On November 18, the National Labor Relations Board (NLRB) announced that it would be pursuing charges against Wal-Mart. The agency’s general counsel reportedly investigated workers claims that Wal-Mart had threatened employees for taking part in walkouts surrounding last year’s Black Friday shopping season. According to the NLRB, in several states, Wal-Mart unlawfully threatened, surveilled, disciplined or terminated employees as a response to or in anticipation of legally protected worker activities. The Wal-Mart stores were in a waide range of states, including: California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington. Despite authorizing these claims, the NLRB found no merit in other violations alleged. The NLRB found no merit in claims that alleged that worker’s were told to leave private property and changing work schedules. This case will be interesting to see unfold, as Wal-Mart is the largest employer in America, with over 2.2 million employees. 1 Black Friday 2013 is right around the corner and workers are planning other protests of Wal-Marts practices; this authorization of a complaint will give some publicity to the ongoing struggle between Wal-Mart and their employees. 2 For the official release from the NLRB, click here.
Tag Archive: Labor and Employment Law
On October 25th and 26th, I had the privilege of attending the Peggy Browning Fund’s 15th Annual National Law Students Worker’s Rights Conference in Linthicum Heights, Maryland. The event brought together law students across the country interested in the future of workers’ rights. The conference gave a greater understanding of the issues facing American workers, and was an opportunity to network with fellow students, and top practitioners in the field.
On Friday evening, conference attendees were treated to a showing of Trash Dance. The film explored an artist’s organization of sanitation workers in Austin, Texas for a performance piece. After the film, students offered opinions about the film’s metaphors for worker organization.
On Saturday morning, AFL-CIO General Counsel and former NLRB Member Craig Becker delivered the conference’s keynote address. Mr. Becker reflected on his own experiences when speaking about unions’ future challenges. He also offered insights into labor cases on the Supreme Court’s current docket and organized labor’s reception of the Affordable Care Act.
Students then participated in workshops that covered various salient issues. I attended three different workshops, all led by prominent figures in organized labor. Dennis Walsh, Regional Director of Region 4 of the NLRB, discussed the NLRA’s nuances in “Introduction to Basic Labor Law”. Fred Feinstein, former General Counsel to the NLRB, detailed how anti-union consultants grew from cottage industry to well-oiled machine in “Future of Worker Mobilization”. Baldwin Robertson, partner of Woodley & McGillivary, summarized issues facing state and municipal union members in “Public Sector Labor Law”.
In the plenary session on Saturday afternoon, panelists Leon Dayan, Jessica Robinson, and Peggy Shorey summarized new assaults on collective bargaining rights in the states, including new right-to-work initiatives and movements to end dues check-offs. In closing remarks, Dennis Walsh, Marley Weiss and Joe Lurie thanked all conference organizers for their hard work in putting together the engaging and educational programming. It was my pleasure to represent St. John’s University School of Law at the conference. The Peggy Browning Fund’s programs contribute greatly to the labor law community, and I was fortunate to be a part of this year’s conference.
Unpaid interns are filling the court system. Many wage and hour cases have been heard by courts (more are upcoming) but very recently a more disturbing trend has emerged. A federal district court in New York ruled last week that unpaid interns are not “employees” and thus are not able to recover for sexual harassment under New York City’s Human Rights Laws (NYCHRL).
In the case of Wang v. Phoenix Satellite Television US, Inc., the Southern District of New York threw out the hostile work environment discrimination claims of Lehuan Wang, a broadcast journalism intern from Syracuse University. Ms. Wang alleged that her supervisor engaged in inappropriate conversations, including inviting her to his hotel room where he touched her and tried to kiss her. Ms. Wang also alleged that she had been discussing permanent employment with the supervisor, and after this incident, the supervisor was no longer interested in hiring her. Ms. Wang is a Chinese citizen and would have required Phoenix to sponsor her work visa.
Though the plaintiff argued she qualified as an employee under the NYCHRL even though she was unpaid, the court disagreed. The court found that the NYCHRL does not extend its protections to unpaid interns. The Court stated that an employment relationship is an essential condition of this claim and because Ms. Wang was not compensated this relationship did not exist. Despite this unfavorable ruling, Ms. Wang was able to maintain her failure to hire complaint under city and state Human Rights Laws.
This case is an interesting example of the predicament employer’s (and employee’s) may face because of an unpaid internship. Although the court did not extend the definition of “employee” under the NYCHRL, employers and employees alike should be aware of the recent ruling. A link to the full decision in Wang v. Phoenix Satellite Television US, Inc. is available here.
The Labor and Employment Relations Association sponsored a reception and panel discussion on “The Affordable Care Act on Collective Bargaining.” Many distinguished panelists participated, including: Jeff Stein, Alyson Mathews, and Frank Moss.
The discussion began with an analysis of the main characteristics of the Affordable Care Act (“ACA”); first, universal coverage; second, the requirements on insurance companies covering everyone and third, the government subsidies given to those who cannot afford coverage. The panel also discussed the penalties employers will receive when they does not provide their employees adequate coverage. Jeff Stein addressed a potential issue that may arise, if people who are covered by insurance companies are also trying to receive subsidies.
Other issues that may arise when the ACA comes into effect will involve collective bargaining agreements. The question of who to cover remains unanswered because of eligibility. Children are not eligible under the Act and spouses do not have to be offered care. Another potential issue arises with part time employees who work thirty hours a week. Employers are concerned with increased costs from the Act while unions are concerned that the Act does not provide sufficient compensation.
Alyson Matthews noted that, “the regulations implementing the Affordable Care Act change on an almost daily basis, which makes it difficult for employers and unions to develop collective bargaining strategies. The law will likely result in a lot of creative solutions as employers and unions navigate the impact of it on the overall collective bargaining framework.”
As each panelist expressed his or her predictions on the long-term effects of the ACA, it became clear that much of the Act’s effect on employer, union, and employee relationships remains answered. This event was an excellent exploration of the possible ramifications of the Affordable Care Act and it was educational for students and practitioners alike.
Yesterday, the United States Department of Labor (“DOL”) announced the final version of a rule that will expand the coverage provided by the Fair Labor Standards Act (“FLSA”). Under the new rule, home care workers will be protected by the minimum wage and overtime provisions of the FLSA. Although home care workers whose primary role is to provide companionship to the patient remain exempt from the provisions, the expansion of coverage is expected to bring approximately 2 million additional workers under the coverage umbrella.
Already, both sides of the issue have expressed opinions on why the expanded coverage either will or will not be a good thing in the long run. Proponents of the new rule have highlighted the fact that a large number of workers who were traditionally underpaid for the services and hours they provided may now have an opportunity to earn a fair salary. Opponents of the new rule warn of “unintended consequences” that will result from requiring the payment of minimum wage and, in particular, overtime. They believe that one potential consequence will be the creation of an underground industry within the home health care industry comprised of workers who do not have proper training.
The new rule takes effect January 1, 2015. Between now and then, the DOL will work with stakeholders in the industry, including the agencies who employ home care workers, home care workers, and patients, on implementation. More information, including fact sheets and details about upcoming webinars, are available at a special DOL website, which can be accessed here.
 United States Department of Labor, Minimum wage, overtime protections extended to direct care workers by US Department of Labor, September 17, 2013, available at http://www.dol.gov/opa/media/press/whd/WHD20131922.htm.
 Bryce Covert, Why It Matters That Home Care Workers Just Got New Labor Rights, Think Progress, September 17, 2013, available at http://www.thinkprogress.org/economy/2013/09/17/2634411/home-care-workers-rule-change.
 Angela Gonzales, New ruling on home care workers could mean bigger bills for consumers, Phoenix Business Journal, September 17, 2013, available at http://www.bizjournals.com/phoenix/blog/health-care-daily/2013/09/new-ruling-on-home-care-workers-could.html.
 Department of Labor, supra at note 1.
In a pair of 1998 decisions, the Supreme Court held that liability for hostile workplace claims may only be imputed to employers when the employer negligent about the discrimination or when the harasser is a “supervisor.” 1 During the 2012-2013 term, the Court revisited the issue in Vance v. Ball State Univ. 2 The Court narrowly defined “supervisor” for purposes of vicarious liability under Title VII as someone empowered by the employer to take tangible employment actions against the victim. 3 Employee rights advocates decried the decision as an erosion of hard fought rights, while business advocates cheered the decision for making it more difficult for petulant ex-employees to file frivolous claims. 4 Vance is significant because it resolved a circuit split, 5 and the decision makes it harder for employees to succeed on hostile work environment claims. Two very recent cases from the Southern District of New York (which previously adhered to the Second Circuit’s broad definition of supervisor 6) demonstrate the bounds of this new doctrine.
The issue of imputed liability for hostile workplace environment claims was addressed in Brown v. City of New York. 7 Plaintiff Brown worked for the City of New York as a Supervisor within the Department of Social Services. 8 Her direct superior was Jerry Victor. 9 Plaintiff alleged that her subordinate George Miller touched her inappropriately, made loud sexual noises in the office and displayed aggressiveness toward all women. 10 Brown routinely reported Miller’s “unbearable” behavior to Victor, who did nothing. 11 Judge Englemayer held that a reasonable jury could impute liability to the City because an issue of material fact existed whether the City was negligent in responding to Brown’s complaints. 12
The same issue also arose in Dabney v. Christmas Tree Shops. 13 Plaintiff Dabney worked for Christmas Tree Shops as an Office Coordinator. 14 She reported to the Operations Manager Chris Bartlett. 15 Plaintiff alleged that another female employee complained that Store Manager Jose Plaza had made “offensive remarks” about female customers and used “ridiculous language”. 16 Citing Vance, Judge Seibel found that the alleged misogynistic comments made by a “manager-on-duty” could not impute liability to the employer because the Plaintiff never showed that the alleged harasser was the plaintiff’s direct supervisor. 17
Dabney and Brown are significant for New York employment law practitioners for three reasons. First, the Southern District of New York has embraced the Supreme Court’s ruling, and has been applying it evenhandedly. Although New York is still a pro-employee venue in other respects 18, Vance has continued the trend of making federal claims less surmountable for employees. Second, Dabney showed that Vance has the very real effect of closing avenues for employees who claim harassment to recover damages. Employees now face additional obstacles to securing money judgments. Third, Brown shows that employers and human resources personnel must remain ever vigilant in responding to employee complaints. All reports of discrimination, bias and harassment need to be taken extremely seriously.
- Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). ↩
- Vance v. Ball State Univ., ___ U.S. ___, 133 S. Ct. 2434, 2454, 186 L. Ed. 2d 565 (2013). ↩
- Supervisors have ability to take tangible employment actions against employees when they can effect “significant change[s] in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Vance, 133 S. Ct. at 2443. ↩
- See, e.g., Jason Linkins and Ryan Grim, Utopia Achieved As A Litany Of Pervasive Discriminatory Practices Are Ended With Magical Thinking, Jun. 26, 2013, Huffington Post, available at http://www.huffingtonpost.com/2013/06/26/workplace-discrimination-voting-rights-act-enda_n_3505537.html. ↩
- Compare Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003), cert. denied, 540 U.S. 1016 (2003); Whitten v. Fred’s Inc., 601 F.3d 231 (4th Cir. 2010); McGinest v. GTE Service Corp., 360 F.3d 1106 (9th Cir. 2004); Dawson v. Entek International, 630 F.3d 928 (9th Cir. 2011); Smith v. City of Oklahoma City, 64 Fed. Appx. 122 (10th Cir. 2003) (broader definition of supervisor) with Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005), Griffin v. Harrisburg Property Servs., Inc., 421 Fed. Appx. 204 (3d Cir. 2011), Stevens v. U.S. Postal Serv., 21 Fed. Appx. 261 (6th Cir. 2001), Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027 (7th Cir. 1998); Rhodes v. Illinois Dept. of Trans., 359 F.3d 498 (7th Cir. 2004), Joens v. John Morrell & Co., 354 F.3d 938 (8th Cir. 2004) (narrower definition of supervisor). ↩
- See generally Mack, 326 F.3d 116. ↩
- 2013 WL 3789091 (S.D.N.Y. July 19, 2013). ↩
- Brown v. City of New York, 2013 WL 3789091 at *1 (S.D.N.Y. July 19, 2013). ↩
- Id. ↩
- Id. at *2. Miller was eventually fired after assaulting several women and masturbating in front of female colleagues. Id. at *2-3. ↩
- Id. at *13. ↩
- Id. at *12-13. Also note that Judge Englemayer held that the City’s anti-harassment policy and internal complaint policy did not entitle to the City to summary judgment on this issue. ↩
- 2013 WL 3820668 (S.D.N.Y. July 24, 2013). ↩
- Dabney v. Christmas Tree Shops, 2013 WL 3820668 at *1 (S.D.N.Y. July 24, 2013). ↩
- Id. ↩
- Id. at *10. ↩
- Id. at *13. Also note that Judge Seibel held that Plaintiff’s hostile work discrimination claim failed on its merits because occasional use of sexist language does not by itself create a hostile work environment. Id. at *12. Thus even if Dabney’s direct superior, Bartlett, had made the “ridiculous” comments, liability could not impute unless Bartlett had the power to take tangible employment actions against Dabney (or unless the company was negligent in addressing the harassment). ↩
- See, e.g., the New York State Human Rights Law, Executive Law, § 290 et seq., the New York City Administrative Code, § 8-101 et seq., the New York Minimum Wage Act, N.Y. Lab. Law § 650 et seq., the New York Payment of Wages Law, N.Y. Lab. Law § 190 et seq..
See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 S. Ct. 2343, 2352, 174 L. Ed. 2d 119 (2009) (“[P]laintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action[.]”).
In honor of the end of summer and Labor Day, the STJCLEL Blog brings you a special edition of Around the Web. Here is a compilation of interesting links and articles to invigorate your work day!
Labor Contract Negotiations are coming to New York City
New York’s Next Mayor Faces Union Showdown
With the end of Mayor Bloomberg’s term approaching, NYC braces for the renegotiation of all union contracts with the city. This article outlines the uphill battle that may or may not be ahead of the city, and how these negotiations could set an example for other state and local governments around the country.
NLRB launches APP
The NLRB app (for iPhone and Android) provides information regarding their rights and obligations under the National Labor Relations Act. Read the press release here, or just check out the app for yourself through ITunes or Google Play.
The History of Labor Day
If all you know about Labor Day is that it is the last acceptable day to wear white pants, read this primer from the Department of Labor to catch up on the origins of the holiday. Next, read this assessment of the current working conditions.
Enjoy the week! Leave anything of interest that we might have forgotten in the comments!
Watch our blog’s founder and recent graduate, Alyssa Zuckerman, speaking about her experiences with this blog, St. John’s Center for Labor and Employment Law, and the Labor and Employment programs at St. John’s University School of Law. Watch the video to hear more about the opportunities available at St. John’s and learn how the STJCLEL helps students gain a broad perspective and assist in defining and advancing a chosen career path.
You can explore the rest of the viewbook here.
Many students have asked for advice about making course selections. The most proactive route for a student interested in labor and employment law is to immediately concentrate in the subject area, but these recommendations are generally applicable to any student.
The general principle is: life is short. A student who knows they want to be a labor and employment lawyer should take as many L&E classes as they can, as soon as possible. While most of these proactive, inquiring students ultimately concentrate in labor and employment law (L&EL), these suggestions have broader utility. For those who are sampling different areas of interest, know that a fine grade in a single elective is better than a terrible grade in an elective. This advice is especially pertinent to rising 2L’s.
If you are able to take four courses in L&E law in the fall semester, do so. Take additional courses in the spring semester and take required courses after building an impressive block of excellence in labor and employment law classes. Human nature being what it is, a student is likely to do very well in the subjects they are most interested in. Even if you graduate and never directly practice L&EL, you have nevertheless gained a conceptual and practical architecture portable to virtually any other substantive area of law.
There are many examples of students who excelled in labor and employment classes who went on to practice in different areas entirely. The Chief Counsel to the Governor of a major state graduated at the top of the class as an evening student, practiced entertainment law briefly, went to the U.S. Attorney’s Office, moved up the ranks to become the Executive Assistant to the U.S. Attorney (who is now Governor); the Chief of Staff to the U.S. Secretary of Defense also is another example.
Virtually without exception, students taking two or more related courses in the same semester find that the whole is greater than the sum of the parts—i.e., one does better taking synergistic courses in the same semester. This will create opportunities to show a depth of knowledge in the subject area. Some L&E courses may be paper based, with opportunity for developing a publishable paper competitively situated for an external prize competition. (e.g., the NYSB Association L&E Law Section annual writing competition.) Prospective employers will be impressed. Most scholarships and employment opportunities are concentrated on 2L students.
Imagine being the employer considering 2L students for summer associate positions. Candidate F takes Labor Law in the fall semester, 2013, and receives a B+ (or, OK, A-; not bad!) Candidate F remains an F, however, if F does not take any other L&E course. Meanwhile, Candidate A takes Labor Law with NLRB Regional Director and prominent alumna Karen Fernbach, Pension and Benefits Law with John Campbell of the United States Department of Labor Office of the Solicitor, Employment Law with me and Employment Discrimination Law co-taught by David Marshall, partner with the management side firm Edwards Wildman, and yours truly.
Four courses trump one or two courses. Simple.
Candidate A becomes the A+ summer associate, and receives a partial tuition scholarship in addition. Candidate F was never really in the game. During the fall interview, in response to the employer’s query regarding labor and employment law courses, Candidate F says Labor Law was the only course that fit F’s fall schedule.
Candidate A, however, submits the fall and spring list of eight labor and employment courses Candidate A is taking the full academic year. Case closed. All things being equal otherwise, if one position is available between Candidates A and F, F gets the rejection letter and Candidate A gets the summer position.
With a summer position secure and likely to lead to an offer to join the firm as an associate after graduation, Candidate A can take the required courses in the third year with relatively greater confidence that a lower grade in a required course would not be catastrophic. Candidate A’s GPA went up significantly in the fall semester, after acing every L&E course. Meanwhile, Candidate F and friends have squandered their critically important fall 2L semester. Rather than developing some substantive depth, Candidate F et al maintain that they have “gotten several required courses out of the way, although cumulative GPAs did suffer.” Candidate F and friends have little substantive depth and lower cumulative GPAs. Presented in this fashion, the choice is simple.
The St. John’s Center for Labor and Employment Law and the Labor Relations & Employment Law Society would like to thank all of the graduates who contributed their time and efforts to the Center, the Society and this blog. Congratulations and thank you to Andrew Midgen, Amanda Jaret, Krystyna Baumgartner, Thomas Keane, and Ian Hayes.
Very special thanks to Alyssa Zuckerman, whose tireless efforts created and nurtured this blog from the very beginning and who will be sorely missed!
Congratulations and good luck in your future endeavors!