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:
Tag Archive: St. John’s Law
The St. John’s Labor Relations and Employment Law Society hosted a number of noteworthy guests throughout the 2015-2016 school year. The speakers represented different areas of Labor and Employment Law, ranging from collective bargaining in professional sports to employment contracts with the the unionized workforce in New York City.
In April, Chairman Mark Gaston Pearce of the National Labor Relations Board spoke to the Society about his career path from starting a boutique labor law firm in Buffalo, New York to his appointment by President Obama to serve as Chairman of the NLRB.
Commissioner Robert Linn of the Office of Labor Relations, appointed by Mayor Bill de Blasio, spoke about the challenges associated with bargaining with the unions that represent New York City workers. He also highlighted his work on the newly developed Health Benefits Program in New York City, which is poised to save the City millions of dollars while offering affordable healthcare to city employees.
The Society also hosted Ann Lesser, the Vice President of the Labor, Employment, and Elections Division of the American Arbitration Association. Ms. Lesser co-lectured a class with Professor David Gregory on the history of arbitration, the current state of the practice, and the future use of arbitration as a litigation alternative.
Finally, the Labor Relations and Employment Law Society welcomed William Heller, General Counsel to the New York Giants, to discuss collective bargaining with professional football players. He emphasized the importance of Labor and Employment Law with regard to employment contracts with professional athletes.
The Society looks forward to another fascinating lineup of informative guest speakers for the 2016-2017 school year.
By Natalie Russell.
Lesbian Gay Bisexual Transgender (“LGBT”) workers are seeing progress in the protection of transgender employee rights by the Equal Employment Opportunity Commission (“EEOC”). Title VII of the Civil Rights Act of 1964 protects employees against workplace discrimination “based on . . . sex.” Traditionally, however, the term “sex” was defined as one’s gender at birth. Any claims that were filed for sex-related acts of discrimination, other than those relating to one’s gender at birth, could not be adjudicated by the EEOC.
The term “sex” was expanded in the 1989 Price v. Waterhouse decision when the U.S. Supreme Court held that sex stereotyping was protected under Title VII. The law continued to evolve and, in 1998, rendering the majority opinion in Onacle v. Sundowner Offshore Services, Justice Scalia acknowledged that same-sex harassment is also discrimination under Title VII.
Still, it was not until the 2012 landmark decision, in Macy v. Dep’t of Justice, when the EEOC recognized that claims based on transgender discrimination are protected under Title VII and can be adjudicated according to 29 C.F.R. Part 1614 of the EEO complaint process. Under Macy, a transgender individual who experiences sex discrimination in the workplace can establish a case under three theories: sex, gender stereotyping, and gender identity. Sex discrimination based on gender identity exists when an agency denies employment because the applicant is transgender, terminates employment based on transgender status or repeatedly uses the incorrect gender pronoun when interacting with or talking about a transgender employee.
On April 9, 2015, the EEOC v. Lakeland Eye Clinic, P.A. $150,000 settlement marked a “historic” moment for the EEOC. It was one of the first times the EEOC filed a case for sex discrimination against a transgender employee. The EEOC has made LGBT coverage under Title VII a priority through its Strategic Enforcement Plan (“SEP”). In 2015 alone, the EEOC held over seven hundred events where LGBT rights were discussed. With its directed attention on LGBT coverage, the EEOC has resolved one hundred eighty-four cases and settled twelve of two hundred seventy-one transgender/gender-identity claims it received in 2015.
The EEOC continues its efforts to educate, prevent, and correct LGBT rights and has committed to protecting sex-discrimination rights of transgender individuals.
By Mary Cunningham.
On April 12, the U.S. observed Equal Pay Day—a day created to discuss the pay gap between men and women. Equal Pay Day received special attention this year because of its temporal proximity to the day the U.S. Women’s National Soccer Team (USWNT), represented by five of its best players, filed a complaint with the Equal Employment Opportunity Commission against the U.S. Soccer Federation alleging wage discrimination. The U.S. Soccer Federation is the governing body of soccer in all its forms in the United States. U.S. Soccer also determines compensation for members of both the U.S. men’s national soccer team (USMNT) and the women’s national team.
The women’s team asserts that the players for the men’s team are paid almost four times more than the women’s players. Their complaint notes, for example, that the men are paid no less than $5,000 for an exhibition game, and as much as $22,625 for winning the game. In contrast, the women are paid $3,600 to play an exhibition, and are paid only $4,950 for a similar win. The team bonus the women received after winning the 2015 World Cup was also several million dollars short of the team bonus the men received in 2014 after being eliminated in the second stage of the tournament. This pay disparity seems unjustified particularly in light of USWNT’s claim that they bring in more revenue than USMNT.
U.S. Soccer disagrees with USWNT on revenue, arguing that USWNT is drawing from a particularly successful year to make broad conclusions. The federation also notes that FIFA tournament payout for men’s soccer is dramatically higher than payout for women’s soccer. They argue the difference in payout primarily explains the pay gap for the men’s and women’s World Cups.
For a wage discrimination claim under Title VII, USWNT has the difficult task of showing proof of U.S. Soccer’s discriminatory intent. To establish a prima facie case for wage discrimination under the Equal Pay Act (EPA), they must show that the women’s and men’s players perform equal work, which involves substantially equal skill, effort, and responsibility in similar conditions. If this standard is met, the burden shifts to U.S. Soccer (the employer) to prove that the difference in pay is justified by one of four defenses: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”
The fourth defense—“factor other than sex”—has been broadly interpreted. For example, the Seventh and Eighth Circuits have held that “acceptable business purposes” arising from “factor other than sex” does not need to be a reasonable business purpose to constitute a defense. Essentially, if U.S. Soccer is correct and the men’s team produces significantly more revenue than the women’s, paying the women less may be acceptable to a court unwilling to adjudicate the wisdom of business decisions. U.S. Soccer, however, would likely avoid simply arguing women’s pay is justified because “market forces,” such as the professional soccer job market, have determined that women are paid less than men. This argument seems problematic because, if adopted, it frustrates the EPA’s goal of overcoming historic sex-based wage discrimination created by market forces.
At this point, a likely strategy for USWNT involves tackling wage issues during their collective bargaining negotiations to avoid what would be an interesting, but tricky, legal battle.
By Ross Pollack.
On March 29, 2016, the Supreme Court issued a divided 4-4 opinion in Friedrichs v. California Teachers Association, thus upholding the decision of the Ninth Circuit Court of Appeals. The one sentence opinion belies the importance of the case, which only two months earlier appeared as though it would nearly certainly cripple public sector unions’ ability to collect funds. At issue in the case was whether a public sector union could charge agency fees (the equivalent of Union Dues) to employees who elected not to join the Union. The teachers who brought the case argued compulsory agency fees violated their first amendment rights to use money as free speech because the Union might spend the money on political or ideological causes the employees did not support. In its 1977 decision, in Abood v. Detroit Board of Education, the Supreme Court ruled that compulsory agency fees were constitutional. Following this precedent in Friedrichs, the Ninth Circuit found that the Union was allowed to charge compulsory agency fees. Since the Supreme Court did not issue a majority opinion, that ruling and the Abood precedent stand.
However, the outcome in Friedrichs does not mean the debate over the legality of compulsory agency fees has been resolved. The two previous Supreme Court cases illustrated that several Justices would like to change the current precedent. In 2012, writing for the majority opinion in Knox v. Service Employees International Union, Local 1000, Justice Alito suggested that with regard to compulsory agency fees, “our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” Next, in the 2014 Harris v. Quinn decision, Justice Alito used even stronger language to voice opposition to the precedent on agency fees: “Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector.” Union opposition groups took these decisions as a signal that the time was ripe to find a case that directly challenged the Abood precedent on First Amendment grounds.
Friedrichs became that case. The Supreme Court granted certiorari to hear arguments on whether compulsory agency fees violate the free speech rights of non-member public employees. Justice Scalia was considered to be the swing vote in this case until reports emerged that the questions he asked during oral arguments indicated he did not support the Abood precedent. The New York Times even ran the headline, “Supreme Court Seems Poised to Deal Unions a Major Setback.” However, after Justice Scalia’s sudden passing in February, the remaining justices were left deadlocked on the issue. Rather than let the case sit indefinitely until a new justice was appointed, the Court issued a divided 4-4 opinion, which by default lets the Abood precedent stand.
However, the issues of whether compulsory agency fees are constitutional has not been definitively settled. In confirmation hearings for the new justice, the public should expect to hear Senators asking questions that allude to this first amendment issue. Also, expect a case with similar facts to arrive on the Supreme Court’s docket once a new justice is appointed.
By Courtney Sokol.
On March 22, in Tyson Foods, Inc. v. Bouaphakeo, the U.S. Supreme Court, in a 6-2 decision, upheld an Eighth Circuit ruling that certified a group of workers at Tyson Foods as a class under both a Rule 23(B)(3) class action and a Fair Labor Standards Act of 1938 (FLSA) collective action. Tyson Foods did not pay its employees for time spent “donning and doffing” necessary protective gear. The employees argued that Tyson Foods violated FLSA and the Iowa Wage Payment Collection Law by not paying appropriate compensation for time spent putting on and taking off the protective clothing at the beginning and end of the day and lunch break. While the central issues addressed by the Court address certification of a class with non-identical members, of which many were uninjured, the decision offers broader implications for the strength of worker protections.
Delivering the opinion of the Court, Justice Kennedy noted the grueling and dangerous conditions that Tyson’s workers experienced along with the necessity of such gear. Until 1998, the workers were paid under a system called “gang-time,” where employees were compensated for time spent only at their workstations. This time did not include when they were required to put on or take off protective gear. In response to a federal-court injunction, Tyson in 1998, began to pay all employees for an additional 4-minute period called “K-code time.” The four-minute period is the time estimated by Tyson for how long employees needed to put on their gear. However, in 2007, Tyson stopped K-code time, and instead only paid some employees beyond their gang-time wages for time spent dressing and undressing.
In response to this change, the employees filed suit in the United States District Court for the Northern District of Iowa, alleging FLSA violations. FLSA requires that a covered employee who works more than 40 hours a week receive excess time worked “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. §207(a). Additionally, FLSA requires employers to pay employees for activities which are integral and indispensable to their regular work, even if the work does not occur at the work station.
Here, the employees argued that putting on and taking off their protective gear were integral and indispensable to their hazardous work, and therefore, compensation for such is required by FLSA. The employees raised the same claim under the Iowa Wage Payment Collection Law, which includes FLSA mandated overtime.
At trial, the employees had to prove that they worked 40 hours or more per week in order to qualify for FLSA overtime. Respondents proposed to bifurcate proceedings by requesting that the District Court address first, whether the time spent preparing their protective gear was compensable under FLSA and how long the activity took on average; and second, a statistical methodology be used to determine how much each employee would recover.
Tyson Foods did not move for a hearing regarding either of the above issues raised by the employees, but instead challenged the class certification under FRCP Rule 23(B)(3) and FLSA collective action. Tyson Foods argued that the varying amounts of time it took employees to don and doff different protective equipment made the lawsuit too speculative for class-wide recovery.
The Court turned to its decision in Anderson v. Mt. Clemens to explain that when employers violate their statutory duty to keep proper records, which prevents employees from establishing how much time they spent doing uncompensated work, the “remedial nature of [FLSA] and the great public policy which it embodies . . . militate against making” the burden of proving uncompensated work “an impossible hurdle for employee[s].”
The court held that the class members were joined under a common question, which satisfies the requirements for a class-action suit irrespective of differences among the members. Although the case was decided on procedural grounds, Kennedy’s majority opinion put great emphasis on the danger of the Respondent’s profession paired with the necessity of the protective gear. In evoking the remedial nature of FLSA, the Court is seemingly united behind pro-labor sentiment.
By Amanda Slutsky.
On March 16, U.S. News and World Report released the much-anticipated law school rankings. This year, St. John’s University School of Law increased its ranking by eight spots to number 74. The previous year, St. John’s increased by twenty-five spots! This thirty-three spot jump over two years is an overall representation of the bright future St. John’s offers its students.
The incredible jump can be partially attributed to the opportunities from the School’s different centers, clinics, externships, and honors programs. One particular bright spot is the Center for Labor and Employment Law. At the Theology of Work and the Dignity of Workers Conference in March 2011, Denis Hughes, the President of the New York State ALF-CIO stated, “St. John’s has one of the finest labor programs in the country.” Moreover, under the leadership of Professors David L. Gregory, the Center has recruited some of the most highly regarded practitioners in the field as adjunct professors, such as NLRB Regional Director, Karen P. Fernbach.
Finally, the composition of the student body community may also explain the School’s rapid rise in the rankings. The student body-vibe at St. John’s is unmatched. At many law schools, the inherently competitive nature of ranking students creates a stressful and hostile environment. St. John’s distinguishes itself with students who genuinely help one another succeed. The student body feels like a family that fosters success. As the school’s ranking increases, the student body will inevitably increase in its size, G.P.A., and LSAT scores, but that will not change the friendly environment.
These highlights are among many reasons that demonstrate the bright future that St. John’s offers its students. As a result, St. John’s can be expected to continue rising in the rankings for years to come.
By Miller Lulow.
Just for a minute, let’s put ourselves in the shoes of Tony Clark, Executive Director of the Major League Baseball Players’ Association (the “MLBPA” or “Players”). The current Collective Bargaining Agreement (“CBA”) governing the relationship between the MLBPA and the Clubs expires December 1, 2016. Calculated speculation suggests that Bryce Harper, Right Fielder for the Washington Nationals, may be able to sign a $500M free agent contract in the winter of 2019. With Harper’s free agency lurking and the MLB seeing its most fruitful dividends in history, the MLBPA is going to be licking its chops going into the renewal of the CBA. When the MLBPA sits down with the MLB to restructure the CBA, the two positions butting heads will be: “We want a bigger piece of that pie” against “You’ve already had dessert.”
These conflicting positions raise an interesting debate: How much of the rising revenue are Players entitled to receive? The Clubs will assert that the rise in revenue is attributable to smart business decisions that capitalize on, and enhance, the product that the Players put out on the field. Conversely, the Players will argue that there would be no product to capitalize on if it were not for them. Thus, how can the Clubs overcome the Players’ argument that without the Players, the Clubs would not be owners?—they don’t. Instead, they agree and say, “Of course, you’re right, that’s why we pay you so much to begin with!”
The 2016 minimum salary in MLB will be $507,500. Tony Clark’s argument in favor of higher minimum salaries is that MLB players are employed 24/7/365. They are always on the company’s time. Even during the offseason, players are expected to work hard, become better at their craft, and get into better physical shape. Clark’s argument is very powerful once you consider that paying somebody $507,500 for 8,760 hours (1 year) of work means you are paying them $58 per hour. Though there are not many people who would turn down work for $58 an hour, think about working twelve to fourteen hours a day, traveling all over the country, rarely sleeping at home or seeing your family, and rarely getting more than five hours of sleep. Maybe $58 an hour does not seem all that great anymore. This goes to show the difficulty surrounding the impending restructuring of the CBA. As is the case every four years, the Players want more and the Clubs want more. How can we find common ground?
Maury Brown of Forbes.com says that MLB’s revenue grew $500M this year, bringing the total revenue close to $9.5 billion. So, if Harper signs a $500M contract, while he would not be paid all $500M up front, he would be signing a contract for 5.3% of the total MLB revenue. This idea is certain to make Clubs in smaller markets quiver. Harper has just about made it publicly clear that his intention is to be a Yankee—the Yankees have a rapidly declining payroll obligation that will culminate in the 2019 offseason to a mere $45.1M. Though all signs seem to point to the Yankees, because of the free agency system, the prices continue to drive themselves up.
So what ripple effect will a 10 year/$500M contract have on the rest of the players, or perhaps, on the rest of the Clubs? For one, do not think that the Players are ever rooting against each other in salary negotiations. The more money Player X signs for, the more money Player Y signs for, especially if they play the same position. But one player signing for $500M affects everybody, even the 6th-inning middle relievers, because the ripple is so massive. Therefore, the Players are rooting for Harper to sign as big of a deal as possible. On the other side of the table, while there are some Clubs that will pay that money for Harper, the overwhelming majority will not acquiesce. Such an amount would put a lot of pressure on the MLB to continue to raise its gross revenue.
Is it conceivable that one player could sign a contract worth $500M? It certainly looks like Bryce Harper will be that player in 2019. Indeed, this will pose some uncomfortable issues to be hashed out and hopefully agreed upon by the Players and the Clubs in the new CBA. It is interesting to see what kind of trouble it will bring for the MLB.
By Ross Pollack.
On March 1, in Gobeille v. Liberty Mutual Insurance Co., the U.S. Supreme Court upheld a Second Circuit decision finding that a Vermont law requiring self-covered entities to report healthcare information was preempted by the Employee Retirement Income Security Act of 1974 (“ERISA” or the “Act”). At issue in the case was whether states could require self-funded and self-insured healthcare plans covered by ERISA (“covered entities”) to submit members’ information regarding healthcare claims and services for inclusion in a statewide database. After Vermont demanded this information from a third party insurer, Liberty Mutual, a plan covered by ERISA, asserted that the law should be preempted by ERISA.
Delivering the opinion of the Court, Justice Kennedy first noted the sweeping nature of the statute’s language, which explicitly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U. S. C. §1144(a). He then moved to the Court’s recent jurisprudence, which limits the potentially all-encompassing statute to state laws that either (1) directly reference ERISA plans or (2) indirectly interfere with the core functions of ERISA plans. See, e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650 (1995) and Egelhoff v. Egelhoff, 532 U.S. 141, 148 (2001).
Next, the Court held that because ERISA requires covered entities to submit similar types of data to the Secretary of Labor, such reporting is “central to, and an essential part of, the uniform system of plan administration contemplated by ERISA.” Thus, the Court ruled that Vermont’s law was preempted because it interfered with a core function governed by ERISA. Justice Ginsburg dissented, arguing that the law was not burdensome enough on covered plans to be preempted by ERISA.
The most intriguing part of the case was the concurrence written by Justice Thomas. He argued that ERISA’s preemption clause may be entirely unconstitutional. He contended that §1144(a) of the Act violated the Constitution’s Supremacy Clause because it regulates matters that are not interstate commerce even though they relate to ERISA. Should the Court adopt this view in future ERISA preemption cases, there could be a dramatic shift in the regulation of covered plans.
By Charles Lazo on March 2, 2016.
In the past few decades, Fair Labor Standards Act (“FLSA”) lawsuit filings have been increasing at a steep rate. This can partly be contributed to FLSA, but also to states’ parallel wage and hour laws. In particular, state laws that pertain to tip credit.
Under FLSA, a restaurant can take a “tip credit” towards its minimum wage obligation for tipped employees equal to the difference between the required cash wage of at least $2.13 per hour and the federal minimum wage of $7.25 per hour. Under New York Labor Law (“NYLL”), restaurants may take a tip credit of $1.50 per hour toward their $9.00 per hour minimum wage obligation. However, for a restaurant to take a tip credit, it must comply with both FLSA’s and NYLL’s strict notice requirements—something that many restaurants fail to meet, despite their good intentions.
To avoid costly wage and hour lawsuits, some restaurant employers are deciding to forgo the advantages of the tip credit and instead pay its waitstaff a higher hourly wage. In effect, the restaurant employers do not need to meet the strict notice requirements, and consequently, do not need to protect themselves from wage and hour lawsuits.