Volume 59, Issue 3

By Coley Hungate

The National Labor Relations Act provides substantial legal protections for employees to organize, collectively bargain, and engage in concerted activity for mutual benefit.  Section 2(3) of the Act, however, explicitly excludes independent contractors from NLRA coverage.  This regime enables employers to strategically misclassify workers as independent contractors, rather than as statutory employees, thereby denying them the Act’s protections.

The Association of Tennis Professionals has exploited this gap in coverage since it became the sport’s governing body in the 1990s.  While the ATP holds itself out as a professional association composed of independent contractors, this Note argues that professional tennis players should be legally classified as employees of the ATP under the NLRA.

Part I outlines the history of professional tennis, the modern ATP Tour regime, and the labor law framework that applies to independent contractors.  Part II applies the NLRB’s test for independent contractors to professional tennis players and argues that players should be considered statutory employees of the ATP.  Part III addresses how NLRA coverage would allow ATP players to engage in collective action and bargain for the work conditions they actually want without fear of repercussion.

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Airlines have historically been subject to close government scrutiny due to their oligopolistic nature and essential role as common carriers.  Today, however, America’s dominant airlines charge exorbitant fares without meaningfully improving efficiency, service, or onboard experience.  Airlines use sophisticated pricing algorithms to push these fares higher and maximize the profit per traveler.

The use of algorithms in setting prices has received antitrust scrutiny in other sectors.  This Note argues that algorithmic pricing tools in the commercial aviation industry may facilitate price collusion by enabling the exchange of nonpublic fare data between competitor airlines.  Although traditional antitrust tools alone fall short of fully mitigating the potential harms posed by airline pricing algorithms, the Department of Transportation possesses distinct competition regulatory authority in the Federal Aviation Act.  This authority can and should serve as a powerful tool to regulate the use of pricing algorithms in setting airfares.

Part I of this Note introduces the mechanisms of airline pricing at issue and explores the limits of the traditional antitrust laws in addressing competitive harm posed by these systems.  Part II details the history of the Department of Transportation’s regulatory authority and its current scope.  Part III recommends that the Department of Transportation regulate the use of pricing algorithms as potential unfair methods of competition through an enforcement program under 49 U.S.C. § 41712, structured by guidance documents tailored to algorithmic pricing and reporting mechanisms under 49 U.S.C. § 41309.

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By Ian Gaskins

The mutual aid and protection clause of the National Labor Relations Act (NLRA) protects workers from employer retaliation when engaged in “concerted activities for the purpose of . . . mutual aid or protection.”  In Eastex v. NLRB, the Supreme Court recognized that political advocacy may also be protected under the clause when the advocacy advances “employees’ interests as employees.”  This Note contends that, by framing climate change as a workplace issue, workplace climate advocacy can be protected under the mutual aid and protection clause.

Part I of this Note explores the impacts that climate change will have on workers, focusing on its impacts on occupational health and safety, and finances, and documents the ways that unions, workers, and governments have begun to recognize and address climate change as a workplace issue.  Part II lays out the standard for when political activity is protected under Eastex.  Applying this, Part III argues that, when properly framed, workplace climate advocacy falls within Eastex’s ambit.  To illustrate the bounds of this approach, Part III also explores the ways that workplace climate advocacy could fall outside of the protections of Eastex.  Finally, Part IV briefly explores the legal viability and effectiveness of a variety of forms of workplace advocacy that climate advocacy could take in practice, such as educational campaigns and climate strikes.

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