In Volume 58, Issue 3

Extraordinary Times, Extraordinary Measures: Protecting the Right to Organize in the Age of Algorithmic Management

Melanie Mignucci

In the modern workplace, employers commonly subject their workers to electronic monitoring and algorithmic management practices. Under the National Labor Relations Act (NLRA), this surveillance does not comprise an unfair labor practice because it is not “out of the ordinary.” But this interpretation is mistaken: Algorithmic management’s chilling effect on organizing is the same or worse than that of a manager monitoring emails for hints of a union campaign—a long-established unfair labor practice. The National Labor Relations Board’s (NLRB) former General Counsel has proposed a framework that would make this kind of surveillance presumptively unlawful and require businesses to give notice of the surveillance to employees. This Note argues that the NLRB should go further to address the threat that algorithmic management poses to workers’ right to organize. The Board should find algorithmic management practices unlawful and issue a narrow bargaining order to remedy electronic surveillance’s infringement on workers’ rights under Section 7 of the NLRA. Part I of this Note charts the evolution of algorithmic management and its treatment under existing legal regimes. It illustrates how these practices chill organizing efforts and thus violate Section 8(a)(1) of the Act. Part II proposes remedying this unfair labor practice with a narrow bargaining order. Part III addresses impediments to adopting this framework.

An Old World Discovery for New World Justice: The FSIA Path to Repatriate Stolen Native American Art

Gabriela Landolfo

The legacy of imperialism thrives in the modern European museum. From Alutiiq masks in Berlin to a Pawnee Chief’s remains in Stockholm, museum displays resign tribal emblems to the same fate as the people who produced them: forcibly separated from their culture and assimilated into a foreign one. Although U.S. courts recognize a cause of action under the Foreign Sovereign Immunities Act (FSIA)’s expropriation exception for Nazi-era stolen art claims, these same courts refuse to recognize jurisdiction over repatriation claims for stolen Native American art.

The Art Museum Amendment, a 2016 reform to the FSIA, stands to resolve these jurisdictional challenges by providing a viable repatriation avenue for stolen Native American art. This legislation, this Note argues, establishes an avenue for “targeted and vulnerable groups” to seek retribution against foreign governments who stole work “as part of a systematic campaign of coercive confiscation or misappropriation.” This exception, when read in accordance with the Indian ambiguity canon of statutory interpretation, provides a path toward the return of Native American art and artifacts from foreign museums.

Part I of this Note surveys how the FSIA, the Native American Graves Protection and Repatriation Act (NAGPRA), and the Indian ambiguity canon are used to further indigenous repatriation efforts. Part II demonstrates how these statutes and interpretive methodologies, alone, are insufficient to repatriate Native American stolen art. Part III advocates for interpreting the FSIA through the Indian ambiguity canon, leveraging NAGPRA’s acknowledgement that Native Americans constitute a “targeted and vulnerable group” to establish a repatriation avenue for stolen Native American art under the FSIA.

Restoring Access to Justice: A State-Level Solution to Mandatory Arbitration in Employment

Seth McDowell

For decades, the Supreme Court has favored arbitration agreements in employment and struck down state attempts to limit their use. In so doing, the Court has often cited the Federal Arbitration Act’s (FAA) supposed “liberal federal policy favoring arbitration.” In its 2021–2022 term, the Court broke with prior precedent, signaling that future arbitration decisions will be rooted in the text of, rather than the policy behind, the FAA. This shift leaves room for states to pass statutes which prohibit employers from requiring employees to sign arbitration agreements. One such statute, California’s A.B. 51, was only narrowly struck down as preempted by the Ninth Circuit in Chamber of Commerce v. Bonta, which was decided prior to the Supreme Court’s textualist shift on the FAA. On a strict textualist reading, the FAA only regulates contracts already in existence and says nothing about behavior leading up to the formation of a contract. Thus, statutes like A.B. 51 are now likely to survive preemption due to the Court’s newly textualist position on the FAA. This Note argues that states seeking to limit the use of arbitration agreements in employment should pass statutes like A.B. 51 and can expect that such laws will not be preempted.

Caremark Claims for Workers’ Rights: Repeated Unfair Labor Practices as a Breach of Fiduciary Duty

Michael Sosnick

Delaware courts recognize that corporate directors have a duty of good faith, which includes an obligation to avoid knowingly violating the law, even if doing so could increase profits. In re Caremark International Inc. Derivative Litigation and Stone v. Ritter extended liability to situations in which directors fail to oversee apparent legal risks.

The National Labor Relations Board (NLRB) has repeatedly found unfair labor practices (ULPs) against major corporations such as Amazon and Starbucks during employee unionization efforts, but because of gaps in the enforcement potential of federal labor law, these ULPs largely continue unchecked. This Note argues that a corporation’s directors violate their duty of good faith when the NLRB continually finds ULPs against it. Under the Caremark framework, a history of ULP determinations, ULP settlements, walkouts, or strikes would be red flags that the directors then consciously fail to monitor. While recovery may be insignificant, Caremark claims, brought by plaintiff-shareholders who want corporations to comply with their obligations towards unions, may deter future ULPs and spark organizational change supportive of workers’ rights.

Part I documents the prevalence of anti-union ULPs, outlines the duty of good faith in Delaware corporate law, and briefly explains Caremark claims. Part II describes a Caremark claim for repeated ULPs. Part III highlights the benefits of institutional shareholders bringing such claims and offers policy proposals that would increase the power of shareholders to hold corporations accountable for illegal acts.