LR&EL Society

Author's details

Name: Labor Relations & Employment Law Society
Date registered: October 19, 2016

Latest posts

  1. New York Court of Appeals Rejects Discrimination Claims for Mistaken Perception of Alcoholism — January 4, 2018
  2. Second Circuit Affirms Flexible Analysis for Determining “Employee” Status for Unpaid Interns Under the FLSA — January 4, 2018
  3. Got Breastmilk? Lactation a “Related Medical Condition” Under the Pregnancy Discrimination Act of 1978 — October 18, 2017
  4. Uber’s Mounting Labor Issues and What it Means for Business — July 29, 2017
  5. The Neil Gorsuch Effect on SCOTUS Labor Law Jurisprudence — March 6, 2017

Most commented posts

  1. The Roast of Professor Gregory: A Celebration of 30 Years of Teaching at St. John’s Law: April 5, 2013 — 2 comments
  2. Foul Shot: An Employment Law Perspective on the Rutgers Basketball Situation, Part One — 1 comment
  3. Congratulations to the 2013 Graduates! — 1 comment
  4. Around the Web – Labor Day 2013 — 1 comment
  5. The Silence of the Arenas: The Tangential Costs of Labor Disputes — 1 comment

Author's posts listings

Jan 04

New York Court of Appeals Rejects Discrimination Claims for Mistaken Perception of Alcoholism

By: Samantha Guido

In a recent opinion, Makinen v. City of New York,[i] the New York Court of Appeals held that a “mistaken perception of alcoholism” is not a disability under the New York City Human Rights Law (“NYCHRL”).[ii]  In this case, the plaintiffs, both police officers employed by the New York Police Department (“NYPD”), were falsely accused of abusing alcohol by their former partners and were referred to NYPD’s Counseling Services Unit.[iii]  Plaintiff Nardini was diagnosed as a sufferer of alcohol abuse and Plaintiff Makinen was diagnosed with alcohol dependence.[iv]  Both plaintiffs accepted treatment after threats of disciplinary action,[v] however, the Court recognized that neither plaintiff was an alcoholic.[vi]  The plaintiffs argued that the defendant, the NYPD, discriminated against them by “subjecting them to adverse employment actions based on the illegitimately perceived disability of alcohol dependence and/or abuse.”[vii]  The Court rejected this argument and held that the plaintiffs did not have a disability within the meaning of the NYCHRL.[viii]

This holding was based solely on the Court of Appeals’ interpretation of sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code.[ix]  In particular, the case depended upon whether a mistaken perception of alcoholism constituted a disability under the Code.[x] Section 8-102(16)(c), says the Court, is unambiguous and therefore is “only open to one reasonable interpretation: the disability of alcoholism ‘shall only apply to a person who (1) is recovering or has recovered and (2) is currently is free of such abuse.’”[xi]

The case required the Court to interpret the Administrative Code, which contains the NYCHRL.  To do this, the Court needed to look to the Local Civil Rights Restoration Act of 2005 (“Restoration Act”).  The Restoration Act amended the NYCHRL because the City Council felt that the NYCHRL was being construed too narrowly and wanted to ensure that the NYCHRL is protecting those who were being discriminated against.[xii]  The Restoration Act’s purpose was to “‘clarify the scope of [NYCHRL]’” and provided two rules of construction for the NYCHRL that directed the court to liberally construe the NYCHRL.[xiii] However, as the dissenting opinion observed, the majority contravened the principles of construction as mandated by the Restoration Act and neglected to include a mistaken perception of alcoholism within the definition of a disability covered by the NYCHRL.[xiv]

It seems possible that the City Council will consider amending the definition of a disability within the Administrative Code to include a mistaken perception of alcoholism. The City Council wants, and has expressly stated, that the Human Rights Law was to be construed liberally in favor of discriminated plaintiffs.[xv] The majority of the Court of Appeals understood that it could not rewrite the narrow definition of disability provided for in the Administrative Code.[xvi]  Instead, the City Council should amend the definition to achieve its goal of protecting plaintiffs who have experienced discrimination.

[i] 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[ii] Id.

[iii] Id.

[iv] Id.

[v] Makinen v. City of New York, 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Makinen v. City of New York, 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Makinen v. City of New York, 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[xvi] Id.

Jan 04

Second Circuit Affirms Flexible Analysis for Determining “Employee” Status for Unpaid Interns Under the FLSA

By: Samuel Wiles

In December 2017, the Second Circuit affirmed that unpaid interns, in some circumstances, are not “employees” under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) and were thus not entitled to receive the minimum wage.[i]

In Wang v. The Hearst Corp., the Court of Appeals found that the Hearst Corporation (“Hearst”) furnished bona fide, for-credit internships and did not exploit student-interns to avoid hiring and compensating entry-level employees.[ii]  Hearst offered unpaid internships across its various print magazines and each of the plaintiffs interned with Hearst during the semester, the summer, or between graduation and beginning graduate school.[iii]  The plaintiffs received approval for course credit before starting their internships, although not every plaintiff ultimately received the credit.[iv]  Some testified that their internship responsibilities included “tasks related to their professional pursuits” through which they “gained valuable knowledge and skills.”[v]  However, some interns complained that the tasks were “menial and repetitive” and they did not “receive close supervision or guidance” and received “little formal training.”[vi]

Under the FLSA, an “employee” is an “individual employed by an employer,” but not every individual who performs a service for an employer, like an unpaid intern, is an “employee.”[vii]  The analysis depends upon the “economic reality” of the relationship between the unpaid intern and the employer.[viii]  To aide in analyzing whether an unpaid intern is an “employee,” the court recognized the “primary beneficiary” test from its previous ruling in Glatt.[ix]  The test utilizes seven “non-exhaustive considerations specific to the contest of unpaid internships,” each of which must be considered by weighing and balancing the totality of the circumstances and none of which is dispositive to the ultimate determination.[x]  Courts applying these factors acknowledge that internships may directly benefit the employer “so long as the intern receives identifiable educational or vocational benefits in return.”[xi]

The court then proceeded to analyze the facts in relation to the factors; favoring the plaintiffs on some and Hearst on others.[xii]  Ultimately, the Court did not grant summary judgment and concluded that the interns were not “employees.”[xiii]  The Court ruled that the “employee” status was a matter of law, which permits district courts to strike a balance on the totality of the circumstances.[xiv]  The touchstone, the court noted, is that district courts may rule on Glatt questions if it can “weigh the . . . factors on the basis of facts that are not in dispute.”[xv]

In reaffirming the flexible Glatt test, the Second Circuit permits employers to continue offering unpaid internships.  However, with the flexible and factual nature of the analysis, cases can easily be argued either way.  This ambiguity introduces a risk of litigation for employers who choose to hire unpaid interns. Employers who hire unpaid interns should adopt internal standards that clearly inform applicants or interns that the position is not an indication or guarantee of future employment to comply with the Second Circuit’s factor analysis.


[i] Wang v. The Hearst Corp., 2017 WL 6062241 (2d Cir. Dec. 8, 2017). The Southern District denied the plaintiffs’ summary judgment motion, although the Second Circuit initially vacated the decision due to its almost concurrent ruling in Glatt v. Fox Searchlight Pictures. Wang v. Hearst Corp., 617 F.App’x 35, 37 (2d Cir. 2015).

[ii] Wang, 2017 WL 6062241 at *1.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id. at *2.

[vii] Wang, 2017 WL 6062241 at *2.

[viii] Id.

[ix] Id. The “primary beneficiary” analysis is a subjective and highly factual analysis that focuses on whether the employer or the intern “is the ‘primary beneficiary’ of the relationship. Michael A. Hacker, Permitted to Suffer for Experience: Second Circuit Uses “Primary Beneficiary” Test to Determine Whether Unpaid Interns Are Employees Under the FLSA in Glatt v. Fox Searchlight Pictures, Inc., 57 B.C. L. Rev. E-Supplement 67, 69 (2016).  In adopting this analysis, the Second Circuit in Glatt rejected the Department of Labor’s six-part test because it was “too rigid for” the court’s precedent. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536 (2d Cir. 2015).

[x] Under Glatt, the considerations are: (1) “The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa; (2) The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions; (3) The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit; (4) The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar; (5) The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning; (6) The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and (7) The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.” Wang, 2017 WL 6062241 at *3 (citing Glatt, 811 F.3d at 536–37).

[xi] Wang, 2017 WL 6062241 at *3.

[xii] Id. at *3—*4.

[xiii] Id. at *5.

[xiv] Id.

[xv] Id.

Oct 18

Got Breastmilk? Lactation a “Related Medical Condition” Under the Pregnancy Discrimination Act of 1978

By: Natalie D. Russell

In 2015, nearly four million children were born;[1] more than half of those children were born to mothers in the labor force.[2] These mothers do not resign during or after pregnancy.  Instead they work, seeking accommodations as needed.  During and after pregnancy, women are at risk of gestational hypertension, preeclampsia, post-partum hemorrhage,[3] post-partum depression and infections, to name a few medical conditions.  Prior to the Pregnancy Discrimination Act of 1978 (“PDA”), women were not offered protection against workplace discrimination for these pregnancy-related medical conditions.  The PDA amends Title VII to prohibit discrimination on the basis of pregnancy.[4] The PDA expands the definition of “because of sex” and “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.”  Unfortunately, the PDA fails to give employers guidance on what conditions are covered under the expansive phrase “or related medical conditions.”  Specifically, many new mothers face a medical condition—lactation—that employers may dismiss as a choice rather than a medical condition.

As a matter of first impression, in E.E.O.C. v. Houston Funding II, Ltd.,[5] the Fifth Circuit held that lactation is a “related medical condition” under the PDA.[6] The Court relied on the plain meaning of “medical condition,” defined in the McGraw–Hill Concise Dictionary of Modern Medicine as “[a]ny condition—e.g., physiological, mental, or psychologic conditions or disorders.”[7] The broad dictionary definition of “medical condition” permitted the Court to justifiably conclude that lactation is a medical condition protected under the PDA.  Thus, any discrimination based on a woman’s need to express milk is a violation of the PDA.[8]

Upon returning to work, a new mother may face an employer that provides unreasonable medical accommodations.  Recently, the Eleventh Circuit in Hicks v. City of Tuscaloosa [9] dealt with the issue of whether breastfeeding is a medical condition protected under the PDA.[10] Hicks, a police officer for the city of Tuscaloosa, returned to work after giving birth and within two weeks she was demoted to a position that offered less pay, required her to work on days that she previously held off, and did not grant her the benefit of a vehicle.[11] After the demotion, Hicks requested a workplace accommodation that would relieve the bullet proof vest requirement thereby allowing her to express milk while on duty.[12] This accommodation was not uncommon, as other employees with similar work restrictions were granted the accommodation of working desk duty.[13] Unfortunately, Hicks was not granted an accommodation but was told that she had two choices: (1) not wear the bullet proof vest, or (2) wear a custom-made vest.[14] Hicks did not consider these options safe, especially the custom-made vest that was known to be ill-fitting and less protective.[15] She resigned immediately.[16] The Eleventh Circuit held that this lack of an accommodation constituted constructive discharge and a violation of Title VII.[17] Although an employer does not have to provide special accommodations to breastfeeding mothers, an employer must afford them the same accommodations that are offered to similarly situated employees.[18]

New moms are not expecting their employer to construct a nursing room; however, they are holding employers accountable for not acknowledging that lactation is a “related medical condition.”  It is not a choice; it is a gender-specific condition that must be protected from unlawful discrimination.  It appears the courts are moving in the right direction in protecting women’s right to not be discriminated against because they are lactating.  A woman should not have to choose between breastfeeding her newborn and employment.  The protection of the lactation is a step in the right direction.  As case law continues to develop, women across America are rooting for expanded rights for women as they balance a new baby and work.


[1] Nat’l Ctr. for Health Statistics, Ctrs. for Disease Control and Prevention, National Vital Statistics Report 1 (2017).

[2] According to the United States Census Bureau, about 63% of the female labor force gave birth in 2016. See 2016 American Community Survey 1-Year Estimates, U.S. Census Bureau, (last visited Oct. 8, 2017).

[3] Pregnancy Complications, CDC (June 17, 2016),

[4] 42 U.S.C. § 2000e.

[5] 717 F.3d 425 (5th Cir. 2013).

[6] Id. at 428.

[7] Id.

[8] Id. at 430.

[9] No. 16-13003, 2017 WL 3910426 (11th Cir. Sept. 7, 2017).

[10] Id. at *4.

[11] Id. at *1.

[12] Id. at *2.

[13] Id. at *2.

[14] Id. at *2.


[16] Id.

[17] Id. at *3-4.

[18] Id. at *5.

Jul 29

Uber’s Mounting Labor Issues and What it Means for Business

By: Samuel Wiles

Recently, Uber has suffered an array of public relations setbacks due, in part, to poor treatment of its own workforce.  Consumers today are highly conscious of the internal operations of businesses and sometimes react to negative press affecting those businesses. Issues facing Uber include breaking strikes, classifying drivers as independent contractors, and fostering a hostile work environment. If these issues are not quelled sooner than later, they could cause lasting damage to Uber’s reputation.

Uber’s labor relation issues have spilled beyond its offices, drawing the ire of social activists and unionized labor for either intentionally or inadvertently attempting to break a taxi strike. After President Trump enacted his “travel ban,” the New York Taxi Workers Alliance stopped service to JFK airport because its workforce, which has a sizeable Muslim representation, opposed the ban.[1] Simultaneously, Uber deactivated its surge pricing for rides to and from JFK, thus undermining the taxi workers’ strike.[2] This move spurred some users to delete the Uber app in protest, however, the protest was mostly directed at Uber’s apparent approval of President Trump’s act and less at the negative effect Uber’s actions had on taxi workers and similarly situated workers.[3] Ian Bogost notes in the Atlantic, “political action and political anger still appear far more easily motivated by hostility against identity than against material,” like labor relations in in this case.[4] Here, many Uber users knew to be mad at Uber; they just did not know why to be mad at Uber. But, Uber’s choice to disrupt its competitor’s strike displays hostility towards organized labor that goes beyond its own offices.

Uber also seeks to exert more power over its drivers by having them classified as independent contractors, instead of employees. By classifying its drivers as independent contractors, Uber is effectively able to prevent those drivers from unionizing and and engaging in collective  bargaining.[5] However, some drivers have fought back, making modest gains against Uber. In New York, for example, an administrative law judge ruled the drivers were Uber employees because “Uber exercised sufficient supervision and control over substantial aspects of” drivers’ work.[6]  That said, Uber has also had multiple victories across the country and some states have passed legislation declaring that ride-sharing drivers are contractors, thus leaving the status of the drivers open for debate.[7]

Top officers and other staff, who are categorically considered to be employees, have recently alleged that   Uber, as a corporation, fosters a hostile work environment and that there is pervasive sexual harassment in the workplace. Examples of this include employees groping female co-workers, homophobic slurs, and violent physical threats.[8]  These incidents do not paint Uber in the best light, but to its credit, Uber recently completed a full assessment of its workplace practices and promised to implement those recommendations in an attempt to improve its workplace culture

Uber’s users, and the general public for that matter, react to the way Uber treats its workforce. After the incident at JFK in January, at least 200,000 Uber users deleted the app (although it is plausible many of those re-downloaded it soon after). Additionally, Uber’s main competitor, Lyft, has eaten away at Uber’s commanding share of the market.[9]  If Uber is serious about improving not only its image and profitability, but also the quality of life for all its employees (and contractors) it will move to improve its workplace culture and labor relation practices in the future. If it does not, it is possible that Uber’s short-term losses to its competitors could become endemic and could severely weaken the economic success of the company.



[1] Ian Bogost, Is #DeleteUber Good for Workers’ Rights?, The Atlantic Monthly, Jan. 31, 2017,

[2] Id.

[3] Id.

[4] Id.

[5] Dan Rivoli, N.Y. judge grants Uber drivers employee status, New York Daily News, June 13, 2017,

[6] Id.

[7] Id.

[8] Mike Isaac, Inside Uber’s Aggressive, Unrestrained Workplace Culture, New York Times, Feb. 22, 2017,

[9] Adam Vaccaro, With Uber in Chaos, is this Lyft’s Time to Shine?, The Boston Globe, June 15, 2017,

Mar 06

The Neil Gorsuch Effect on SCOTUS Labor Law Jurisprudence

By Michael C. DeBenedetto III.
Judge Neil Gorsuch of the Tenth Circuit of the United States Court of Appeals was recently nominated to the Supreme Court by President Donald Trump to replace the late Antonin Scalia. In this commentary, I address the questions of how Judge Gorsuch would likely lean over questions surrounding the major cases of Abood v. Detroit Board of Education[1] and Friedrichs v. California Teachers Association[2] if such cases appeared again. Friedrichs builds off Abood, which was recently heard by the Supreme Court, but resulted in a deadlock decision, thus binding the circuit court decision.

In Abood, the Court held that nonunion members had the freedom to opt out of union political donations if they chose not to support the union’s endorsed candidate. However, the Court explained, “Insofar as the service charges are used to finance expenditures by the Union for collective-bargaining, contract-administration, and grievance-adjustment purposes, the agency-shop clause is valid.” The Court further explained that nonpolitical activities relating to union representation do not violate First Amendment rights, and the union would maintain the right to collect from nonunion members for the purpose of these resources.

Friedrichs addresses some of the issues raised in Abood, most notably in terms of payment of union dues and the “free-rider” concept. In Friedrichs, plaintiffs were public school teachers who resigned their union membership and objected paying the nonchargeable portion of their yearly agency fee. They believed that being required to pay the fee, even though they were no longer union members, violated their rights to freedom of speech and association under the First and Fourteenth Amendments to the Constitution. The court explained, “in Abood, the Supreme Court upheld the constitutional validity of compelling employees to support a particular collective bargaining representative . . . .” The Ninth Circuit affirmed the judgment of the district court.

Some of Judge Gorsuch’s cases may be revealed in his leanings on potential union dues cases and free speech. The cases are Laborers’ International Union Local 578 v. NLRB[3] and Hobby Lobby v. Sebelius[4]. After reviewing these cases, I believe it is likely he would lean towards the employee side and reject the system compelling nonunion members to pay agency fees kept intact by Friedrichs.

Laborers’ International Union Local 578 concerned a union that forced an employer to discharge an employee because of his failure to pay union dues. The Tenth Circuit heard this case on appeal. Judge Gorsuch, writing for the majority, explained that the standard to invoke a union-security clause that allowed for an adverse action to be taken against an employee was not met. It required the union to: (1) provide the employee with actual notice of the precise amount due, including the months for which dues are owed; (2) explain how it computed the amount due; (3) give the employee a reasonable deadline for payment; and (4) explain to the employee that failure to pay will result in discharge.

The letter communicated to the employer concerning the dismissal of the employee did not meet the above requirements. Judge Gorsuch cited the NLRA and explained that the failure to meet these elements “restrains or coerces” the employee from his right to refrain from union membership. When considered with the Friedrichs facts, if a reasonable basis is established, one may foresee Judge Gorsuch siding with the rights of the employee to not be compelled to pay the agency fees.

A viable counterargument, however, could be found later in the opinion where Judge Gorsuch emphasizes the importance of his philosophy of judicial restraint and likens the role of the court as an “instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call.” In considering Abood and Friedrichs, Judge Gorsuch may be hesitant to impose his personal opinion on what he views as the optimal status of the employee and union relationship because of the settled Abood and Friedrichs law. However, I find his clear prioritizing of the rights of the employee will be more heavily considered if given the chance to address the question of agency fees.

The question of free speech also ties into the conflict over agency fees. Raymond J. Nhan and David Dewhirst have discussed, in “Friedrichs Redux,” that Judge Gorsuch’s opinion in Hobby Lobby—when it was at the circuit level—may also give insight into his leanings regarding subsidizing speech.[5] In Hobby Lobby, Judge Gorsuch concurred in the decision granting freedom for closely held owners of Hobby Lobby Corporation from having to subsidize certain categories of abortifacients and contraceptives for their employees. He explained, “As the Greens [owners] describe it, it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible.” It is important to focus on Judge Gorsuch’s emphasis on the terms “personal involvement in facilitating access.” He is favoring the rights of the individuals in these facts. It is not unreasonable to consider he might be open to the personal decisions and rights of the employees to reject paying agency fees as nonunion members considering they do not want to be a part of the union.

In short, based on his opinions in Local 507 and Hobby Lobby, Justice Gorsuch would likely side against unions over payment of agency fees at the Supreme Court level.

[1] 431 U.S. 209 (1977).

[2] 136 S Ct 1083 (2016), reh denied 136 S Ct 2545 (2016).

[3] 594 F3d 732 (10th Cir 2010).

[4] 723 F3d 1114 (10th Cir 2013).

[5] Raymond J. Nhan & David Dewhirst, Friedrichs Redux, The Federalist Society Blog                (February 2, 2017),

Jan 30

Minor Leaguers, Minor Wages, Major Problems

By Joseph Gentile.

Major League Baseball (“MLB”) and the Major League Baseball Players Association (“MLBPA”) recently came to terms on a new collective bargaining agreement (“CBA”), which will last through the 2021 MLB season. This means that, by the end of the next CBA, the MLB will have gone twenty-six consecutive seasons without a work stoppage.

The MLBPA represents players designated on the forty-man major league roster; so what does that mean for Minor League Baseball players who fell short of making the forty-man roster? Another year of making less than minimum wage.

Minor Leaguers are not entitled to minimum wage or overtime because of an exemption in Section 213 of the FLSA. It provides that minimum wage and overtime provisions do not apply to employees of an “amusement or recreational establishment” if the establishment does not operate more than seven months per year, or if the employer can prove that total revenue in one-half of the preceding year was less than one-third of the total revenue in the other half of the same preceding year.

At the lowest level of the Minor Leagues, players earn wages that amount to less than $4 per hour if players received their regular hourly wage for the first forty hours of the week and time-and-a-half for the remaining 20 hours. At the highest level of the Minor Leagues, players earn a salary that puts them barely above minimum wage.

Unionization is one possible way to combat this problem, but asking minor leaguers to pay union dues out of their already-miniscule salaries is asking a lot. Additionally, the ultimate goal of these minor leaguers is to get out of the Minor Leagues as quickly as possible, which makes it difficult to gain momentum in the effort to unionize Minor Leagues.

There have been efforts to unionize the Minor Leagues in the past, but no real progress was made. The only hope would be fore a large union to come in and organize, but the players are more likely to want to remain quiet while trying to advance to the Major Leagues. If a Major League team were to promote an advocate for Minor League unionization, it would surely cause more distractions than the Major League team may be willing to handle.

It seems as if Minor Leaguers will continue to earn less than minimum wage until MLB owners are ready to step in, which, unfortunately, does not seem likely to happen soon.

Nov 16

NLRB Adjusts Reimbursement Calculation for Unlawfully Discharged Employees

By Natalie Russell.

In a recent decision issued by the National Labor Relations Board (the “Board”), King Soopers, Inc. and Wendy Geaslin, persons who were wrongfully terminated may receive full reimbursement of search-for-work and interim employment expenses. Case 27-CA-129598 (2016). For over 80 years, the Board has awarded search-for-work damages. However, the Board’s traditional calculation of these damages failed to make a dischargee whole because the search-for-work damages were considered offsets to a dischargee’s interim earnings. This meant that if a dischargee spent more money searching and relocating for an interim job than they actually earned at that job, they would only be repaid up to the amount of the interim wages they earned. Id. at 5. In King Soopers, Inc., the Board found that the traditional approach, which limited the damages, not only “fail[ed] to make victims of unlawful discrimination whole . . . [but also] discourage[d] discriminatees in their job search efforts.” Id. at 5.

Faced with the challenge of balancing fairness to the wrongfully terminated with the authority granted to the Board through Section 10(c) of the National Labor Relations Act (the “Act”), the Board concluded that it has “ ‘broad discretionary’ authority to order remedies that will ‘effectuate policies’ of the Act.” Id. at 3 (quoting NLRB v. J.H. RutterRex Mfg., 396 U.S. 258, 262–63 (1963)). The Board not only has a duty to the wrongfully terminated, but also must create deterrents so that employers are discouraged from engaging in unlawful and discriminatory conduct. Id. at 3. By granting make-whole relief in the form of full reimbursement of search-for-work and interim-employment damages, the Board has fulfilled its duty.

The story of Juana Perez is a primary example of the positive impact make-whole relief will have on the wrongfully terminated. Ms. Perez worked at a location, earning $1,000 per month prior to her unlawful discharge. In seeking interim employment, Ms. Perez spent $6,000 on relocation costs, training, and job searching. She ultimately found employment, earning $750 per month for two months. Under the Board’s traditional reimbursement approach, Ms. Perez would receive only $1,500 because the search-for-work expenses would only be offset against the interim earnings. Id. at 5. However, under the new make-whole formula, Ms. Perez would be reimbursed for the full $6,000 of search-for-work expenses, regardless of how much she earned from her interim employment.

By providing full reimbursement of search-for-work and interim employment benefits, the Board assures that the wrongfully terminated employees are made whole.

Oct 20

Peggy Browning Fund: 18th Annual National Law Students Workers’ Rights Conference

By Samantha Ojo.

I had the pleasure of attending the 18th Annual National Law Students Workers’ Rights Conference, sponsored by the Peggy Browning Fund. The Peggy Browning Fund is an organization like no other, providing forty law students with stipends and summer fellowships in labor-related positions across the nation. The conference brought law students from schools nationwide together at the Maritime Institute in Maryland for two jam-packed days of unique labor and workers’ rights themed programming and networking.

Conference events began on Friday evening with a networking reception and dinner, followed by a screening of the film Farewell Ferris Wheel, which shed light on workers’ rights issues surrounding the United States’s controversial H-2B guest worker visa program. Saturday’s programming began with a keynote address from Mark Gaston Pearce, Chairman of the National Labor Relations Board (“NLRB”). Mr. Pearce shared his work experiences that he gained during his transition from union-side work to leading the NLRB, advancing as a minority lawyer, and beginning his career in the NLRB’s Buffalo office. St. John’s Alumna and NLRB Staff Attorney, Amanda Jaret ‘13, moderated the panel.

Following the keynote address, I attended two breakout sessions: Introduction to Labor Law and Employee Benefits. The sessions offered great overviews to the fundamentals of Labor Law and Employee Retirement Income Securities Act (“ERISA”) Law.

After lunch, I attended my favorite panel of the weekend: Sports and Labor Law. The panel consisted of attorneys from three major sports unions, the NBPA, NFLPA, and MLBPA, and delved into the unions’ history and development, current initiatives, and stances regarding legal issues. The conference concluded with a panel discussion on organizing workers in the gig economy, which highlighted the unique nature of organizing employees or independent contractors of companies like Uber, Lyft, and Airbnb.

As a first-year law student, it can be difficult to leave the classroom and see legal work in action, but the Peggy Browning Conference both exposed me to new and fascinating legal issues and provided me insight into my desired career with unparalleled access to distinguished individuals at the top of their field. I hope to be able to formally become involved with the Peggy Browning Fund throughout my time in law school, and I strongly suggest that students with an interest in workers’ rights or Labor and Employment Law should research the fellowship and aim to attend the conference next fall.

Oct 12

Columbia University: Board Overrules Brown University and Classifies Student Assistants as Employees

By Divya Acharya.

Section 2(3) of the National Labor Relations Act (the “Act”) broadly defines an employee as “any employee,” subject to specified exceptions. Additionally, the Supreme Court has noted that the definition encompasses “any person who works for another in return for financial or other compensation.” Tasked with interpreting the wide-ranging breadth of this definition, the National Labor Relations Board (the “Board”) has rendered pendular decisions in cases such as New York University (2000), Brown University (2004), and, most recently, Columbia University (2016).

The Board issued a 3-1 decision in Columbia University, holding that student assistants working at private and nonprofit universities classify as employees pursuant to § 2(3) of the Act. In Columbia University, the Board revisited its earlier decisions in Brown University and New York University, which led to overturning the former and reinstating the latter.

In Columbia University, the majority reversed Brown University, which held that student assistants were primarily students and, therefore, had an educational, rather than an economic, relationship with the school. The Board found that it “deprived an entire category of workers of the protections of the Act without a convincing justification.” In Columbia University, we observe the Board embracing the rationale it applied in New York University, where it found that graduate assistants were employees pursuant to both § 2(3) of the Act and the common law agency doctrine.

Here, the Board did not find a compelling reason to exclude student assistants from the protections afforded by the Act. It is within the Board’s authority to treat student assistants as statutory employees when they are directed by the university to perform work for which they are compensated. In this case, the common law agency doctrine reflects a master-servant relationship between the student assistants and Columbia University: the university-employer has the right to control the student assistant-employee’s work, and the work is performed in exchange for compensation. Thus, since the standards for an employer-employee relationship are met under the common law test, it is sufficient to establish that the student assistant is a § 2(3) employee for all statutory purposes.

The Board reasoned that extending student assistants the right to engage in collective bargaining would not only preserve, but also advance the policies of the Act: to encourage collective bargaining and to protect a worker’s rights to freedom of association, self-organization, and designation of representatives of their own choosing.

It is important to note that when the New York University and Brown University decisions were rendered, the Board’s composition changed from that of a democratic majority to a republican majority. The Columbia University decision is the product of today’s democratic majority Board. Given that its changing members directly influence the Board’s decisions concerning this issue, it will be interesting to observe whether the looming presidential election will keep the pendulum swinging.

Aug 29

St. John’s Law Student Front & Center

Vice President of Planning for the Labor Relations and Employment Law Society and second year student, Courtney Sokol, was invited to the Hillary Clinton victory party for the New York Primary in mid-April.  Ms. Sokol, who took the opportunity to speak with numerous New York City politicians and St. John’s Law alumni, was photographed by the Associated Press holding a sign that read, “A Woman’s Place Is in the Whitehouse.”  The picture was printed in a number of publications including The Economist and The National Journal.  Ms. Sokol is pictured below:

Hillary Clinton

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