Tag Archive: St. John’s Law

Sep 18

FLSA Update: New Rule Expands Coverage to Home Care Workers

Photo Credit: VA

Photo Credit: VA

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.[1]  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.[2]

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.[3]  Opponents of the new rule warn of “unintended consequences” that will result from requiring the payment of minimum wage and, in particular, overtime.[4]  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.[5]

The new rule takes effect January 1, 2015.[6]  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.[7]  More information, including fact sheets and details about upcoming webinars, are available at a special DOL website, which can be accessed here.

[1] 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.

[2] Id.

[3] 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.

[4] 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.

[5] Id.

[6] Department of Labor, supra at note 1.

[7] Id.

Sep 17

Management Lawyer’s Colloquium

A distinguished panel of alumni and guests joined the CLEL and the LRELS for a spirited and engaging panel on current issues in management-side employment law. Scholarships winners were announced. Congratulations to May Mansour ’14 and Eugene Ubawike ’15 for taking home the Cesar Chavez Memorial Prize and the Alan C. Becker Memorial Prize from Jackson Lewis LLP. The panelists included: Daniel Costello ’99, Vanessa Delaney ’12, Christopher Kurtz ’03, Craig Roberts ’97, Ana Shields ’03, Richard Zuckerman, Natalia Torres, Robert Lafferty, and David Marshall.

The panel discussion ranged from career advice to privacy rights and the implications of the Affordable Care Act.

The panelists spoke about their career paths and what has made them successful in the field. The panelists viewed integrity as a key attribute in building trust and effective relationships; and creating this relationship with clients is a major part of the job.

On the issue of privacy, Richard Zuckerman discussed how employers must balance the need to keep track of employees while making sure not to violate any constitutional protections, such as against unreasonable searches and seizures. Other panelists discussed the right to monitor employee phone calls, GPS tracking, bag searches, and taping phone calls without the person’s consent.

The topic of social media and technology was explored. Several panelists shared their views on how Facebook and other social networking websites have opened up new possibilities as well as problems with privacy.

Overall, the event was extremely informative and the Labor Relations and Employment Law Society would like to thank the panelists, all who were able to attend and congratulate May and Eugene on their accomplishments!

Sep 12

17th Annual Management Lawyers’ Colloquium

Please join the Center for Labor and Employment Law and the Labor Relations and Employment Law Society on Monday, September 16, 2013 for our Annual Management Lawyers’ Colloquium. Our Distinguished Speaker Series welcomes leaders in the field to the Law School to discuss timely issues and trends in labor and employment law. We are excited to welcome practitioners from a variety of firms and companies including: Bond, Schoeneck & King; Jackson Lewis LLP; Highgate Hotels; Lamb & Barnosky LLP; Coca-Cola Refreshments; Employment Practices Advisors, Inc.; Skadden, Arps, Meagher & Flom LLP; Hilton Hotels and others.

The 17th annual colloquium will feature a discussion of cutting-edge labor and employment law issues by a distinguished panel of management side labor and employment law attorneys. The event will close with an announcement of the student recipients of the annual Jackson Lewis Scholarship for Excellence in Labor and Employment Law in Memory of Allan C. Becker.

Please join us in the Mattone Family Atrium for networking, and an engaging panel discussion.

Please RSVP to edwardsp@stjohns.edu

We hope to see you there!

Sep 06

What Vance v. Ball State Means for New York State Employment Law Practitioners

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.


  1. Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
  2. Vance v. Ball State Univ., ___ U.S. ___, 133 S. Ct. 2434, 2454, 186 L. Ed. 2d 565 (2013).
  3. 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.
  4. 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.
  5. 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).
  6. See generally Mack, 326 F.3d 116.
  7. 2013 WL 3789091 (S.D.N.Y. July 19, 2013).
  8. Brown v. City of New York, 2013 WL 3789091 at *1 (S.D.N.Y. July 19, 2013).
  9. Id.
  10. Id. at *2. Miller was eventually fired after assaulting several women and masturbating in front of female colleagues. Id. at *2-3.
  11. Id. at *13.
  12. 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.
  13. 2013 WL 3820668 (S.D.N.Y. July 24, 2013).
  14. Dabney v. Christmas Tree Shops, 2013 WL 3820668 at *1 (S.D.N.Y. July 24, 2013).
  15. Id.
  16. Id. at *10.
  17. 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).
  18. 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[.]”).

Sep 03

Around the Web – Labor Day 2013

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!

Jul 22

David L. Gregory on NLRB

In an article titled “Vacancies and Partisan Fighting Put Labor Relations Agency in Legal Limbo” written by Mark Landler and Steven Greenhouse and published in The New York Times on July 15, 2013, Professor Gregory offers context for the situation which has arisen in the National Labor Relations Board.

The NLRB has been functioning without a quorum of members (a full slate is five members) and President Obama’s NLRB recess appointments have been the subject of an acrimonious court battle set to go before the Supreme Court next term.

Experts, like Professor Gregory, say that these issues have cast doubt upon the rulings of the NLRB and without a clear sense of direction in solving labor disputes.

Here is an excerpt from the article:

“The situation we’re seeing now is really unprecedented,” said David L. Gregory, a professor of labor law at St. John’s University. “There was a period of chronic vacancies that was as much the fault of the Democrats as the Republicans. But we really haven’t seen a showdown like this in modern history.” The White House reiterated Monday that Republicans were “needlessly and systematically” obstructing the president’s nominees, arguing that he had put forward a full bipartisan set of candidates in April.

Click to Read More

Jul 08

Alyssa Zuckerman speaks about the St. John’s Center for Labor and Employment Law

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.

Jun 25

NYU 66th Annual Conference on Labor

gregory-076St. John’s Center for Labor and Employment proudly co-sponsors NYU’s Annual Conference on Labor and held a kickoff reception the night prior to the conference. The keynote speaker at the reception was Lorelei Salas, Legal Director of Make the Road New York (MRNY).

MRNY is is a not-for-profit, membership-led organization based in Bushwick, Brooklyn; which builds the power of Latino and working class communities to achieve dignity and justice through organizing, policy innovation, transformative education, and survival services. As Legal Director for MRNY, Ms. Salas heads the housing and benefits litigation team, the employment team, the health advocacy team, and the newly formed immigration unit. In that capacity, she directs litigation, supervises the provision of direct legal services, and helps develop policy and campaign work around issues that affect the MRNY community.

Ms. Salas spoke to the group of students, friends of the CLEL and distinguished guests at a reception on June 3, 2013 about the opportunities and transformation that she is a part of for MRNY. She spoke about how her career and life experiences had shaped her passion for worker’s rights and a recent success, the organization of cash wash workers in New York City who have recently signed their first union contract.

The kickoff reception preceded NYU’s 66th Annual Conference on Labor brings together top government officials and leading attorneys in the fields of labor and employment law in a unique and practical two-day program offering practical learning and CLE credit.

Jun 17

Course Selection Recommendations from Professor David L. Gregory

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.

Good luck!!

Jun 02

Congratulations to the 2013 Graduates!

Congratulations to the St. John’s University School of Law Class of 2013!  The graduates were honored today in a ceremony on Sunday, June 2 at Carnesecca Arena at the Queens campus. The Honorable Jonathan Lippmann, Chief Judge of the State of New York, and the Honorable Theodore T. Jones Jr., ‘72L, ‘07HON were also awarded at the ceremony.

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! 

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