Andrew Midgen

Author's details

Name: Andrew Midgen
Date registered: January 14, 2013


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Latest posts

  1. Remembering Marvin Miller: A Glimpse Inside the Memorial of a MLBPA Legend — January 23, 2013
  2. Federal Judge, Former EEOC Lawyer, Offers Clerkship… for Free — January 14, 2013

Author's posts listings

Jan 23

Remembering Marvin Miller: A Glimpse Inside the Memorial of a MLBPA Legend

Fellow Student-Author Krystyna Baumgartner and I had the privilege of attending the Major League Baseball Players Association’s (“MLBPA”) memorial for Marvin Miller on Monday, January 21st at NYU’s School of Law. The memorial was a glorious tribute to the life and legacy of one of the most important and successful leaders in labor history.


The memorial featured thirteen speakers with clips of Marvin Miller inserted in between. The first speaker was Richard Moss, prominent General Counsel of the MLBPA after Miller was elected Executive Director in 1966.  Moss stated that Miller was especially gifted in explaining difficult concepts in a way that everyone could understand, without talking down to the listener, a skill that was echoed by speakers throughout the night.


Executive Director of the National Hockey League Players Association, Donald Fehr, also spoke. Fehr reflected on the emotional side of Marvin Miller that he deliberately concealed from the public. Miller was a brilliant tactician, even outside the negotiating room. For example, Fehr noted that Miller would intentionally speak quietly in order to make the players strain to pay attention.  Fehr also notably addressed why Marvin Miller is still remembered today, more than 30 years after he retired. He argued that Miller built the MLBPA into a symbol of what a union could be, if run properly. Since former President Regan’s firing of 11,000 striking air traffic controllers in 1981, there has been a general acceptance of attack on labor unions from management, which continues today. Despite the hostile environment, the MLBPA successfully struck in 1981 and 1994.  Finally, Fehr stated that Miller’s work to get individual members to take ownership of their union is the reason for the MLBPA’s success and claimed that unions in other industries would be much better off today if they were run with similar principles.


Of particular interest was the bevy of both current and former players in attendance. Speakers included Hall of Fame members Dave Winfield and Joe Morgan. Many players echoed sentiments that Miller’s most difficult job was to organize a group of individuals who feared for their job security if they joined a union and who wanted to focus on playing baseball rather than deal with labor relations issues. It took several years for the players to realize what could be gained from union solidarity. Buck Martinez and Jim Bouton described Miller as an educator. Current Director of Player Relations, Tony Clark, noted the lasting appreciation that the players have for Marvin Miller and the principles he stood for, inviting several current players in attendance to stand. Just about every single player expressed his offense to Miller’s exclusion from the Hall of Fame.


Finally, the clips of Marvin Miller were especially poignant. During his vignettes Miller expressed pride in his involvement with numerous unions and noted the value of speaking to each and every member. He also noted the conditions players faced prior to taking ownership of their union, and cautioned the players to not take their current position for granted. Miller stressed that educated, involved union members are necessary for the continuing success of the MLBPA.

Jan 22

St. John’s Students Win 4/6 NYSBA Labor & Employment Section Awards







On January 26, 2013, the Labor and Employment Law Section of the New York State Bar Association will present three third-year students from St. John’s, Amanda Jaret, Andrew Midgen, and Alyssa Zuckerman, with awards at its annual meeting.

Amanda Jaret, Secretary of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the first place winner of the Samuel M. Kaynard Memorial Student Service Award and second place winner in the Dr. Emanuel Stein and Kenneth D. Stein Memorial Writing Competition for her paper, titled “Other Mutual Aid Or Protection”: Collective Legal Claims as Concerted Activity in D. R. Horton, Inc. and Beyond. Amanda has worked as a research assistant and Junior Fellow for the Center during her entire tenure at St. John’s, supported by the 2011 John Boyd Scholarship, the 2012 Professor Lawrence Joseph Scholarship, and the Cesar Chavez Memorial Scholarship, awarded to the graduating third-year law student with the highest grades in the labor and employment law curriculum. She has worked for the United Auto Workers in Detroit, Michigan and for Cohen, Weiss and Simon LLP, a union-side labor law firm.

Andrew Midgen, Co-President of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the first place winner of the 2012 Dr. Emanuel Stein and Kenneth D. Stein Memorial Writing Competition. His winning paper, titled The Future Scope of the Antitrust Exemption in Professional Sports, addresses a controversial and developing area of labor and employment law that has captured national attention during recent collective bargaining agreement negotiations for professional sports teams and players in the National Football League and, most recently, the National Hockey League. Among Andrew’s previous honors and accomplishments are the Inaugural Borrelli and Associates Scholarship and prestigious internships with UNITE HERE! Local 100, the United States Department of Labor Office of the Solicitor, and the National Labor Relations Board Division of Judges.

Alyssa Zuckerman, Co-President of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the second place winner of the 2012 Samuel M. Kaynard Memorial Student Service Award. One of Alyssa’s chief initiatives as Co-President includes the successful launch of a new blog, the Center for Labor and Employment Law Forum (this blog). The Service Award also recognizes her consistently impressive leadership of the Society and the many successful events she has coordinated for the Center during her time at St. John’s. Alyssa has also received many other notable honors for her contributions to labor and employment law, including the 2012 Coca-Cola Refreshments Scholarship, which enabled Alyssa to work as a Summer Associate with Coca-Cola’s Labor Relations Department, the Cesar Chavez Memorial Scholarship, and an internship with Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, a workers’ compensation law firm.

These three students follow in the footsteps of many of their predecessors who have received similar recognition from the New York State Bar Association. The students’ successes are a testament to the strength of St. John’s labor and employment law curriculum and the stalwart guidance and mentoring of Professor David L. Gregory.

Jan 14

Federal Judge, Former EEOC Lawyer, Offers Clerkship… for Free

Judge William Martinez, a 2010 appointee to the United States District Court for the District of Colorado, recently solicited applications for year-long federal clerkships. Martinez is provided funding for two clerkships, but he desired a third. Without federal funding for a third applicant, Judge Martinez seeks an individual willing to work for no salary. The position was advertised as a “gratuitous service appointment.” To obtain employment, a candidate would have to waive any claim to compensation of any form.

The Fair Labor Standards Act (“FLSA”) establishes several standards to protect workers, including the imposition of a minimum wage for covered nonexempt employees. The federal minimum wage is currently $7.25 per hour.

In order for this minimum wage provision to apply, the employment at issue must be covered by the FLSA, of which there are two forms: “enterprise coverage” and “individual coverage.” Employment as a federal judicial clerk appears to constitute enterprise coverage, which includes employment with “the Government of the United States.”[1]

In addition, the worker must be nonexempt. FLSA Section 213(a) lists a significant number of exemptions, however even the “learned professional exemption” would not apply as the worker will not be compensated in excess of $455 per week.[2]

Further, in order for the FLSA to apply there must be an employment relationship with an “employer” and an “employee.” Essentially, employers often argue that the worker is an independent contractor rather than an “employee.” Courts have utilized the “economic realities test” for the purposes of the FLSA.[3]

The factors considered are as follows:

  • The extent to which the services in question are an integral part of the employer’s business
  • The permanency of the relationship
  • The amount of the alleged contractor’s investment in facilities or equipment
  • The nature and degree of control by the principal
  • The alleged contractor’s opportunities for profit and/or loss
  • The amount of initiative, judgment or foresight in open market competition with others required for success of the independent enterprise
  • The degree of independent business organization and operation

The factors substantially support there being an employment relationship here, rather than a clerk constituting an independent contractor.

Finally, the government can analogize to unpaid internships, which have been permitted under FLSA if satisfying certain requirements. These factors are considered in light of the FLSA’s definition of “employ,” defined as “suffering or permitting to work.”[4]

The criteria are as follows:

  • The training is similar to the training which would be given in an educational environment
  • The experience is for the benefit of the trainee
  • The trainee does not displace any regular employee and works under close supervision of existing staff
  • The employer providing the training derives no immediate advantage from the activities of the trainee and in some cases its operations may be impeded
  • The trainee is not necessarily entitled to a job at the conclusion of the training
  • Both the employer and the trainee understand that the trainee will not be paid any wages for their time spent as a trainee.

If any of one these criteria are not met, the worker would be considered an employee under the FLSA and therefore entitled to minimum wage.[5]

Under these circumstances, there is the potential that these factors will be met and therefore this employment relationship would be exempt from FLSA minimum wage requirements. The strictness with which a court evaluates these factors would play a crucial role.

As Professor Paul Campos notes, this employment relationship may violate “the letter and spirit of the FLSA.”

“Hiring one person to do a paid job, while at the same time hiring another person through exactly the same hiring process to do exactly the same job, but not paying him or her to do it, is precisely what the statute was designed to prohibit.”[6]

However, at this point it is unclear how this observation fits into the criteria regulating unpaid internships.

A major problem with this entire calculation may be the unwillingness of the law clerk to cooperate in any action against the employer. Considering the state of the legal job market, many will surely apply for a prestigious position like this one regardless of compensation. Law students frequently take internships that probably violate the FLSA. As Professor Campos wisely observes, this “is just another way of ensuring that only the children of the rich have access to [prestigious legal jobs].”[7]




[1] See 29 U.S.C. § 203(x)

[3] See e.g. Donovan v. DialAmerica Mktg. Inc., 757 F.2d 1376 (3d Cir. 1985)

[4] See 29 U.S.C. § 203(g)

[5] See Walling v. Portland Terminal Co., 330 U.S. 148 (1947)