Monday, October 6, 2014

SEALS call for participants

SEALS 2015The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.

One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.

And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian.  Here are the details:

The SEALS website is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club  Boca Raton, Florida, from July 27 to Aug. 2.  You can submit a proposal at any time.  However, proposals submitted prior to October 31st are more likely to be accepted.

This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these:  First, SEALS strives to be both open and democratic.  As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group.  In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas.  If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website.  There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity).  Second, there are no "age" or "seniority" restrictions on organizers.  As a result, newer faculty are also free to submit proposals.  Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.


October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, October 2, 2014

Supreme Court grants cert in EEOC v. Abercrombie

ScotusThe Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:

Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.

The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy." 

The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.

The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.

So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.

Cases that directly deal with employment and labor questions:

And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man  from growing a one-half-inch beard in accordance with his religious beliefs.


October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2014

Work Hour Insecurity

In the recent debate over raising the minimum wage, an issue that’s often left out of the conversation is that of work hour insecurity.  An hourly worker’s take-home pay is determined by two variables: her hourly wage and the number of hours she works.  The effect of increasing the hourly wage will be blunted if the worker struggles to find sufficient hours of work.   And more and more workers are struggling, particularly in service-sector jobs.  Service employers like hotels, restaurants, and retail stores are increasingly adopting “just-in-time” scheduling, using sophisticated software to track customer demand and then adjusting workers’ schedules at the last minute in order to meet a pre-set ratio of labor hours to customer demand. 

A recent New York Times article describes the effects of just-in-time scheduling:

  • "A worker at an apparel store at Woodbury Common, an outlet mall north of New York City, said that even though some part-time employees clamored for more hours, the store had hired more part-timers and cut many workers’ hours to 10 a week from 20.
  • As soon as a nurse in Illinois arrived for her scheduled 3-to-11 p.m. shift one Christmas Day, hospital officials told her to go home because the patient “census” was low. They also ordered her to remain on call for the next four hours — all unpaid.
  • An employee at a specialty store in California said his 25-hour-a-week job with wildly fluctuating hours wasn’t enough to live on. But when he asked the store to schedule him between 9 a.m. and 2 p.m. so he could find a second job, the store cut him to 12 hours a week."

The Fair Labor Standards Act doesn’t regulate employers’ scheduling and staffing decisions (except in some narrow circumstances where the statute has been interpreted to require payment of wages to “on call” workers who are “engaged to wait” for work assignments), but some state laws and unions’ collective bargaining agreements do contain guaranteed pay provisions.  These require employers to pay “call-in” and “send-home” pay, or a minimum number of guaranteed hours of pay when a worker is called in to work unexpectedly or sent home early.  These requirements are supposed to disincentivize just-in-time scheduling.  However, as I explore in a forthcoming Harvard Civil Rights-Civil Liberties Law Review article with co-authors Anna Haley-Lock and Nantiya Ruan, the laws are woefully underutilized by workers and relatively easy to work around for savvy employers.

Given the recent public interest in and support for raising the minimum wage, now is an excellent time for additional attention to the problem of work hour insecurity.  In trying to end working poverty, we should be focusing on both wages and hours, and exploring possible solutions (including perhaps expanded guaranteed pay laws) to the problem of work hour insecurity.

-- Charlotte Alexander

August 8, 2014 in Wage & Hour, Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Thursday, June 12, 2014

Ninth Annual Colloquium Registration

WPBJust a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014.  The Colloquium is scheduled in Boulder between September 11-13, 2014.

 You can register and submit a paper proposal at this link:


 Please direct any questions to Melissa Hart (Melissa.Hart@Colorado.EDU) or Scott Moss (Scott.Moss@Colorado.EDU).


June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.


April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Shriver Report Documentary: Paycheck to Paycheck

SHRIVERcovfront-1-144x192Back 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

New Overtime Regulations?

DOLThe 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.


March 13, 2014 in Labor and Employment News, Wage & Hour | Permalink | Comments (1) | TrackBack (0)

Friday, March 7, 2014

The DOL, Law Students, and Internships

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.


March 7, 2014 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Monday, January 27, 2014

Supreme Court Decides Sandifer Donning and Doffing Protective Clothes Case in U.S. Steel's Favor

4United States Supreme Court 112904The 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


January 27, 2014 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Monday, January 20, 2014

Gelernter on In re Wal-Mart Wage and Hour Litigation FAA Case

GelernterThanks 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.


January 20, 2014 in Arbitration, Commentary, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Friday, November 1, 2013

Secunda Waxes Eloquent on the Minimum Wages

MarquetteCongratulations to Paul Secunda, who appeared on Milwaukee Public Television yesterday for an hour-long show on the minimum wage


November 1, 2013 in Wage & Hour | Permalink | Comments (1) | TrackBack (0)

Monday, October 14, 2013

Yamada on Unpaid Internships

DyamadaDavid 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.


October 14, 2013 in Scholarship, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Sunday, September 29, 2013

California Acts on Overtime for Domestic Workers


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.


September 29, 2013 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

DOL Excuses Law Firms From Paying Student Interns

DOL 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?

Joe Mastrosimone
Washburn University School of Law

September 20, 2013 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 17, 2013

New FLSA Home Health Care Rule

DOLThe 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.

For more info, see the DOL's special web portal on the rule and the rule itself.


September 17, 2013 in Labor and Employment News, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 3, 2013

Rogers on Justice at Work: Minimum Wage Laws and Social Equality

Rogers_profileBrishen 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.


September 3, 2013 in Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 11, 2013

Big win in fight against unpaid internships

InternsEarlier 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.


June 11, 2013 in Labor and Employment News, Wage & Hour | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 16, 2013

Suprem Court Holds That Employer's Offer Moots FLSA Class Action Prior To Certification

Supreme CourtToday'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.



April 16, 2013 in Wage & Hour | Permalink | Comments (2) | TrackBack (0)

Friday, March 29, 2013

Sick Leave Updates

Paid sickEarlier 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.


March 29, 2013 in Labor and Employment News, Pension and Benefits, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2013

The Next Big Wal-Mart Class Action Wave?

CoinsWage 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)


January 7, 2013 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)