Monday, March 17, 2014
Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.
In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.
March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Thursday, March 13, 2014
The big news yesterday out of Washington yesterday was the story that President Obama is ordering the Department of Labor to revise the overtime exclusion regulations. We obviosuly don't have the details yet, but one of the main thrusts appears to be an attempt to roll back the Bush-era regulation on primary duty. In particular, the current rules allow excluded duties to be an employee's "primary duty"--thereby possibly precluded overtime payment--even when those duties make up less than half of the employee's work time. In addition, the agency will apparently increase the current $455/week salary minimum for the overtime exclusions. No word yet on what the new amount would be.
It's still early and we'll obviously see a lot of political fighting on this, so stay tuned.
Friday, March 7, 2014
A new posting on SSRN on Designing Law School Externships that Comply with the FLSA should be of great interest not only to those of us tilling the employment law vinyard but to pretty much everyone else in legal education. From Niki Kuckes of Roger Williams, it deals with the recent DOL letter to the ABA on law student internships and the minimum wage question. Here's the abstract:
Recent debates over the best way to educate lawyers has led to an increasing focus on providing “experiential” education in law schools – and with it, a noted growth in law school externship programs. Externships provide a valuable way of giving law students real-life legal practice experience by allowing them to earn academic credit for training in a variety of actual legal settings, from prosecutors’ offices to corporate counsel departments. Because current ABA Standards for Law Schools do not permit students to be paid for activities for which they earn academic credit, law school externships are unpaid. This can raise questions under the Fair Labor Standards Act (“FLSA”), which bars covered employers from offering unpaid positions unless those positions qualify for one of the specific exceptions recognized by the Department of Labor from federal minimum wage and overtime requirements.
This issue was recently highlighted by an exchange of letters between the Department of Labor and the American Bar Association over law school externships. In September of 2013, the Department issued an opinion letter that approved as permissible the particular externship program posited by the ABA (in which unpaid law student externs at private law firms work exclusively on pro bono cases). Following this exchange, the broader question remains as to how to design an FLSA-compliant legal externship program, outside of this narrow setting.
This Article demonstrates that the interests of the law schools and the Department of Labor are in accord in this area, and that both seek to ensure – through the ABA Standards, on the law school side, and the FLSA, on the Labor Department’s side – that unpaid externships designed as training programs genuinely provide meaningful education and training for the law student externs who participate. By parsing the FLSA case law in this area and Department of Labor guidance statements, the Article derives a set of “best practices” for designing FLSA-compliant law school externship programs, highlights some pitfalls that may arise, and suggests specific steps to be taken both by law school externship program directors and host organizations who may participate in legal externship programs.
Hat tip to Mike Yelnosky for flagging this for us.
Monday, January 27, 2014
The United States Supreme Court decided today, in an almost unanimous opinion written by Justice Scalia (Justice Sotomayor didn't join one footnote), a donning and doffing case under the Fair Labor Standards Act in Sandifer v. United States Steel Corporation.
According to the syllabus of the case, Sandifer and others filed a putative collective action under the FLSA, seeking backpay for time spent donning and doffing pieces of protective gear that they asserted U.S. Steel requires workers to wear because of hazards at its steel plants. U. S. Steel contends that this donning-and-doffing time, which would otherwise be compensable under the Act, is noncompensable under a provision in the collective-bargaining agreement.
That provision’s validity depends on 29 U. S. C. §203(o), which allows parties to collectively bargain over whether “time spent in changing clothes . . . at the beginning or end of each workday” must be compensated. The District Court granted U. S. Steel summary judgment in pertinent part, holding that petitioners’ donning and doffing constituted “changing clothes” under §203(o). The Seventh Circuit affirmed.
The Supreme Court held that the the time the workers spent donning and doffing their protective gear was not compensable by operation of §203(o). More specifically, the Court construed "clothes" in "changing of clothes" to mean items that are both designed and used to cover the body and are commonly regarded as articles of dress. Nothing in §203(o)’s text or context, according to the Court, suggests anything other than this ordinary meaning. Thus, it concluded that there was no basis for the employees' assertion that the unmodified term “clothes” somehow omits protective clothing.
Going forward, the Court stated that a more appropriate way to proceed is for courts to ask whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes or washing.” If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items, the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items were also donned and doffed. So going forward, a distinction, for compensation purposes, will be made between between donning and doffing involving primarily protecive equipment (compensation ) as opposed to primarily protective clothing (not compensable if designated as such under the applicable CBA).
Don't you just love donning and doffing cases? :D
Monday, January 20, 2014
Thanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.
The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel. The Ninth Circuit’s summarizes the case thusly:
[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable.
Here is Lise's commentary:
The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA. The Ninth Circuit cited to a Second Circuit case that had a similar holding:
Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA. Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).
This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.
Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.
Friday, November 1, 2013
Monday, October 14, 2013
David Yamada has just posted on SSRN his article The Legal and Social Movement Against Unpaid Internships, (forthcoming, Northeastern University Law Journal), which emerged from a spring symposium at Northeastern Law. Here's the abstract:
Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in June 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movie “Black Swan” were owed back pay under federal and state wage and hour laws.
This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.
In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.
David's article discusses legal developments as recent as this month. As he points out, there are now over a dozen pending intern lawsuits for unpaid wages, and it looks like this issue will be a lively one. Only two weeks ago a federal district court in New York held that an unpaid intern could not sue her internship provider for sexual harassment under the NYC Human Rights Law because the lack of compensation rendered her unable to meet the definition of an "employee". David wrote it up on his blog here.
Sunday, September 29, 2013
On September 26, 2013, Governor Jerry Brown signed into law AB 241,extending overtime protection for California domestic workers who spend a significant amount of time caring for children, elderly and people with disabilities. Last week, the federal Department of Labor finalized rulesthat significantly extend federal minimum wage and overtime protections to domestic workers who care for the elderly and people with disabilities as well as those hired by third-party agencies.
These two significant changes to federal and state law will end nearly 75 years of exclusion of domestic workers from basic wage and hour protection.
The Women's Employment Rights Clinics of Golden Gate University School of Law has served as legal counsel to the California Domestic Workers Coalition, which sponsored AB 241. It has been a momentous journey for its students and the Clinic to be part of grassroots worker-led movement to redress the unfair and unequal treatment of domestic workers.
Thanks to Hina Shah for letting us know.
Friday, September 20, 2013
On September 12, 2013, the Solicitor of Labor, M. Patricia Smith, issued a letter to the American Bar Association responding to the ABA’s request for confirmation that law students interning at for-profit law firms and working on pro bono matters need not be paid. The Solicitor concluded that such internship programs would fall under the FLSA’s narrow “intern exclusion.” In so finding, she noted:
Where the program is designed to provide a law student with professional practice in the furtherance of his or her education and the experience is academically oriented for the benefit of the student, the student may be considered a trainee and not an employee. Accordingly, where a law student works only on pro bono matters that do not involve potential fee-generating activities, and does not participate in a law firm’s billable work or free up staff resources for billable work that would otherwise be utilized for pro bono work, the firm will not derive any immediate advantage from the student’s activities, although it may derive intangible, long-term benefits such as general reputational benefits associated with pro bono activities.
While the need to have our students gain practical experience while in law school is of growing importance, the DOL’s position too quickly discounts the benefits accruing to these law firms from this source of unpaid labor. The ABA’s own Model Rule of Professional Conduct 6.1 makes clear that “every lawyer has a professional responsibility to provide legal services to those unable to pay” and “should aspire to render at least (50) hours of pro bono publico legal services per year.” It would seem that these firms are discharging their ethical obligation under Rule 6.1 by using these unpaid interns. Further, unless the firm was providing more than 50 hours of pro bono services prior to the internship, the pressence of the unpaid intern doing pro bono work is always freeing up staff resources for billable work. The Solicitor never explains why that is not “an immediate advantage” from the intern’s activities which would make the unpaid internship unlawful. Nor is the more basic question addressed: Is paying a law student $7.25 per hour too much to ask?
Washburn University School of Law
Tuesday, September 17, 2013
The Department of Labor has just announced a significant change for home-health care workers. As many readers know, these workers have thus far been excluded from the FLSA minimum wage and, more importantly, overtime protections. Under the rule, home care workers will no longer be treated as excluded babysitters and others who provide "companionship services" under the FLSA. However, perhaps recognizing the impact of the change, the rule isn't to take effect until January 1, 2015 (that's not a typo).
This change was propsed in 2011 as part of the rulemaking process. The operative part of the rule, described by Steven Greenhouse in a NY Times article:
Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services” — defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance — are limited to the individual, family or household using the services.
If an aide or companion provides “care” that exceeds 20 percent of the total hours er or she works each week, then the worker is to receive minimum wage and overtime protections.
Tuesday, September 3, 2013
Brishen Rogers (Temple) has just posted on SSRN his new article entitled: Justice at Work: Minimum Wage Laws and Social Equality.
Here is the abstract:
This article develops a new normative defense of minimum wage laws. Existing legal academic debate asks how effectively such laws deliver resources to the working poor compared to transfer programs such as wage subsidies and negative income taxes. Such transfers have clear advantages in terms of redistribution, for they target the poor rather than all workers, and they do not cause unemployment. Legal scholars have therefore criticized minimum wage laws both on utilitarian grounds of aggregate wealth maximization and on liberal egalitarian grounds of fairness toward society’s worst-off.
Accepting for the sake of argument that minimum wage laws cause inefficiency and unemployment, this article nevertheless defends them. It draws upon philosophical arguments that a just state will not simply redistribute resources, but will also enable citizens to relate to one another as equals. Minimum wage laws advance this ideal of “social equality” in two ways: they symbolize the society’s commitment to low-wage workers, and they help reduce work-based class and status distinctions. Comparable tax-and-transfer programs are less effective on both fronts. Indeed, the fact that minimum wage laws increase unemployment can be a good thing, as the jobs lost will not always be worth saving. The article thus stands to enrich current increasingly urgent debates over whether to increase the minimum wage. It also recasts some longstanding questions of minimum wage doctrine, including exclusions from coverage and ambiguities regarding which parties are liable for violations.
As Congress will no doubt be debating the raising the minimum wage soon, Brishen provides an excellent argument for why the US should follow an approach that embraces both an increase in the minimum wage (to a level beyond poverty wages) and a wage subsidy in the form of the Earned Income Tax Credit (EITC) or something similar. As Robert Reich recently argued on YouTube, both a higher minimum wage and EITC are an essential part of rebuilding this nation's economy with better paying jobs. Brishen's article provides another important justification for raising the minimum wage.
Tuesday, June 11, 2013
Earlier today Judge William H. Pauley in the U.S. District Court for the Southern District of New York handed down an important opinion in Glatt v. Fox Searchlight Pictures, Inc. The case involves the hot topic of whether interns working on the film Black Swan were really employees who should have been paid at least minimum wage. The court granted the plaintiffs summary judgment on that issue, ruling that they were indeed employees.
The court relied on the Department of Labor's multipart test, for determining when an intern is legitimately a non-employee. The court rejected Searchlight's argument that it should rely on a balancing test weighing who received the primary benefit from the internship. That balancing test, the court ruled, was subjective and unworkable for employers. Some interns will learn more than others, and it may not even be possible to know who is the primary beneficiary until the end of the internship.
Another plaintiff, who worked as an intern for the Fox Entertainment Group at its headquarters in New York was allowed to pursue her action as a collective action under the New York Labor Law and a collective action under the FLSA.
This is an important development in the wage and hour/misclassification arena, an area of litigation that is growing. The legality of unpaid internships has been a big focus lately, in a wide variety of contexts, including in the legal field. We'll have to see if this inspires suits in more industries. My prediction is that it will.
Tuesday, April 16, 2013
Today's second Supreme Court decision, Genesis Healthcare v. Symczyk, dealt with pre-certfication FLSA class actions. The Court (in another 5-4 decision), held that when the employer offered a settlement that would satisfy all of the named plaintiff's claims, the class action is moot. There appeared to be factual questions about whether the settlement would've actually satisfied all the claims, but that issue was not challenged. This holding wasn't a surprise given the Court's precedent on dismissing class actions; the few exceptions to pre-certification mooting were a stretch here. That said, the dissent strongly pointed out many of the problems that this line of reasoning poses for plaintiffs. The Court's syllabus:
Respondent brought a collective action under the Fair Labor Standards Act of 1938 (FLSA) on behalf of herself and “other employees similarly situated.” 29 U. S. C. §216(b). After she ignored petitioners’ offer of judgment under Federal Rule of Civil Procedure 68, the District Court, finding that no other individuals had joined her suit and that the Rule 68 offer fully satisfied her claim, concluded that respondent’s suit was moot and dismissed it for lack of subject-matter jurisdiction. The Third Circuit reversed. It held that respondent’s individual claim was moot but that her collective action was not, explaining that allowing defendants to “pick off” named plaintiffs before certification with calculated Rule 68 offers would frustrate the goals of collective actions. The case was remanded to the District Court to allow respondent to seek “conditional certification,” which, if successful, would relate back to the date of her complaint.
Held: Because respondent had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness, her suit was appropriately dismissed for lack of subject-matter jurisdiction. Pp. 3–12.
(a) While the Courts of Appeals disagree whether an unaccepted Rule 68 offer that fully satisfies a plaintiff’s individual claim is sufficient to render that claim moot, respondent conceded the issue below and did not properly raise it here. Thus, this Court assumes, without deciding, that petitioners’ offer mooted her individual claim. Pp. 3–5.
(b) Well-settled mootness principles control the outcome of this case. After respondent’s individual claim became moot, the suit became moot because she had no personal interest in representing others in the action. To avoid that outcome, respondent relies on cases that arose in the context of Rule 23 class actions, but they are inapposite, both because Rule 23 actions are fundamentally different from FLSA collective actions and because the cases are inapplicable to the facts here. Pp. 5–11.
(1) Neither Sosna v. Iowa, 419 U. S. 393 , nor United States Parole Comm’n v. Geraghty, 445 U. S. 388 , support respondent’s position. Geraghty extended the principles of Sosna—which held that a class action is not rendered moot when the named plaintiff’s individual claim becomes moot after the class has been duly certified—to denials of class certification motions; and it provided that, where an action would have acquired independent legal status but for the district court’s erroneous denial of class certification, a corrected ruling on appeal “relates back” to the time of the erroneous denial. 445 U. S., at 404, and n. 11. However, Geraghty’s holding was explicitly limited to cases in which the named plaintiff’s claim remains live at the time the district court denies class certification. See id., at 407, n. 11. Here, respondent had not yet moved for “conditional certification” when her claim became moot, nor had the District Court anticipatorily ruled on any such request. She thus has no certification decision to which her claim could have related back. More fundamentally, essential to Sosna and Geraghty was the fact that a putative class acquires an independent legal status once it is certified under Rule 23. By contrast, under the FLSA, “conditional certification” does not produce a class with an independent legal status, or join additional parties to the action. Pp. 7–8.
(2) A line of cases holding that an “inherently transitory” class-action claim is not necessarily moot upon the termination of the named plaintiff’s claim, see, e.g., County of Riverside v. McLaughlin, 500 U. S. 44 , is similarly inapplicable. Respondent argues that a defendant’s use of Rule 68 offers to “pick off” a named plaintiff before the collective-action process is complete renders the action “inherently transitory.” But this rationale was developed to address circumstances in which the challenged conduct was effectively unreviewable because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course, and it has invariably focused on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant’s litigation strategy. Unlike a claim for injunctive relief, a damages claim cannot evade review, nor can an offer of full settlement insulate such a claim from review. Putative plaintiffs may be foreclosed from vindicating their rights in respondent’s suit, but they remain free to do so in their own suits. Pp. 8–10.
(3) Finally, Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326 , does not support respondent’s claim that the purposes served by the FLSA’s collective-action provisions would be frustrated by defendants’ use of Rule 68 to “pick off” named plaintiffs before the collective-action process has run its course. In Roper, where the named plaintiffs’ individual claims became moot after the District Court denied their Rule 23 class certification motion and entered judgment in their favor based on defendant’s offer of judgment, this Court found that the named plaintiffs could appeal the denial of certification because they possessed an ongoing, personal economic stake in the substantive controversy, namely, to shift a portion of attorney’s fees and expenses to successful class litigants. Here, respondent conceded that petitioners’ offer provided complete relief, and she asserted no continuing economic interest in shifting attorney’s fees and costs. Moreover, Roper was tethered to the unique significance of Rule 23 class certification decisions. Pp. 10–11.
656 F. 3d 189, reversed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.
Friday, March 29, 2013
Earlier this month, Portland, OR became the fourth city to require employers to provide sick leave to workers. Leave is earned on an hourly basis up to five total days in a year. Employers of six or more employees must provide paid leave while smaller employers can provide the leave unpaid.
New York City is poised to become the fifth. The city council approved a bill that would require employers with 20 or more employees to offer paid sick leaves next year. The requirement would extend to employers with 15 or more the following year. All employers would have to provide at least unpaid leave. Mayor Bloomberg has pledged to veto it, stating that it will hurt job growth, but there is enough support on the city counsel to override that veto. This is a particularly important development for workers and employers, coming on the heels of the state legislature having just raised the state minimum wage to $9.
Monday, January 7, 2013
Wage and hour litigation against Wal-Mart is not that unusual, and class actions have been not only brought but won, so maybe my title is a little misleading. Still, the group of workers bringing the class action is new-ish and the case may actually have bigger implications outside of Wal-Mart for other businesses.
Josh Eidelson at the Nation reports that earlier today District Court Judge Christina Snyder issued a "tentative ruling" that she intends to grant a request to add Walmart as a named defendant in a federal class action lawsuit over wage and hour violations, or "wage theft," and at a California distribution center and retaliation for filing a suit about those violations. Judge Snyder is hearing arguments this afternoon, but apparently signaled that unless she hears something pretty compelling, she plans to rule that Wal-Mart is an employer of these employees and can be named as a defendant.
Unlike in the original Dukes litigation, the class is relatively small, so however this case proceeds, it won't present the same kind of problems the Supreme Court identified in its decision in that case. This class is made up of workers from just three warehouses. The interesting twist here, one that could impact Wal-Mart in a way the Dukes plaintiffs were trying to and one that may have very far reaching implications, involves the way Wal-Mart structures its distribution chain. The relationships are complicated. Wal-Mart subcontracts its distribution and storage. In this area it is to Schneider Logistics. Schneider, in turn, subcontracts the work in the warehouses to various subcontractors. Last fall, the District Court for the Central District of California ruled that Schneider was an employer of these workers, and they were not employed solely by the subcontractors. Now the question is whether Wal-Mart is also an employer.
The allegations about the level of control Wal-Mart exercised over the warehouses and the work are similar to the kinds of allegations that made up the Dukes' plaintiffs argument that everything was centralized with a common de facto policy. Here, though, that argument will likely have much more effect, since the issue is the level of control exercised by Wal-Mart over the day-to-day work of these employees.
Logistics warehouse working conditions and efforts by retail giants to keep costs low by using temporary workers or subcontractors have garnered some attention in recent years. We'll have to watch as the case develops.
h/t Matt Dimick (SUNY)
Monday, November 12, 2012
Tuesday, October 23, 2012
Janie Chuang (American U.) has just posted on SSRN her article (forthcoming 36 Harv. J. L. & Gender (2013)) The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange. Here's the abstract:
The Article exposes how the legal categorization of au pairs as “cultural exchange participants” is strategically used to sustain – and disguise – a government-created domestic worker program to provide flexible, in-home childcare for upper-middle-class families at below-market prices. The “cultural exchange” subterfuge has created an underclass of migrant domestic workers conceptually and structurally removed from the application of labor standards and the scrutiny of labor institutions. On the one hand, the “cultural exchange” rubric enables the U.S. government to house the program under the Department of State rather than Labor, and to delegate oversight of this government program to private recruitment agencies that have strong financial incentives to overlook and even hide worker exploitation. On the other hand, the “cultural exchange” rhetoric used in the au pair program regulations and practice reifies harmful class, gender, racial biases and tropes that feed society’s stubborn resistance to valuing domestic work as work worthy of labor protection. Together these dynamics render au pairs vulnerable to abuse, and threaten to undermine the tremendous gains otherwise being made on behalf of domestic workers’ rights. The Article concludes with a proposal to reform the au pair program with an eye to promoting decent working conditions for all domestic workers.
Thursday, October 18, 2012
He just received a decision denying discovery for his plaintiff’s immigration status: Reyes v Snowcap Creamery, Inc., -- F. Supp. 2d ---, 2012 WL 4888476 (D. Colorado Oct. 15, 2012).
Scott provides some background on the case and his own particular interest in the subject matter of the case:
To try to prove undocumented immigrant status, and to fish for potentially relevant documents, the employer sought, and had been granted by the Magistrate Judge, discovery of not only plaintiff’s immigration status, but plaintiff’s immigration attorney’s files and ICE files; plaintiff actually was to sign releases allowing production of the latter two files. We appealed the Magistrate Judge’s ruling, and the District Judge reversed in full, denying any immigration status discovery with very broad language that “a plaintiff's immigration status is irrelevant in an FLSA action” and that even though there may have been some relevance to some of the discovery (e.g., immigration documents with job descriptions pertinent to whether plaintiff was FLSA-exempt), immigration discovery still should be denied “because of the in terrorem effect that discovery into such issues would have on litigants.”
This issue has been an old passion of mine ever since the Supreme Court in 2002 held in Hoffman Plastic Compounds that undocumented immigration status precludes certain post-termination pay continuation damages; at the time, my plaintiff-side employment law firm was terrified that the ruling would kill our FLSA practice, because so many wage claims are by immigrants. I had to litigate a motion on that issue almost immediately after Hoffman, and I got the first reported decision in the country holding that even if Hoffman makes immigration status relevant to post-termination pay continuation damages, immigration status remains irrelevant, and too prejudicial to be allowed in discovery, in FLSA unpaid wage cases: Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191 (S.D.N.Y 2002). Liu is cited in our new decision, which is now the first decision District of Colorado holding the same – that in FLSA cases, immigration status is irrelevant and too prejudicial to be allowed in discovery.
This is a very interesting and important FLSA case and we appreciate Scott sharing his litigation experience in this case with us.
Orly Lobel (San Diego) was on Huff Post Live yesterday discussing unemployment insurance. Her discussions start about 4:00, 10:00, 17:00, and 21:00 into the segment. She does a nice job of explaining how unemployment insurance works, on a segment that overall is about fraud/abuse. She also does a nice job of turning the discussion from "how dare millionaires receive UI" to a reminder that UI is an insurance system that everyone who pays into the system is entitled to benefit from.
Monday, October 15, 2012
Nantiya Ruan (Denver) has just posted on SSRN her article What's Left to Remedy Wage Theft? How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers (forthcoming Mich. St. L. Rev.). Here's the abstract:
For low-wage workers who suffer “wage theft” – employers illegally withholding portions of their wages – the dollars missing from their paychecks violate existing law and significantly impact the well-being of individuals, families, and communities. Despite this dire societal problem, the Supreme Court continues “closing the courtroom doors” in two ways: allowing employers to force workers out of court and into private arbitration; and prohibiting aggregate claims. Such trends, in combination, silence wage theft, leaving many claims unheard while unscrupulous employers gain direct advantage.
This Article explains how various procedural rulings have combined to prevent meaningful redress for wage theft. Because of high transaction costs and relatively low potential damages, low-wage workers are likely to recover their lost wages only if they band together with similarly-situated workers in an aggregate lawsuit. However, collective action is under attack: AT&T Mobility v. Concepcion, the latest Supreme Court case to approve of mandatory arbitration clauses, allowed a corporation to impose “agreements” mandating individual arbitration and barring class actions.
This Article brings new insights into the widening blind spot the Supreme Court has for the impact procedural rules have on the substantive rights of low-wage workers. Moreover, it touches upon a greater trend in American jurisprudence of courts shutting out plaintiffs, especially those unlikely to afford legal representation. By drawing attention to the unjust effects of facially neutral rules on low-wage workers, this Article contributes to the national conversation on how Supreme Court precedent limiting judicial access affects society’s most vulnerable.
Yet another reason why Concepcion was wrongly decided.