New York Employment Attorneys Blog

By Ciera Ambrose and Edgar M. Rivera, Esq.

Wage theft is the illegal withholding of wages or the denial of benefits that are rightfully owed to an employee. Examples include the failure to pay overtime, failure to pay minimum wage, employers taking illegal deductions from employees’ pay, employees working off the clock, and, at its most extreme, employers not paying their employees at all. Wage theft is common among low-wage workers because these workers generally lack the resources to protect themselves from abusive employers and to assert their rights. Immigrant workers are uniquely vulnerable because their employers often illegally threaten to report them to immigration authorities after affected employees complain.

In the United States, the Fair Labor Standards Act (FLSA) prohibits wage theft; however, the U.S. Department of Labor estimates that about 70% of employers are noncompliant. Workers are robbed between $40 and 60 billion each year, which exceeds the total amount stolen through robbery, burglary, larceny, and auto theft combined, making employers the number one perpetrators of theft in the United States.

The FLSA protects employees from wage theft in all forms and requires employers to keep time records of their employees. Regardless of how small and voiceless a worker may feel going against large, powerful corporations, the FLSA exists to empower workers to bring claims against noncompliant employers and preserves their right to earn a fair living.

In Peralta v Paramount Citrus Cooperative, agricultural workers commenced an action against Paramount Citrus Cooperative (PCC), the United State’s largest fresh citrus grower, accusing PCC of a variety of FLSA violations. PCC paid its agricultural workers piece-rate compensation based on the number of citrus bundles they harvested. This payment scheme resulted in workers being paid less than minimum wage for hours worked at the piece-rate, and not being paid at all for hours they had to wait for work, carry equipment, and travel to and from work sites, and breaks. In addition, PCC released many workers at the end of the season without paying them at all.

Although piece-rate compensation is a legal way to pay employees, employees paid on a piece-rate basis are not exempt from the various requirements of the FLSA, including minimum wage, overtime, and record keeping obligations. Piece-rate compensation schemes are often used in circumstances where the time it takes an employee to complete a task is not relevant; however, this methods should only be used if the employee does not work more than forty hours in a workweek and the employee’s total compensation for the week averages at least the applicable minimum wage.

Employers frequently violate the law by failing to understand the requirements the FLSA imposes. If you believe your employer has discriminated against you with regard to wage theft, please contact The Harman Firm, PC.

By Edgar M. Rivera, Esq.

Recently, a federal district court sanctioned Wal-Mart for spoliation of evidence in an employment litigation case.

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property when litigation is reasonably foreseeable. Once on notice of a potential legal claim, an employer must preserve all evidence relevant to a charge or action until its final disposition. The harmed party carries the burden to prove: (1) the evidence existed at one time; (2) the alleged offending party was under a duty to preserve the evidence; and (3) the evidence was crucial to the harmed party being able to prove its case or defense. Spoliation remedies include striking the offending parties pleading, instructing the jury that it may infer that the missing evidence, if available, would have inculpated the spoliator, or precluding testimony at trial. In crafting an appropriate sanction, courts consider whether the harmed party was prejudiced as a result of the destruction of evidence; whether the prejudice could be cured; the practical importance of the evidence; and whether the offending party acted in good faith.

In Abdulahi v. Wal-Mart Associates, Abdulahi, an American citizen of Ethiopian national origin, brought a claim against Wal-Mart alleging national origin and age discrimination. The Wal-Mart store’s co-manager, Stephen Ray, harassed Abdulahi, mocked his accent, pretended not to understand him, and reminded Abdulahi how lucky he was to work in America. The store manager, Sean Spratt, directed Ray to apologize to Abdulahi; however, rather than cease his harassment, Ray had another co-manager, Michael Schneider joined in. They made stereotypical comments about Abdulahi’s age, condescended to him, and falsely called him “forgetful.” Abdulahi again complained to Wal-mart’s store manager, now Demetrius Jackson, Spratt’s replacement. Jackson assured Abdulahi that the situation would be fixed; however, he told Abdulahi not to seek promotions or raises because he would not recommend him. Within a few days, Abdulahi received his first negative performance review in his fifteen years of employment with Wal-Mart. Abdulahi wrote a letter to Wal-Mart’s market human resource manager, Shawn Cohen, addressing his co-managers and manager’s conduct. Almost immediately after Abdulahi sent the letter, Jackson began to urge Abdulahi to resign. In response, Abdulahi filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Shortly thereafter, Ray terminated Abdulahi claiming that Abdulahi had left the gate to the “Garden Center” open during his shift. Abdulahi responded that this was false; the Garden Center doors had been locked.

Wal-Mart claimed to have had video footage supporting their defense that Abdulahi was terminated for leaving the gate open; however, the video was written over as a matter of the company’s routine video storage and re-use practices. The video footage was the only way to establish that the gates were locked and that Wal-Mart’s proffered reason for terminating Abdulahi was pretext.

The court agreed with Abdulahi, and sanctioned Wal-Mart for failing to preserve the video footage. Wal-Mart was on notice that litigation was reasonably foreseeable after Abdulahi had filed his discrimination charges with the EEOC. The court’s sanction was painful–a jury instruction stating that the destruction of the video footage created a presumption that Wal-Mart’s proffered reason for terminating Abudlahi was pretext, and the real reason for his termination was retaliation for his complaints of discrimination and his filing of EEOC charges.

Decisions like these show that employers cannot get away with destroying harmful evidence. If you believe your employer has discriminated against you, please contact The Harman Firm, PC.

In a February 3, 2015 Decision and Order, a three-member National Labor Relations Board (NLRB) panel reversed the prior decision of an administrative law judge, finding that the two respondents in Lederach Electric, Inc. constituted a single employer. The two entities, Lederach Electric, Inc. (LEI) and Morris Road Partners, LLC (MRP), thus share liability for $122,229.06 in backpay awarded to four complainants who were allegedly laid off, in violation of the National Labor Relations Act, in retaliation for union membership and activities.

In determining whether nominally separate entities constitute a single employer, the Board considers four factors: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. Not all factors need be present, and no single factor is controlling. In the present case, the Administrative Law Judge who originally decided the case found that factors (2) and (4) weighed in favor of single-employer status, while (1) and (3) did not, and concluded that the two entities were not a single employer. Concerning (2), James and Judy Lederach both participated in managing the operations of the two entities, and concerning (4), they jointly owned 100% of both LEI’s and MRP’s shares. Nevertheless, he concluded, the two entities were not a single employer for purposes of this legal action, because of the other two factors. Concerning factor (1), he concluded that the two entities were not sufficiently interrelated because they “did not share a common business purpose”–LEI was an electrical contractor, while MRP was a management company, and concerning (3) he concluded that the two entities did not share centralized control of labor relations, since MRP never had employees.

The NLRB panel brushed aside these two arguments. First, they found “no merit in the judge’s finding that the absence of a common business purpose is fatal to finding an interrelationship of operations and single-employer status. The Board has found that, notwithstanding the different business purposes between two nominally separate entities, ‘a single employer relationship can be found, particularly where there is evidence of a lack of an arm’s-length relationship between the entities.” In this case, there was clearly not an arm’s-length relationship: the two entities shared a Post Office box, used one another’s equipment. Further, the joint owners of the two entities coordinated their respective financial operations; for example, MRP “forgave” more than $62,000 in rent payments from LEI in order to enable the latter to pay its expenses and employees. Since there was no arm’s-length relationship, the two entities’ different business purposes did not imply that there were not interrelated in the relevant sense.

Second, regarding condition (3), the panel agreed that there was no evidence of centralized control of labor relations. However, in this case the reason for this was that one of the two entities never had any employees, and there is extensive case law supporting the principle that “…where one company does not have employees, it is not appropriate to accord substantial importance to the absence of centralized control of labor relations.”

In the end, the NLRB panel endorsed the prior court’s award of over $122,000 in backpay and damages, and found these two financially distinct entities jointly liable.

If you believe your rights under the National Labor Relations Act have been violated by an employer, please contact The Harman Firm, PC.

On January 14, 2015, the Supreme Court of New Jersey answered a question of law submitted to it by the Third Circuit Court of Appeals regarding the classification of plaintiffs–as employees or independent contractors–in the case Sam Hargrove, et al. v. Sleepy’s, LLC.

Several tests have been used by different courts to decide the status of workers in wage and hour cases. For example, recently the Federal Court for New York’s Southern District has used the “Economic Realities Test” and the “Common Law Test,” each of which considers a long list of factors and each of which specifies that its list of factors is not to be considered sufficient to decide the question. These tests require courts to consider factors such as the degree of control the worker exercised over the tasks they performed, their freedom to engage in other employment, the benefits they received, the determination of their work schedule, and so on.

At the federal level, the Department of Labor’s Wage and Hour Division has offered its guidance regarding the interpretation of the phrase “employment relationship” for the purpose of determining whether a given person should be treated as exempt form the minimum wage and overtime rules of the Fair Labor Standards Act (FLSA). They explicitly state that the issue requires some subjective judgment, for example: “…while the factors considered can vary, and while no one set of factors is exclusive, the following factors are generally considered when determining whether an employment relationship exists under the FLSA (i.e., whether a worker is an employee, as opposed to an independent contractor)…” They then proceed to list six different factors that are themselves unclear.

Noting that this lack of clarity in the law is problematic and frustrates the intention of the relevant statutes, the New Jersey Supreme Court decided to adopt the relatively clearer “ABC Test,” which says that an employment relationship exists between the parties unless all of the following conditions are met:
1. The employer did not exercise control over the individual or have the ability to exercise control in terms of completion of the work;
2. The individual provided services that were outside the usual course of business or performed outside of all of the places of business of the employer; and 3. The individual’s work comes forman enterprise that exists independently and will continue to exist independently after the termination of the relationship between the individual and the employer.

The Court’s reasoning on the issue was decisive, interesting, and consequential (at least) for future New Jersey cases. The “ABC Test,” they conclude, “…provides more predictability and may cast a wider net than the FLSA ‘economic realities’ test. The latter test is guided by six criteria, none of which is determinative. Instead, the test contemplates a qualitative analysis of each case, which may yield a different result from case to case. By contrast, under the ‘ABC’ test, classification as an independent contractor requires that the employer demonstrate that the retained individual satisfies all three criteria. This fosters the provision of greater income security for workers, which is the express purpose of both the WPL and the WHL.”

Three cheers for the New Jersey Supreme Court, for recognizing and trying to address an ongoing general problem in this country’s employment law regime. Hopefully other courts and other jurisdictions will follow suit.

If you believe your employer has avoided paying you minimum wage and/or overtime by misclassifying you as an independent contractor rather than an employee, please contact The Harman Firm, PC.

When Lorenzo Cook was offered a position at Kmart‘s Hyattsville, Md. store, he told the hiring manager that he would not be able to provide a urine sample as part of the company’s pre-employment drug screening because of his end stage renal disease and dialysis. He requested a reasonable accommodation, some alternative method of testing such as a blood or hair test. Kmart refused any such accommodation and ultimately communicated to him their refusal to allow him to take any drug screening test other than a urine test. Mr. Cook then sued the company for discriminating against him on the basis of his disability, and the Equal Employment Opportunity Commission (EEOC) took up his cause.

On January 22, 2015, Judge George J. Hazel of the District of Maryland issued a Consent Decree approving a proposed settlement of Equal Employment Opportunity Commission v. Kmart Corporation et al. Under the agreement, Cook would receive $102,048, representing his lost wages and benefits from the Customer Service Associate position he was denied in early 2010. Mr. Cook was also awarded extensive non-monetary relief: Kmart must provide reasonable accommodation to applicants in Cook’s situation, provide training to managers and employees regarding ADA complaince, change its policies regarding hiring and drug testing procedures, post applicants’ and employees’ rights in public places.

The interesting kernel of this court decision, the reason the EEOC selected this case for its symbolic value, is that the ADA requires employers to provide reasonable accommodation to persons with disabilities, or perceived disabilities, in all stages and areas of employment including the application and interview process. This was a relatively straightforward case of an employer who had several reasonable accommodations available, but chose not to provide any of those accommodations despite having no good reason for failing to do so.

EEOC Philedelphia District Director Spencer H. Lewis, Jr. sums up the point that the Commission was trying to make with this case: “This case demonstrates that the consequences of failing to comply with the ADA can be far more expensive than the actual cost of providing a reasonable accommodation.”

If you believe an employer has discriminated against you on the basis of a disability or perceived disability, please contact The Harman Firm, PC.

On December 29, 2014, the U.S. District Court for the Southern District of New York granted conditional certification of a class of employees who had worked as unpaid interns at Conde Nast, and gave its preliminary approval for a heavily-negotiated settlement agreement, in Ballinger et al v. Advance Magazine Publishers, Inc. Plaintiffs in the lawsuit were Lauren Ballinger and Matthew Leib, along with a class of about 7,500 class members, all interns who received either no pay or a stipend for their services.

Under the agreement, each class member will receive between $700 and $1,900, the two named Plaintiffs would each receive an additional $10,000 in service payments, and Plaintiffs’ attorneys would receive a total of $660,000.

Plaintiffs argue that the two laws at issue in the lawsuit–the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL)–do not contain exceptions for interns, who therefore must be paid (1) minimum wage for all hours worked and (2) premium overtime pay for all hours worked in excess of forty per week. But many companies, Conde Nast included, hire “a steady stream of interns to perform entry-level work that contributes to its magazines’ operations and reduces its labor costs.” These interns are normally unpaid, and when they do receive pay it is normally in the form of a per-semester stipend that is equivalent to less than $1 per hour for the time they spend working.

Even as it approved the proposed settlement, the Court acknowledged that the central issue in this case–whether interns are employees–is “unsettled in this circuit.” The Court cites two S.D.N.Y. cases in which the respective courts reached inconsistent conclusions on this issue. Since both of these decisions are currently under appeal, and forthcoming rulings on these cases could have “a devastating effect on one side’s position” in the present case, “continued litigation of the issue of liability poses a substantial risk to both sides.” The Court concluded that the existence of this risk is a consideration favoring the proposed settlement of the case, making it worthwhile for the class of Plaintiffs to compromise and settle for about 60% of their unpaid wages.

In certifying the class, the Court pointed out that class action was economically sensible due to the fact that members of the class were interns, generally “younger individuals at the start of their careers,” who had limited resources and individually stood to gain only limited awards even if successful.

If you believe your rights under the Fair Labor Standards Act or corresponding State law have been violated, please contact The Harman Firm, PC.

The case Ewald v. Royal Norwegian Embassy et al is emblematic of recent equal pay cases in several disturbing ways. After it was decided to create a new “Honorary Consulate” in Minneapolis, Minnesota, the Norwegian Embassy (“the Embassy”) set a budget of about $150,000 to be divided between two new expert positions to be staffed by local personnel. The purpose of both positions was to “build upon and strengthen the relationship between the Midwest and Norway through focused efforts to increase collaboration in two key strategic areas: (1) business and innovation; and (2) education and research.”

The positions had different titles: one was an “Innovation and Business Development Officer,” and the other a “Higher Education and Research Officer.” However, the written plans for the two positions, their job descriptions, and almost all testimony about the rationale for creating these positions made clear that they were supposed to be parallel, “inextricably linked,” equal-level positions with “almost identical responsibilities.”

Two candidates quickly rose to the top of the two hiring pools. Anders Davidson and Ellen Ewald were informally offered the two positions, each at a salary of $60,000. There was no negotiation with either candidate, although both had earned far more in the private sector prior to accepting their new positions. In both cases, they assumed that the salary they had been offered was fixed by the Embassy’s budet and not negotiable.

Shortly after they had agreed to accept their respective offers, however, something magical happened: the parties immediately responsible for these hiring decisions did some independent research and simply manufactured reasons to pay Davidson more than Ewald. The contracts they ended up offering to these two candidates, for these two ostensibly equal positions, were valued at $100,000 for Mr. Davidson and $70,000 for Ms. Ewald. To argue that this is not a clear violation of the Equal Pay Act and the Minnesota Human Rights Act, the Embassy would have needed some non-gender-based justification for it. They had none.

Officially, the reason for this salary differential was that their research had revealed that a business specialist had a higher market value than an education specialist. But the Court was extremely critical of this “research” process: the hiring managers had inquired about his prior income, but not hers; they had inquired about his need for day care for his children, but not hers; and they had based their decision on about one hour’s worth of completely unspecific research about the relative compensation levels in the fields of business and education (although in fact neither of these positions was in either of those fields). Finally, the Embassy representatives had sought and received approval from high-level administrators to offer Davidson over $40,000 more than Ewald–although the Court ultimately concluded that they did this by intentionally misleading their higher-level administrators.

In addition, Davidson was provided health insurance for himself and his family, while Ewald was told that she would not get the same benefit. The official reason for this was that Ewald’s spouse earned income independently, but there was no question that Davidson’s spouse earned income and he was provided insurance without ever requesting it. He received reimbursement for travel expenses when she did not.

So here we have a case of two people in similar, officially equal-level positions, and the American representatives of the Norwegian Embassy making a gratuitous decision to pay a male employee much more a female employee. One further set of facts makes this situation especially ironic (and given the emotional devastation visited on Ewald through this process, also tragic): she had far more business experience than Davidson had, was more valuable than he was based on previous earnings, and by all accounts performed far better than he did on the job. She was more qualified and more skilled, but earned less and was denied many of the benefits he received. Worst of all, she was embarrassed to discover that Davidson knew that he was earning $40,000 more, and almost everyone in the organization also knew this, but she hadn’t been given this information.

The Court awarded Ewald $170,594 in lost wages and $100,000 for emotional distress damages. The extent to which she will be able to recover from this experience emotionally, and overcome the damage to her reputation, remains to be seen.

Perhaps the Norwegians, who have far more gender-egalitarian policies and work culture, will see this case as a reason to think twice before trusting Americans with any hiring decisions.

If you believe your employer has discriminated against you on the basis of your sex, please contact The Harman Firm, PC.

It is common knowledge that the sustained political activism of Martin Luther King, Jr. over the decade leading up to the passage of the Civil Rights Act of 1964 (CRA) were crucial to its passage . Perhaps somewhat less well-known is that the Act created the Equal Employment Opportunity Commission (EEOC), or that about 12,000 to 20,000 federal civil cases are filed each year alleging employment discrimination in violation of Title VII of the CRA.

These facts alone reveal why King left an indelible mark on our nation’s labor laws. With the passage of the CRA, it became illegal for employers to discriminate against employees on the basis of race, color, religion, sex, or (later) age.

Most people also do not know that Dr. King was extremely active in defense of a different law, the National Labor Relations Act (NLRA), which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages. King spent much of his time joining, speaking to, and leading labor actions; in fact, this is what he was doing in Memphis when he was killed.

(Most people also probably do not know that the United Nations Universal Declaration of Human Rights states that “Everyone has the right to form and to join trade unions for the protection of his interests.”)

King fought for the passage of the CRA to the end, then, and he also fought for the enforcement and the motivating principles behind the NLRA. The CRA set up a vibrant array of regulations and legal institutions for enforcing them. The NLRA set up the NLRB, which exists to protect workers’ rights to organize by enforcing the NLRA, but the NLRB’s regulations and legal institutions are far less effective than those of the CRA. No employer can afford to ignore actions taken against them by the EEOC, but the NLRA “gives businesses a strong incentive to ignore it.” In fact, labor lawyer Thomas Geoghegan has written that an employer would have to be “what economists call an ‘irrational firm’ ” to voluntarily obey the NLRA, given the weakness of its enforcement mechanisms, since the price of ignoring it is minimal.

To strengthen the NLRA, two U.S. Congressmen, both following in Dr. King’s footsteps and acting on the same reasons that animated his efforts, proposed the Employee Empowerment Act in July 2014. The purpose of the act is to make the right of workers to organize a civil right, with the same legal status as the rights protected by the CRA of 1964.

Currently, the only remedies available to people whose employers violate their rights under the NLRA are (i) recovery of back pay, (ii) reinstatement. Beyond this, the NLRB can collect some regulatory damages, impose cease and desist orders regarding anti-union policies or actions, and so on. Complainants are also limited in two other key ways: (iii) they cannot pursue their claims independently, but must rely on the NLRB to pursue it on their behalf, and (iv) they are not offered the opportunity to seek jury trials or compel witness testimony.

All of these things are different for complaints brought under the CRA: an employee whose case succeeds can recover back pay, compensatory damages, punitive damages up to $300,000, attorneys’ fees, and under some circumstances liquidated damages if the alleged violations have been shown to be willful. Generally, then, successful plaintiffs in CRA cases stand to recover much more from defendants and, because of this, companies have reason to take violations of the CRA seriously.

The Employment Empowerment Act stands little chance of passage in the short term, especially in the hands of a Republican congress. But it’s a good idea, and it’s something we ought to do.

If you believe your legal rights have been denied by your employer, please contact The Harman Firm, PC.

In 2011 Washington University professor Michael Honey published a collection of Martin Luther King, Jr.’s speeches to labor unions and workers’ rights coalitions, entitled All Labor Has Dignity. King’s words in these speeches leave no room for doubt about his commitment to organized labor. His message to union organizers and activists was visionary and poetic, but not naive: “fighters for justice,” he would tell them, “will be met with fierce resistance from the economic and political power structure and they must remain firm. They will be called reds, troublemakers, and accused of interfering with property rights…” He knew these revolutionary changes were risky, and that they could only be accomplished through collective action, because the power structure would use all its resources against both of them.

King believed that the struggle for civil rights and racial equality was deeply intertwined with the simultaneous struggle for labor rights. “Our needs are identical with labor’s needs,” he said, “…decent wages, fair working conditions, livable housing, old-age security, health and welfare measures, conditions in which families can grow, have education for their children, and respect in the community.” In fact, King sometimes went further and suggested that civil rights victories would be hollow if not accompanied by economic actions designed to make good-paying jobs available to people. He understood that unionization was the most direct and effective way to generate those kinds of jobs. He also understood that the labor and anti-racism movements each had strong philosophical and pragmatic reasons to embrace each other’s causes as part of their own.

The union movement has been beaten down in recent decades, needless to say. But a society in which 1% of the people own more than 40% of the nation’s wealth, and most people see equality of opportunity as a utopian dream, seems destined for instability. And organized labor has indeed shown new signs of life recently. In fact it is quite easy to imagine Dr. King giving a speech today to the Service Employees International Union, to a packed house of fast food workers. Those in attendance would probably be mostly minorities and women–a fact that wouldn’t be lost on him–but perhaps he could have convinced another generation of us that it still makes sense to believe in, and fight for, the larger cause of economic justice. It is easy to imagine him savagely criticizing the forces that promote inequality and create a class of people who work hard but cannot afford necessities, arguing for progressive social programs.

King believed that, in a society as wealthy as this one, anyone willing to work should be able to earn enough to live with dignity. The only reason this doesn’t happen, when it doesn’t, is that the “power structure” actively opposes any policy that would empower workers, and any effort by workers to empower themselves. In one of his final speeches to the Memphis sanitation workers, King told the workers that labor “…is not menial until you’re not getting adequate wages-all jobs are important. The question is do you have dignity, and respect, and a decent livelihood, based on what you do?”

Before we get too self-satisfied about our achievements in the area of civil rights, then, or too happy about our historical connection with Martin Luther King, Jr., we should examine the inequality statistics, survey the current state of the labor union movement, and then hear the words of Michael Honey himself: “[Dr. King] would be aghast. And appalled (about our current political climate.) He had high hopes for the United States. He was really focusing on the promise of the American Revolution, and ‘all people are created equal,’ and the inherent rights we have…he’d be shocked and appalled at the backward direction of the thinking of so many people. How so many people fail to take in the lessons and experiences of history. We’re in a pretty sad time–a lot of the unions King fought for have been destroyed.”

If you believe your legal rights have been violated by your employer, please contact The Harman Firm, PC.

Each year, this country celebrates Martin Luther King, Jr.’s Birthday on or just after his birthday, January 15. Some iconic words from King’s “I have a Dream” speech are rehearsed in our churches, theaters, over the airwaves, and (if we are lucky) in our families’ living rooms and at our dinner tables. It is our official annual moment to reflect on some of the worst and most shameful events in our nation’s history, but also some of its greatest people and their contribution to the improvement of humanity.

We should keep in mind that the core of Dr. King’s message was a profound criticism of this country: we had not lived up to our founding creed, which is that our shared goal is to care about, improve, and maximize the well-being of every person because we have a right to expect this from ourselves and each other. That these ideals cannot be reconciled with slavery or Jim Crow laws now seems almost too obvious to be worth saying. While most of us try to take this moment to reflect, we can nevertheless also detect a certain disturbing self-satisfaction in America’s celebration of this holiday each year, as if the tension in the plot of our collective story was resolved and there was a happy ending.

We can be sure that, if he were still alive, Dr. King would be talking about all the work that remains to be done in our nation’s historic fight against the forces of oppression on the one side, and resignation on the other. Slavery in its original form has ended. Jim Crow laws now take the much weaker, or at least less visible, form of de facto forms of discrimination that systematically grant unearned privileges to some and undeserved disadvantages to others.

These are great successes, to be sure. But in order to understand King’s real legacy, we simply must understand why congratulating ourselves now for the achievements he helped us to attain would be offensive to his memory. His vision was not reformist, but revolutionary, as we can verify by studying the violence and virulence of his opponents. What he achieved, what we achieved with his guidance, were only baby steps in the direction of the revolution he envisioned and preached about.

In fact, there is a tragic version of this story, and unfortunately the tragic version is closer to the truth. In this version, Dr. King was just getting started before he died, and might eventually have led us far beyond the specifically racial forms of injustice to wrestle with essential questions about the essence of injustice itself, in all its forms–all the different ways we fail to give people all and only what they deserve. But at just that moment, after he had decimated the intellectual foundations of American racism, he was murdered before he could enter the deeper battles that he knew would have to come next: the fight for economic equality and labor rights.

This is the detail that the self-congratulators tend to miss when Martin Luther King, Jr. day comes around each year: he was killed, after all his great speeches and marches and legislative successes regarding race policy, when he went to Memphis to fight for the right of public workers there to form a union. We would do well to think about his reason for supporting those sanitation workers in Memphis.

If you believe your legal rights have been violated by your employer, please contact The Harman Firm, PC.