane, citing the siloed nature of the medical profession, said that unionization among attending physicians had nonetheless proceeded slowly, but that the victory at Allina could create momentum.In March, more than 100 doctors voted to unionize at another Allina facility, a hospital with two locations. Dr. Alia Sharif, a physician involved in that union campaign, said doctors were under pressure there not to exceed length-of-stay guidelines for patients, even though many suffer from complex conditions that require more sustained care.Allina is appealing the outcome of that vote to the National Labor Relations Board in Washington; a board official rejected an earlier appeal.Even as rates of unionization have languished among attending physicians, they have increased substantially among medical residents. A sister union within the S.E.I.U., the Committee of Interns and Residents, has added thousands of members over the past few years.Dr. Wachter said this could herald an increase in unionization among doctors outside training programs. “When these physicians finish training and enter practice, they are more comfortable with a world in which unionization doesn’t automatically conflict with their notions of being a professional,” he wrote. More

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    Heat Is Costing the U.S. Economy Billions in Lost Productivity

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    From meatpackers to home health aides, workers are struggling in sweltering temperatures and productivity is taking a hit.As much of the United States swelters under record heat, Amazon drivers and warehouse workers have gone on strike in part to protest working conditions that can exceed 100 degrees Fahrenheit.On triple-digit days in Orlando, utility crews are postponing checks for gas leaks, since digging outdoors dressed in heavy safety gear could endanger their lives. Even in Michigan, on the nation’s northern border, construction crews are working shortened days because of heat.Now that climate change has raised the Earth’s temperatures to the highest levels in recorded history, with projections showing that they will only climb further, new research shows the impact of heat on workers is spreading across the economy and lowering productivity.Extreme heat is regularly affecting workers beyond expected industries like agriculture and construction. Sizzling temperatures are causing problems for those who work in factories, warehouses and restaurants and also for employees of airlines and telecommunications firms, delivery services and energy companies. Even home health aides are running into trouble.“We’ve known for a very long time that human beings are very sensitive to temperature, and that their performance declines dramatically when exposed to heat, but what we haven’t known until very recently is whether and how those lab responses meaningfully extrapolate to the real-world economy,” said R. Jisung Park, an environmental and labor economist at the University of Pennsylvania. “And what we are learning is that hotter temperatures appear to muck up the gears of the economy in many more ways than we would have expected.”A study published in June on the effects of temperature on productivity concludes that while extreme heat harms agriculture, its impact is greater on industrial and other sectors of the economy, in part because they are more labor-intensive. It finds that heat increases absenteeism and reduces work hours, and concludes that as the planet continues to warm, those losses will increase.The cost is high. In 2021, more than 2.5 billion hours of labor in the U.S. agriculture, construction, manufacturing, and service sectors were lost to heat exposure, according to data compiled by The Lancet. Another report found that in 2020, the loss of labor as a result of heat exposure cost the economy about $100 billion, a figure projected to grow to $500 billion annually by 2050.A U.P.S. delivery in Manhattan on Monday.Spencer Platt/Getty ImagesOther research found that as the mercury reaches 90 degrees Fahrenheit, productivity slumps by about 25 percent and when it goes past 100 degrees, productivity drops off by 70 percent.And the effects are unequally distributed: in poor counties, workers lose up to 5 percent of their pay with each hot day, researchers have found. In wealthy counties, the loss is less than 1 percent.Of the many economic costs of climate change —- dying crops, spiking insurance rates, flooded properties — the loss of productivity caused by heat is emerging as one of the biggest, experts say.“We know that the impacts of climate change are costing the economy,” said Kathy Baughman McLeod, director of the Adrienne Arsht-Rockefeller Foundation Resilience Center, and a former global executive for environmental and social risk at Bank of America. “The losses associated with people being hot at work, and the slowdowns and mistakes people make as a result are a huge part.”Still, there are no national regulations to protect workers from extreme heat. In 2021, the Biden administration announced that the Occupational Safety and Health Administration would propose the first rule designed to protect workers from heat exposure. But two years later, the agency still has not released a draft of the proposed regulation.Seven states have some form of labor protections dealing with heat, but there has been a push to roll them back in some places. In June, Governor Greg Abbott of Texas signed a law that eliminated rules set by municipalities that mandated water breaks for construction workers, even though Texas leads all states in terms of lost productivity linked to heat, according to an analysis of federal data conducted by Vivid Economics.Business groups are opposed to a national standard, saying it would be too expensive because it would likely require rest, water and shade breaks and possibly the installation of air-conditioning.Martin Rosas, the vice president for the United Food and Commercial Workers Union International. “When it’s extremely hot, and their safety glasses fog up, their vision is impaired and they are exhausted, they can’t even see what they’re doing,” he said of the workers he represents.Brett Deering for The New York Times“OSHA should take care not to impose further regulatory burdens that make it more difficult for small businesses to grow their businesses and create jobs,” wrote David S. Addington, vice president of the National Federation of Independent Business, in response to OSHA’s plan to write a regulation.Marc Freedman, vice president of employment policy at the United States Chamber of Commerce, said, “I don’t think anyone is dismissing the hazard of overexposure to heat.” But, he said, “Is an OSHA standard the right way to do it? A lot of employers are already taking measures, and the question will be, what more do they have to do?”The National Beef slaughterhouse in Dodge City, Kan., where temperatures are expected to hover above 100 degrees Fahrenheit for the next week, is cooled by fans, not air-conditioning.Workers wear heavy protective aprons and helmets and use water vats and hoses heated to 180 degrees to sanitize their equipment. It’s always been hot work.But this year is different, said one worker, who asked not to be identified for fear of retribution. The heat inside the slaughterhouse is intense, drenching employees in sweat and making it hard to get through a shift, the worker said.National Beef did not respond to emails or telephone calls requesting comment.Martin Rosas, a union representative for meatpacking and food processing workers in Kansas, Missouri and Oklahoma, said sweltering conditions present a risk for food contamination. After workers skin a hide, they need to ensure that debris doesn’t get on the meat or carcass. “But when it’s extremely hot, and their safety glasses fog up, their vision is impaired and they are exhausted, they can’t even see what they’re doing,” Mr. Rosas said.Almost 200 employees out of roughly 2,500, have quit at the Dodge City National Beef plant since May, Mr. Rosas said. That’s about 10 percent higher than usual for that time period, he said.Maria Rodriguez, who has worked at the same McDonald’s in Los Angeles for 20 years, walked out on July 21.Jessica Pons for The New York TimesBut even some workers in air-conditioned settings are getting too hot. McDonald’s workers in Los Angeles walked off the job this summer as the air-conditioned kitchens were overwhelmed by the sweltering heat outside.“There is an air-conditioner in every part of the store, but the thermostat in the kitchen still showed it was over 100 degrees,” said Maria Rodriguez, who has worked at the same McDonald’s on Crenshaw Boulevard in Los Angeles for 20 years, but walked out on July 21, sacrificing a day of pay. “It’s been hot before, but never like this summer. I felt terrible — like I could pass out or faint at any moment.”Nicole Enearu, the owner of the store, said in a statement, “We understand that there’s an uncomfortable heat wave in LA, which is why we’re even more focused on ensuring the safety of our employees inside our restaurants. Our air-conditioning is functioning properly at this location.”Tony Hedgepeth, a home health aide in Richmond, Va., cares for a client whose home thermostat is typically set at about 82 degrees. Last week, the temperature inside was near 94 degrees.Any heat is a challenge in Mr. Hedgepeth’s job. “Bathing, cooking, lifting and moving him, cleaning him,” he said. “It’s all physical. It’s a lot of sweat.”Warehouse workers across the country are also feeling the heat. Sersie Cobb, a forklift driver who stocks boxes of pasta in a warehouse in Columbia, S.C., said the stifling heat can make it difficult to breathe. “Sometimes I get dizzy and start seeing dots,” Mr. Cobb said. “My vision starts to go black. I stop work immediately when that happens. Two times this summer I’ve had heart palpitations from the heat, and left work early to go to the E.R.”In Southern California, a group of 84 striking Amazon delivery workers say that one of their priorities is getting the company to make it safe to work in extreme heat. Last month, unionized UPS workers won a victory when the company agreed to install air-conditioning in delivery trucks.Amazon delivery drivers striking at the company’s Palmdale, Calif., warehouse and delivery center on Tuesday.Robyn Beck/Agence France-Presse — Getty Images“Heat has played a tremendous role — it was one of the major issues in the negotiations,” said Carthy Boston, a member of the International Brotherhood of Teamsters representing UPS drivers in Washington, D.C. “Those trucks are hotboxes.”Many factories were built decades ago for a different climate and are not air-conditioned. A study on the effects of extreme temperatures on the productivity of auto plants in the United States found that a week with six or more days of heat exceeding 90 degrees Fahrenheit cuts production by an average of 8 percent.In Tulsa, Okla., Navistar is installing a $19 million air-conditioning system at its IC Bus factory, which produces many of America’s school buses. Temperatures on the floor can reach 99 degrees F. Currently, the plant is only cooled by overhead fans that swirl high above the assembly line.Shane Anderson, the company’s interim manager, said air-conditioning is expected to cost about $183 per hour, or between $275,000 and $500,000 per year — but the company believes it will boost worker productivity.Other employers are also adapting.Brad Maurer, who leads a construction contracting business in Michigan, where heat has caused his employees to stop working hours before quitting time at some sites.Emily Elconin for The New York TimesBrad Maurer, vice president of Leidal and Hart, which builds stadiums, hospitals and factories in Michigan, Ohio, Indiana, Kentucky and Tennessee, said managers now bring in pallets of bottled water, which they didn’t used to do, at a cost to the company of a few thousand dollars a month.Rising heat around Detroit recently caused his employees to stop working three hours early on a Ford Motors facility for several days in a row — a pattern emerging throughout his company’s work sites.“It means costs go up, production goes down, we may not meet schedules, and guys and women don’t get paychecks,” Mr. Maurer said. Labor experts say that as employers adapt to the new reality of the changing climate, they will have to pay one way or the other.“The truth is that the changes required probably will be very costly, and they will get passed on to employers and consumers,” said David Michaels, who served as assistant secretary of labor at OSHA during the Obama administration and is now a professor at the George Washington School of Public Health.“But if we don’t want these workers to get killed we will have to pay that cost.”David Gelles More

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    Affirmative Action Ruling May Upend Diversity Hiring Policies, Too

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    The Supreme Court decision on college admissions could lead companies to alter recruitment and promotion practices to pre-empt legal challenges.As a legal matter, the Supreme Court’s rejection of race-conscious admissions in higher education does not in itself impede employers from pursuing diversity in the workplace.That, at least, is the conclusion of lawyers, diversity experts and political activists across the spectrum — from conservatives who say robust affirmative action programs are already illegal to liberals who argue that they are on firm legal ground.But many experts argue that as a practical matter, the ruling will discourage corporations from putting in place ambitious diversity policies in hiring and promotion — or prompt them to rein in existing policies — by encouraging lawsuits under the existing legal standard.After the decision on Thursday affecting college admissions, law firms encouraged companies to review their diversity policies.“I do worry about corporate counsels who see their main job as keeping organizations from getting sued — I do worry about hyper-compliance,” said Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University, who advises employers on diversity policies.Programs to foster the hiring and promotion of African Americans and other minority workers have been prominent in corporate America in recent years, especially in the reckoning over race after the 2020 murder of George Floyd by a Minneapolis police officer.Even before the ruling in the college cases, corporations were feeling legal pressure over their diversity efforts. Over the past two years, a lawyer representing a free-market group has sent letters to American Airlines, McDonald’s and many other corporations demanding that they undo hiring policies that the group says are illegal.The free-market group, the National Center for Public Policy Research, acknowledged that the outcome on Thursday did not bear directly on its fight against affirmative-action in corporate America. “Today’s decision is not relevant; it dealt with a special carve-out for education,” said Scott Shepard, a fellow at the center.Mr. Shepard claimed victory nonetheless, arguing that the ruling would help deter employers who might be tempted overstep the law. “It couldn’t be clearer after the decision that fudging it at the edges” is not allowed, he said.(American Airlines and McDonald’s did not respond to requests for comment about their hiring and promotion policies.)Charlotte A. Burrows, who was designated chair of the Equal Employment Opportunity Commission by President Biden, was also quick to declare that nothing had changed. She said the decision “does not address employer efforts to foster diverse and inclusive work forces or to engage the talents of all qualified workers, regardless of their background.”Some companies in the cross hairs of conservative groups underscored the point. “Novartis’s D.E.I. programs are narrowly tailored, fair, equitable and comply with existing law,” the drugmaker said in a statement, referring to diversity, equity and inclusion. Novartis, too, has received a letter from a lawyer representing Mr. Shepard’s group, demanding that it change its policy on hiring law firms.The Supreme Court’s ruling on affirmative action was largely silent on employment-related questions.Kenny Holston/The New York TimesBeyond government contractors, affirmative action policies in the private sector are largely voluntary and governed by state and federal civil rights law. These laws prohibit employers from basing hiring or promotion decisions on a characteristic like race or gender, whether in favor of a candidate or against.The exception, said Jason Schwartz, a partner at the law firm Gibson Dunn, is that companies can take race into account if members of a racial minority were previously excluded from a job category — say, an investment bank recruiting Black bankers after it excluded Black people from such jobs for decades. In some cases, employers can also take into account the historical exclusion of a minority group from an industry — like Black and Latino people in the software industry.In principle, the logic of the Supreme Court’s ruling on college admissions could threaten some of these programs, like those intended to address industrywide discrimination. But even here, the legal case may be a stretch because the way employers typically make decisions about hiring and promotion differs from the way colleges make admissions decisions.“What seems to bother the court is that the admissions programs at issue treated race as a plus without regard to the individual student,” Pauline Kim, a professor at Washington University in St. Louis who specializes in employment law, said in an email. But “employment decisions are more often individualized decisions,” focusing on the fit between a candidate and a job, she said.The more meaningful effect of the court’s decision is likely to be greater pressure on policies that were already on questionable legal ground. Those could include leadership acceleration programs or internship programs that are open only to members of underrepresented minority groups.Many companies may also find themselves vulnerable over policies that comply with civil rights law on paper but violate it in practice, said Mike Delikat, a partner at Orrick who specializes in employment law. For example, a company’s policy may encourage recruiters to seek a more diverse pool of candidates, from which hiring decisions are made without regard to race. But if recruiters carry out the policy in a way that effectively creates a racial quota, he said, that is illegal.“The devil is in the details,” Mr. Delikat said. “Were they interpreting that to mean, ‘Come back with 25 percent of the internship class that has to be from an underrepresented group, and if not you get dinged as a bad recruiter’?”The college admissions cases before the Supreme Court were largely silent on these employment-related questions. Nonetheless, Mr. Delikat said, his firm has been counseling clients ever since the court agreed to hear the cases that they should ensure that their policies are airtight because an increase in litigation is likely.That is partly because of the growing attack from the political right on corporate policies aimed at diversity in hiring and other social and environmental goals.Gov. Ron DeSantis of Florida has signed legislation to limit diversity training in the workplace.Haiyun Jiang for The New York TimesGov. Ron DeSantis of Florida, who is seeking the 2024 Republican presidential nomination, has deplored “the woke mind virus” and proclaimed Florida “the state where woke goes to die.” The state has enacted legislation to limit diversity training in the workplace and has restricted state pension funds from basing investments on “woke environmental, social and corporate governance” considerations.Conservative legal groups have also mobilized on this front. A group run by Stephen Miller, a White House adviser in the Trump administration, contended in letters to the Equal Employment Opportunity Commission that the diversity and inclusion policies of several large companies were illegal and asked the commission to investigate. (Mr. Miller’s group did not respond to a request for comment about those cases.)The National Center for Public Policy Research, which is challenging corporate diversity policies, has sued Starbucks directors and officers after they refused to undo the company’s diversity and inclusion policies in response to a letter demanding that they do so. (Starbucks did not respond to a request for comment for this article, but its directors told the group that it was “not in the best interest of Starbucks to accept the demand and retract the policies.”)Mr. Shepard, the fellow at the center, said more lawsuits were “reasonably likely” if other companies did not accede to demands to rein in their diversity and inclusion policies.One modest way to do so, said David Lopez, a former general counsel for the Equal Employment Opportunity Commission, is to design policies that are race neutral but nonetheless likely to promote diversity — such as giving weight to whether a candidate has overcome significant obstacles.Mr. Lopez noted that, in the Supreme Court’s majority opinion, Chief Justice John G. Roberts Jr. argued that a university could take into account the effect on a candidate of having overcome racial discrimination, as long as the school didn’t consider the candidate’s race per se.But Dr. Tillery of Northwestern said making such changes to business diversity programs could be an overreaction to the ruling. While the federal Civil Rights Act of 1964 generally precludes basing individual hiring and promotion decisions explicitly on race, it allows employers to remove obstacles that prevent companies from having a more diverse work force. Examples include training managers and recruiters to ensure that they aren’t unconsciously discriminating against racial minorities, or advertising jobs on certain campuses to increase the universe of potential applicants.In the end, companies appear to face a greater threat of litigation over discrimination against members of minority groups than from litigation over discrimination against white people. According to the Equal Employment Opportunity Commission, there were about 2,350 charges of that latter form of discrimination in employment in 2021, among about 21,000 race-based charges overall.“There’s an inherent interest in picking your poison,” Dr. Tillery said. “Is it a lawsuit from Stephen Miller’s right-wing group that doesn’t live in the real world? Or is it a lawsuit from someone who says you’re discriminating against your work force and can tweet about how sexist or racist you are?”He added, “I’ll take the Stephen Miller poison any day.”J. Edward Moreno More

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    Labor Board, Reversing Trump-Era Ruling, Widens Definition of Employee

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    The National Labor Relations Board, with a Democratic majority, restored a standard that counts more workers as employees rather than contractors.Labor regulators issued a ruling on Tuesday that makes it more likely for workers to be considered employees rather than contractors under federal law.Overturning a ruling issued when the board was under Republican control, the decision effectively increases the number of workers — like drivers, construction workers or janitors — who have a federally protected right to unionize or take other collective action, such as protesting unsafe working conditions.The ruling ensures that “workers who seek to organize or exercise their rights under the National Labor Relations Act are not improperly excluded from its protections,” said a statement by Lauren McFerran, the Democratic chairman of the labor board, which voted 3 to 1 along party lines to broaden the standard.Determining whether a worker is an employee or a contractor has long depended on several variables, including the potential employer’s control over the work and provision of tools and equipment.In 2019, when the board was controlled by appointees of President Donald J. Trump, it elevated one consideration — workers’ chances to make more money based on their business savvy, often described as “entrepreneurial opportunity” — above the others. It concluded that such opportunities should be a key tiebreaker when some factors pointed to contractor status and others indicated employment.In its decision in 2019, the board said that a ruling during the Obama administration had improperly subordinated the question of moneymaking opportunities.That 2019 ruling appeared to be a victory for gig companies like Uber and Lyft, whose supporters have argued that ride-share drivers should be considered contractors in part because of the opportunities they have for potential profit — say, by determining which neighborhoods to work in.The latest decision returned the board to the standard laid out in the Obama era, explicitly rejecting the elevation of entrepreneurial opportunity above other factors.The turnabout was criticized on Tuesday by businesses that rely heavily on contractors. In a statement, Evan Armstrong, chair of the Coalition for Workforce Innovation, which represents companies like Uber and Lyft as well as industry trade groups, said that the ruling “decreases clarity and threatens the flexible independent model that benefits workers, consumers, entrepreneurs, businesses and the overall economy.”Some labor experts, however, say it is not clear that gig companies like Uber and Lyft, which set the prices that passengers pay, provide drivers with enough bona fide entrepreneurial opportunity to qualify them as contractors even under the old standard.In his dissent, Marvin E. Kaplan, the board’s lone Republican member, made a version of this argument, concluding that the workers in the case before the board — wig, hair and makeup stylists who work with the Atlanta Opera — “have little opportunity for economic gain or, conversely, risk of loss.”As a result, he agreed with the board’s majority that the stylists should be considered employees who have the right to unionize.But Mr. Kaplan wrote that the lack of entrepreneurial opportunities meant that the stylists should have been considered employees even under the Trump-era standard, and that there was no need to alter it. More

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    Companies Are Pushing Back Harder on Union Efforts, Workers Say

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    Apple, Starbucks, Trader Joe’s and REI are accused of targeting union supporters after organizing efforts gained traction, charges the companies deny.After working for more than seven years at an Apple store in Kansas City, Mo., Gemma Wyatt ran into trouble.Last year, she said, managers disciplined her for clocking in late a few times over the previous several weeks. Then, in February, Apple fired her after she missed a store meeting because she was sick but failed to notify managers soon enough, according to Ms. Wyatt.She was at least the fifth Apple employee the store had fired since this fall, all of whom had been active in union organizing there. The terminations came after two other Apple stores voted to unionize.“It took us time to realize they weren’t firing us just because of time and attendance,” said Ms. Wyatt, who is part of a charge filed with the National Labor Relations Board in March accusing Apple of unfair labor practices.Apple said it had not disciplined or fired any workers in retaliation for union activity. “We strongly deny these claims and look forward to providing the full set of facts to the N.L.R.B.,” a spokeswoman said.A pattern of similar worker accusations — and corporate denials — has arisen at Starbucks, Trader Joe’s and REI as retail workers have sought to form unions in the past two years.Initially, the employers countered the organizing campaigns with criticism of unions and other means of dissuasion. At Starbucks, there were staffing and management changes at the local level, and top executives were dispatched. But workers say that in each case, after unionization efforts succeeded at one or two stores, the companies became more aggressive.Some labor relations experts say the companies’ progressive public profiles may help explain why they chose to hold back at the outset.“You’re espousing these values but saying this other organization claiming the same values” — the union — “isn’t good for your work force,” said David Pryzbylski, a labor lawyer at Barnes & Thornburg who represents employers. “It puts you in a little bit of corner.”Once the union wins a few elections, however, “you pull out all the stops,” Mr. Pryzbylski said.In some cases, the apparent escalation of company pushback has coincided with a slowing down of the union campaigns. At Starbucks, filings for union elections fell below 10 in August, from about 70 five months earlier, and no Apple store has filed for a union election since November.At Starbucks, the company unlawfully dismissed seven Buffalo-area employees last year, not long after the union won two elections there, according to a ruling by a federal administrative judge.A Trader Joe’s store in Louisville, Ky., which was the third at the company to unionize, fired two employees who were supportive of the union campaign and has formally disciplined several more, said Connor Hovey, a worker involved in the organizing. Documents shared by Mr. Hovey show the company citing a variety of issues, such as dress-code violations, tardiness and excessively long breaks.And in advance of a recent union election at an REI near Cleveland, management sought to exclude certain categories of workers from voting, according to the Retail, Wholesale and Department Store Union. It said the chain, a co-op that sells recreational gear, had made no such challenge in two previous elections, in which workers voted to unionize. (The union said the company had backed down after workers at the Cleveland-area store walked out, and the store voted to unionize in March.)Jess Raimundo, a spokeswoman for the United Food and Commercial Workers, which is also seeking to unionize REI stores, said the co-op had formally disciplined one employee in Durham, N.C., and put another on leave and later fired him over a workplace action that took place after the workers filed for a union election last month.Starbucks, which is appealing the ruling involving the Buffalo-area employees, has said the firings and discipline were unrelated to union organizing. A Trader Joe’s spokeswoman said that the company had never disciplined an employee for seeking to unionize but that unionizing efforts didn’t exempt an employee from job responsibilities.An REI spokeswoman said that the co-op sought to exclude certain categories of workers near Cleveland because it believed their duties made them ineligible to join a union, and that it had reached an agreement on the issue independent of the walkout. The spokeswoman said the two Durham employees had been disciplined for violations of company policies, not union activity.Across the companies, the shift is such that some organizers look back on their union campaigns’ early days with an odd measure of nostalgia.“Thinking about it, I wondered why they didn’t fight harder at our store,” said Maeg Yosef, a worker and an organizer at a Trader Joe’s in Massachusetts that became the company’s first store to unionize last year. “They were like, ‘Oops, you won’ and certified us. It was really hard, but relatively easy compared to the things they could have done.”The fight at Apple followed a similar trajectory. The company did not hide its suspicion of unions when workers at a U.S. store first filed for an election in April 2022, in Atlanta. Managers emphasized that employees could receive fewer promotions and less flexible hours if they unionized, and the company circulated a video of its head of retail questioning the wisdom of putting “another organization in the middle of our relationship.”Apple’s response was similar in two other union campaigns. But although the union withdrew its election filing in Atlanta, unions won elections in both subsequent cases — first in Towson, Md., in June and then in Oklahoma City in October.According to workers, the company became more aggressive once union organizers made inroads. Around the time that employees in Oklahoma City filed for a union election in September, managers at the Kansas City store disciplined several who supported unionizing for issues related to tardiness or absences that other workers typically have not been punished for, union backers said.Terminations began before the end of the year. D’lite Xiong, a union supporter who started at the Kansas City store in 2021 and uses gender-neutral pronouns, said they were told they were being fired just before Halloween. Mx. Xiong went on leave to buy time to appeal the decision, but was officially let go upon returning in January.D’lite Xiong, a union supporter, was fired from an Apple store in Kansas City, Mo. several months ago. Will Newton for The New York Times“It didn’t make sense to me — I had recently gotten promoted,” said Mx. Xiong, who speculated that the company discovered their role in union organizing after they sought to enlist co-workers. “I was praised for doing a great job.”The Communications Workers of America, which represents Apple workers in Oklahoma and has supported workers seeking to unionize the Kansas City store, filed the unfair labor practice charge against the company over the firings in March.John Logan, a professor at San Francisco State University who is an expert on anti-union campaigns, said companies often considered the potential dissatisfaction of customers, investors and even white-collar corporate employees when calibrating their response to a union campaign.“There’s something deeply threatening about the idea that you might be on the verge of losing them,” Mr. Logan said of corporate employees.But even these considerations, he said, tend to fade once a campaign gains traction: “The overriding priority is, ‘We have to crush this.’”This year, more than 70 Starbucks corporate employees placed their names on a petition calling on the company to stay neutral in union elections and to “respect federal labor laws.” The National Labor Relations Board has issued dozens of complaints against the company accusing it of illegal behavior, which the company denies.Howard Schultz, the former Starbucks chief executive, was quick to push back against such accusations while testifying before the Senate Health, Education, Labor and Pensions Committee in March, telling one senator, “I take offense with you categorizing me or Starbucks as a union-buster.”In late April, the labor board issued a complaint accusing the company of failing to bargain in good faith at more than 100 stores.A company spokesman attributed the delay to the union, including its insistence on broadcasting sessions using video-chat software, which could make it difficult to discuss sensitive topics.Apple, too, appears intent on signaling that it is not hostile to labor. The company agreed this year to assess its U.S. labor practices for consistency with its human rights policy. And the company has reached tentative agreements with the union at its Towson store on a handful of issues, such as a commitment that workers at the store will receive any improvement in 401(k) benefits that nonunion retail workers at the company might receive.Yet despite these gestures, there has been little progress on most of the union’s top noneconomic priorities, such as grievance procedures, and the company has sought broad contract provisions that could substantially weaken the union. For example, under a proposed a management-rights clause obtained by The New York Times, Apple would have wide latitude to use nonunion workers and contractors to do work performed by union members, which could shrink union membership. Labor negotiations typically start with noneconomic issues before moving to matters like wages and paid time off.Apple did not comment on the contract negotiations, but the workers in Oklahoma City have characterized their initial bargaining sessions as “very productive.”Mr. Pryzbylski, the lawyer who represents employers, said Apple’s preferred management-rights clause was “about as robust and aggressive as you can make it,” though he said it was not unusual for companies to seek such broad rights in their first contract.Workers expressed frustration at the breadth of the management proposal. “Everyone from the union at the table had never seen one so long,” said Kevin Gallagher, who serves on the bargaining committee in Towson. “They basically wanted to maintain all the rights of not having a union.” More