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.
Wednesday, October 10, 2012
Stone explains that "[u]nder the Congressional budget compromise last year, if no budget deal is reached by January 2, there will be a mandatory cut in the budgets of all federal agencies, including a 10 percent cut in the Defense Department budget." Republican-leaning business groups and defense company executives are threatening to send out a million WARN Act notices 60 days before January 2 -- i.e., on November 2. This is notwithstanding a DOL letter advising companies not to issue such WARN notices. That letter states that any potential layoffs resulting from sequestration arespeculative and the particular workers who might be affected is unknown.
Stone warns that:
Obama is likely to bear the brunt of the blame if nearly one million workers receive layoff notices. If WARN notices are widely issued, it could provide Romney with concrete evidence of the precariousness of any asserted jobs recovery and the dangers of another Obama term.
Democrats need a strategy to stop this storm. They need to explain the facts to the American people and make it clear that any company that issues a WARNing is engaged in unwarranted scare-mongering and political manipulation.
Tuesday, October 2, 2012
California Governor Jerry Brown vetoed AB 889, the California Domestic Workers Bill of Rights. See here and here. Bad news for some of California's most vulnerable workers, and a setback for the domestic workers rights movement. Governor Brown's veto message expressed concern that 24-hour care would become too costly and would result in fewer jobs especially since some workers would be paid by the state.
Thursday, September 27, 2012
Monday, September 17, 2012
Noah Zatz (UCLA) writes to tell us of a petition being circulated by academics in California in support of the Domestic Workers Bill of Rights there. Here is the note about the letter being circulated with links to it and to the letter of support from non-academics.
Thank you for agreeing to be one of the sixty-one original signatories to the Letter from Academics to Governor Brown in Support of The Domestic Workers Bill of Rights. Y/our names all appear following the text of the letter, which has now gone live online so that we may invite more colleagues to sign on as well. This is a much appreciated contribution to the campaign and if it is all you can do at this time, thank you! If you do a little more...
The California Domestic Workers Coalition will be delivering our letter to Governor Brown's office next Monday, so if you are willing to forward the link to other interested colleagues, please do so as soon as you are able and they will be added to the letter the Governor receives.
And, finally, if you have time to go to the site yourself and click "sign this petition" online, it will help us track the running tally. This also may in turn make it even easier for you to forward the letter to other colleagues via email, Facebook and Twitter.
Should you know others hoping to sign a petition on this matter, who are not scholars with related interests, please refer them instead to the general petition in support of AB889 atwww.domesticworkers.org.
In Gratitude for your Solidarity,
Kathleen Coll, Stanford & Eileen Boris, UC Santa Barbara
Friday, August 24, 2012
From PJH Law:
An interesting legacy of the Olympic Games may involve London working practices. Many employers, during the period of the Games, embraced flexible working practices to allow employees to watch the Games and to avoid problems travelling to and from work. London law firms were amongst these. Such practices proved to be so successful that the Law Society are now encouraging law firms to adopt flexible working practices beyond the Games and have produced a protocol to assist firms. This includes practical advice, checklists and case studies demonstrating the business benefits and may be of interest to any employers (not just law firms) thinking of adopting such practices. This may not have been a legacy originally envisaged by Team Coe/Beckham etc but will be of significant impact nonetheless.
Thursday, August 23, 2012
As you might recall from our post at the time, the California General Assembly passed the California Domestic Workers Bill of rights, AB889. The bill is now before the California Senate, and the California Domestic Workers Coalition is urging people to take action in support if the bill. As part of that, Amy Poehler has made this PSA.
I love Ms. Poehler, not just because I think she's funny, but also because she's one of the creators of Smart Girls at the Party: Change the World by Being Yourself, a website and YouTube channel that provides a positive multidimensional message for and about girls.
We'll keep you posted on any news related to AB889.
Wednesday, August 22, 2012
Mike Maslanka (of Work Matters fame) has published in Texas Lawyer his predictions for how the two employment cases on the Supreme Court docket will come out, as well as his thoughts on what issues the Court should take up in its next term. See Hot Employment Law Issues at the High Court. This is worth a read.
Friday, August 3, 2012
Thanks to friend of the blog, David Yamada (Suffolk) for brining to our attention been the emerging litigation over unpaid internships during the past year. Apparently, such litigation is starting to heat up.
For a bit more background on what's been going on with this issue, here's a blog post David wrote back in May on the New Workplace blog (which you should check out generally).