New York Employment Attorneys Blog

Xeudan "Diana" Wang worked at Harper's Bazaar, an upscale women's fashion magazine, five days per week and eleven hours per day from August 2011 to December 2011. She was responsible for tracking down the thousands of purses, shoes, and pieces of jewelry lent to the magazine for photo shoots. She also had managerial and secretarial duties, supervising eight interns working beneath her and answering the accessories director's phone. However, as an intern herself, she was not paid for any of this.

Wang decided to sue the Hearst Corporation, the mass media giant founded by William Randolph Hearst that owns Harper's Bazaar, for allegedly violating the Fair Labor Standards Act and New York Labor Law. She claimed that her and the thousands of other interns that worked for Hearst Corporation owned magazines made up a class for the purposes of a class action. Wang enlisted the help of Outten & Golden, specialists in wage-and-hour and misclassification cases, who sought class action status for, "All persons who have worked as unpaid interns at Hearst Magazines in New York between February 1, 2006 and the date of final judgment in this matter." Xuedan Wang v. Hearst Corp., 2012 WL 1903787, 5 (S.D.N.Y. May 8, 2013).

On May 8, Judge Harold Baer, Jr., a Federal District Judge in the Southern District of New York, denied Wang's motion for class certification. Under the requirements of Rule 23(a-b), Wang had to show, inter alia, that there were questions of law or fact common to the class and that they predominate over any questions affecting only individual members. Judge Baer decided that the commonality and predominance requirements were not satisfied because Plaintiffs "could not show anything more than a uniform policy of unpaid internship", and there was "no uniform policy among the magazines with respect to the contents of the internship, including interns' duties, their training, and supervision." Xuedan Wang, 2013 WL 1903787, at 7-8.

While the ruling does end the case as a class action, the plaintiffs are free to continue individually, said Richard Reibstein, an attorney at Pepper Hamilton not involved in the case. Wang will face an uphill battle because potential plaintiffs must now opt in to the litigation.

Support for same-sex marriage in the U.S. is increasingly widespread. The last three national Gallup polls have shown at least 50% of Americans in favor; articles like that can create the impression that a new era of tolerance has begun. Sadly, hatred is far from extinguished---other news stories seem ripped from a darker past.

• New York City, for example, is in the midst of a wave of anti-gay violence, epitomized by the murder of Mark Carson.


• The Huffington Post reports that a Texas judge used the morality clause of a divorced couple's child-custody agreement to force an end to the mother's relationship with her current partner, who is female.


• A female Florida teenager was expelled from her high school and is charged with two felonies, all stemming from the actions of her (female) partner's parents. The teen's parents believe their daughter is being targeted because the other parents "see being gay as wrong and they blame [our] daughter."

Thankfully, there is also good news:

• Same-sex marriage was legalized in Minnesota last week.


• Illinois' legislature is reportedly close to having the votes needed to do the same thing.


• The United Kingdom moved closer to granting legal same-sex marriage to its own citizens.

Check out our prior coverage of sexual orientation discrimination. If you have any questions about the current state of anti-discrimination law, contact us today.

At the beginning of the month, an Iowa jury awarded the largest EEOC settlement ever: $240 million for abused, mentally disabled turkey-processing workers.

Now that settlement is being drastically reduced because of a statutory cap.

The judge "said he must limit the judgment to $50,000 per employee, the cap included in the Americans with Disabilities Act for businesses with fewer than 101 workers."' The plaintiffs, who endured inhuman conditions on the job and were set to take home millions each, will now be lucky to be awarded six-figure settlements.

The EEOC is seeking additional compensation for interest and back pay. The Court found that the employer, Henry's Turkey Service, "for decades paid the men $65 per month, or 41 cents per hour."

Last week, an Arizona restaurant called Amy's Baking Company went viral for all the wrong reasons. Amy's had been featured on Kitchen Nightmares, the Fox reality show on which celebrity chef Gordon Ramsay swoops in to save poorly run restaurants. The episode featuring Amy's was notable for being the first time Ramsay had ever prematurely abandoned his effort to help---he found the owners too combative and resistant to change.

Amy's PR problem worsened when the owners appeared to attack their critics on their Facebook page; later they claimed hackers were responsible.

We are interested in this story because Amy's is accused of stealing tips from their wait staff. On Kitchen Nightmares, viewers learned that Amy's pays their servers an hourly rate while pocketing their tips.

It is common---and legal---to pay tipped employees an hourly rate below minimum wage, as long as the workers' tips make up the difference. This is known as a tip credit. Amy's Baking Company's practice is much less common, and probably illegal. A local Arizona news station called the Department of Labor to clarify:

"DOL regulations make clear that under the Fair Labor Standards Act tips are the property of the employee whether or not the employer has taken a tip credit," said [a DOL representative] in an email. "An employer is prohibited from using an employee's tips, whether or not it has taken a tip credit, for any reason other than as a partial credit against its minimum wage obligation to the employee or in furtherance of a valid tip pool (i.e., a pool including only customarily and regularly tipped employees)."

It isn't every day that reality TV provides lessons in labor law.

We wrote recently about the increasing numbers of fast food workers who are striking for a living wage. The Nation points to an eye-opening survey: 84 percent of New York City fast food workers report experiencing "some form of wage theft" in the last year. Fast Food Forward, the campaign supporting the strikes, describes typical violations:

[E]mployees working, without pay, before or after their shift; employees working overtime without being paid time-and-a-half; employees working during their breaks or not receiving breaks; and delivery employees not being reimbursed for expenses like gasoline or safety equipment.

The Nation reports that the New York Attorney General is investigating these claims.

If you have questions about the Fair Labor Standards Act, minimum wage laws, or other employment-related legal matters, contact us today.

Our recent coverage of agricultural labor has included both modern-day slavery on tomato farms in Florida and farm workers who were fired for fleeing from a fire.

Last week, the New York Times reported from another perspective: Americans who want jobs on farms and contend they can't get them due to the abundance of immigrant labor. These displaced workers are mostly black; "the situation is filled with cultural and racial tensions." Litigation is ongoing:

[There are] a number of legal actions containing similar complaints against farms, including a large one in Moultrie, Ga., where Americans said they had been fired because of their race and national origin, given less desirable jobs and provided with fewer work opportunities than Mexican guest workers. Under a consent decree with the Equal Employment Opportunity Commission, the farm, Southern Valley, agreed to make certain changes.

Alarmingly, a manager at Southern Valley provided an explicitly racist explanation for his company's reluctance to hire black workers: "In these communities, I am sorry to say, there are no fathers at home, no role models for hard work. They want rewards without input."

Some Southern Valley laborers are guest workers on H-2 visas. To participate in that program, firms must first attempt to attract American workers; the above-mentioned EEOC litigation found that the farm had failed to meet that requirement. Southern Valley continues to insist, as the Times reports, "that there is no discrimination and that they would prefer to hire locals if they could."

If you have questions about the evolving complexity of employment regulations, contact our expert attorneys today.

Last month, New York City saw historic walkouts by fast food workers seeking better wages (our post).

These heartening demonstrations are spreading. On Wednesday, Daily Kos blogged about the day's action in Wisconsin: "Milwaukee is the fifth city hit by such a strike in the past six weeks; there as in Chicago, retail workers are also joining the strike." If the momentum continues, this summer could turn into a watershed for pro-worker agitation.

The Nation reported on the efforts being made to protect the striking workers:

Under US law, it's generally illegal to "fire" workers for going on strike, but legal to "permanently replace" them--effectively terminating them by refusing to let them come back to work following the strike. Prior to striking, fast food workers in other cities have filed "Unfair Labor Practice" charges with the National Labor Relations Board, alleging law-breaking by management, which potentially protects them from being "permanently replaced."

Unfortunately, the risks remain great. As the same article points out, "[P]ro-labor activists and academics have long argued that the lengthy process for pursuing claims of retaliation, and the limited penalties available, make the law a very weak deterrent against union-busting."

The courage of these workers is inspiring, and a welcome change after "a multi-decade decline in US strikes." As Daily Kos wrote:

This wave of strikes hitting multiple fast food restaurants (and, in some cases, retail stores) in a single city for a day, then showing up in another city, is truly unprecedented. Shoot, the first New York City strike back in November was unprecedented. [....] What other workers should be thinking about following their lead?

As a contextually useful addendum, a shocking statistic: an activist told The Nation that in Milwaukee, the "jobless rate for African-American men [is] over 55 percent." Many of the jobs that are available are almost impossible to live on---but this summer, workers want to change that.

We usually write about wage violations and employment discrimination; workers deserve to be treated fairly. Even more basic, though, is the need for a safe workplace. Recently, headlines about the tragic consequences of unsafe labor practices have been sadly frequent: maimed workers at North Carolina's Royale Comfort Seating, a deadly explosion at a Texas fertilizer plant, and the horrific collapse of a garment manufacturing facility in Bangladesh.

The latter calls for American consumers to re-examine the choices they usually make thoughtlessly. A New Yorker article examines the causes and consequences of the Bangladesh disaster, which is now "one of the worst industrial accidents ever."

The phenomenon of "fast fashion," which calls for new clothes on retailers' shelves at an accelerated pace, is increasing the pressure on manufactures. Garment companies' ever-present drive for higher profits also contributes directly to the poor conditions. The article quotes an M.I.T. professor: "Often, the only way factories can make the variety and quantity of goods that brands want at the price points they're willing to pay is to squeeze the workers." Compounding the problem, in Bangladesh, "labor unions are frowned upon, there's no one to speak up for workers in these factories. So safety becomes an afterthought at best."

The New Yorker article cites a study which showed that suppliers can work with their client (companies like Nike) to improve safety without sacrificing productivity. Government support is also crucial:

[I]n Cambodia the Better Factories Cambodia program, administered by the I.L.O. in collaboration with the Cambodian government, has significantly improved not just working conditions but also workers' rights, even as Cambodia's exports have grown briskly.

Perversely, workers can be punished for protecting their own physical well-being. Gawker recently ran this eye-opening piece about California farm workers who left their work site to take shelter from an approaching wildfire, only to be fired for abandoning their positions. Fortunately, all were offered their jobs back---but it is easy to imagine this same story playing out with less media attention and reaching a much different result.

The Harman Firm supports safe workplaces for employees everywhere. Contact us if you have any questions about safety regulations or employment law.

Last week, the D.C. Circuit dealt a blow to workers' rights: the Court ruled against a National Labor Relations Board (NLRB) rule, proposed in 2010, that required businesses to display posters informing workers of their right to organize.

The A.F.L.-C.I.O. president criticized the ruling:

"In today's workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The circuit court's ruling suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages and many other areas."

The Fourth Circuit is "also reviewing the legality of the poster rule." (The current NLRB is itself in judicial limbo, pending a Supreme Court appeal.)

In March, we wrote about the use of credit checks by employers to discriminate against job applicants.

The good news: the city of Chicago has recently outlawed the practice. "Business groups" lobbied against the measure, according to the Chicago Tribune, but workers' advocates won the city council over:

A union representative, an employment coordinator for a human rights group and a lawyer with the Illinois attorney general's office all told the council's Human Relations Committee that a troubled credit history has no relationship to poor job performance or theft on the job.

The officials also cited studies that indicate about a third of credit reports contain errors.

(Emphasis added.)

In Chicago, credit history is now a legally protected category in employment decisions.

The bad news: credit history discrimination is not going away any time soon. The New York Times tells the heartbreaking story of Alfred J. Carpenter, whose credit score is preventing him from working entirely: "'There's no reason,' he said, 'a strong, able guy like me should have to go on welfare.'"

Like millions of Americans, Carpenter's life has been hobbled by medical debt incurred when he was without health insurance. Consumerist collected more stories like his, along with a glimmer of hope for top-down help: "There are legislators out there trying to wipe medical debt off credit reports entirely, including Senator Jeff Merkley of Oregon, who recently reintroduced the Medical Debt Responsibility Act of 2013." Unfortunately, "a similar bill didn't make it far before petering out."

On a state-by-state level, legislation has more momentum: the Times reports that since 2010, seven states have enacted laws against checking credit history to vet job applicants; there are now nine such states total. New York City and New York State are both "considering strict new laws that would greatly limit an employer's ability to do credit screening."

The Times captured the harm that credit history discrimination causes to workers by quoting Chi Chi Wu, a lawyer at the National Consumer Law Center:

"Someone loses their job," Ms. Wu said, "so they can't pay their bills -- and now they can't get a job because they couldn't pay their bills because they lost a job? It's this Catch-22 that makes no sense." It can also be a kind of backdoor job discrimination, Ms. Wu contends, given the numerous studies that demonstrate that those black, Latino or simply poor are more likely to have lower credit scores than those who are white and have means.

(Emphasis added.)

The Harman Firm supports continued legislation against this prejudicial practice. Contact us today if you have questions about discrimination in the workplace.

In 1996, California enacted Proposition 209, essentially ending affirmative action in the state by making it illegal for public entities to "[give] preferential treatment [...] on the basis of race, sex, color, ethnicity, or national origin."

Since 2001, the Los Angeles city government has tried to get around this ban. Their goal: granting 22% of their contracts to female and minority applicants.

Bloomberg reports that this effort has failed: "[F]irms owned by white men won 92 percent of the $2.1 billion in contracts awarded by the city, though they're just 14 percent of the population."

NYC also struggles mightily on this count, although it improved a little in 2011-12:

In New York, not covered by an affirmative action ban, 7.1 percent of $4.5 billion in contracts subject to racial and gender preferences went to firms owned by minorities and women in the year that ended in June 2012, according to a city report card. A year earlier, such firms accounted for 5.1 percent of contracts.

Last weekend, the New York Times ran an excellent and apropos piece: "How Social Networks Drive Black Unemployment." Written by Nancy Ditomaso, an academic, the article examines the effects of social and familial connections on job hunting. Unsurprisingly, personal contacts are a crucial resource for almost everyone. Ditomaso writes, "In interviews with hundreds of people on this topic, I found that all but a handful used the help of family and friends to find 70 percent of the jobs they held over their lifetimes."

Ditomaso further explains that "social resources are concentrated among whites," and "whites help other whites, especially when unemployment is high." (Emphasis added.) All of this adds up to the suppression of job opportunities---and government contract access---for minorities. As she writes:

[W]hites helping other whites is not the same as discrimination, and it is not illegal. Yet it may have a powerful effect on the access that African-Americans and other minorities have to good jobs, or even to the job market itself.

As the Bloomberg article points out, in its upcoming term the Supreme Court will hear a case that could dramatically alter affirmative action law (Schuette v. Coalition to Defend Affirmative Action). The widespread legal favoritism described by Ditomaso is a perfect illustration of the value of affirmative action programs.

Check out our other posts about racial discrimination, and contact us if you have any questions about employment law.

On Wednesday, the House approved a Republican-designed measure which would allow employees to opt out of receiving overtime pay.

Thankfully, the bill is not expected to gain traction in the Senate, where Democrats still have control.

The legislation is called "The Working Families Flexibility Act"; in return for giving up the legally required 150%-of-normal (or "time and a half") rate of pay for weekly hours worked over 40, workers would receive additional future time off.

The Boston Globe captured the problem with this change, which is a wolf in sheep's clothing for workers' rights:

Democrats oppose the law because they say it would allow employers to pressure workers into taking time off instead of overtime wages. They also said it gives employers too much power to decide when an employee can take the additional time off.

Were this bill made law, workers opting out of overtime pay would be granted "50 percent more time off than the number of overtime hours worked" per the same article. Public-sector workers can already make this choice. The measure appears to increase the choices available to private-sector workers, but employers take any chance they can get to reduce payroll; workers who eschew the opt-out could be retaliated against.

As Yahoo! reported:

The measure is part of a broader Republican agenda aimed at expanding the party's political appeal by offering conservative ideas to help average Americans on issues like economic growth and job creation.

But average Americans would actually be harmed. The Globe pointed out that firms might discriminate against prospective hires who indicate that they would not give up their right to overtime (a right protected since 1938 by the Fair Labor Standards Act). Furthermore, the legislation contains a broad mechanism by which companies could easily deny the earned extra time off:

The bill allows employers to prevent employees from taking the time off at particular times if it would "unduly disrupt the operations of the employer." [A Massachusetts labor activist] said that means a parent seeking to use earned time off to deal with a sick child, for example, could be denied a leave at a particular time by her employer.

The Harman Firm strongly opposes this bill. Our practice continues to aggressively advocate for workers' rights, including duly owed overtime wages. Contact us with any questions about FLSA protections or other areas of employment law.

When one thinks of "sports," workers' rights and labor issues are not the first things that come to mind. But while American major-sport professional athletes are paid mind-boggling sums, college players are not allowed to be paid at all, even as they bring in enormous revenue for their universities.

This exploitative model of unpaid student-athletes is being challenged. Bloomberg explains:

O'Bannon v. NCAA [is] an antitrust lawsuit filed in 2009 by former UCLA All-American basketball player Ed O'Bannon and a handful of other ex-college athletes, who don't think the NCAA should be profiting from their names and images without sharing the royalty payments.

In their latest filing, O'Bannon's lawyers argue that the case deserves class-action status. If their request is granted, the NCAA would be liable for claims brought not just by the plaintiffs but also by all former athletes. Anyone who has ever played a Division I college sport would instantly be suing for damages for every instance in which his or her image was used in a video game, highlight reel, broadcast or rebroadcast.

Further recent coverage of this subject is available at The Economist.

Last month, New Zealand joined the ranks of nations which have legalized marriage equality.

Substantial victories for civil rights offer opponents the opportunity to argue, Haven't you changed enough? No: as the New Zealand experience demonstrates, sometimes codification is only the beginning of tolerance. (In the United States, the legality of interracial marriage predated its broad acceptance by many years.)

For example, according to the Huffington Post, more than 50,000 Kiwis have signed an anti-equality petition. (The good news: the group that organized the petition is now being "deregistered as a charity".) Many people remain wary of progress. And as this headline illustrates, there will always be isolated pockets of prejudice:

New Zealand McDonald's Employee Reprimanded For Being 'Too Gay,' Told Not To 'Turn' Customers Gay

Thankfully, our laws (and public opinion polling results) are moving beyond that ignorance---in our country, and in the Southern Hemisphere.

Here's the good news: the economy is adding jobs at a rate that leaves economists optimistic. The Labor Department released the employment data for April late last week: those numbers were fairly strong, with 165,000 jobs added. Even better was the government's revisions of the figures from February and March---in both periods, tens of thousands more jobs were created than previously thought.

Altogether, it adds up to a healthy 196,000 jobs added per month since the beginning of 2013. On the other hand, as New Yorker blogger John Cassidy points out, other macroeconomic indicators are less promising: GDP growth, for example, remains weak. More concretely, too many people are still unemployed; the "recovery" is painfully absent for millions. The New York Times reports that "the jobless rate remains far higher than it typically would be this far into a recovery."

As we noted, there haven't been this many Americans unemployed for six months or more since the 1940s.

Particularly worrying: our stubbornly high rates of joblessness for young people. As the Huffington Post points out: "In 2000, the United States had the lowest unemployment rate for 25- to 34-year-olds among countries with large, wealthy economies. By 2011, America had one of the highest youth unemployment rates compared to its peers." Almost 300,000 people holding Bachelor's degrees worked a minimum-wage job in 2012.

High youth unemployment is a disaster not just for the livelihoods of young workers, but entire economies. The Atlantic just ran a sobering piece about Japan's experience with this phenomenon; the Japanese economy has never fully recovered from their 1990 real-estate bust, and underemployment among young people has been a problem ever since. Many young Japanese work "nonregular" positions: "Somewhat akin to temp positions in the U.S., Japan's nonregular jobs pay half as much as regular jobs, offer few benefits, and can be eliminated on a whim."

The evidence indicates that a poor job market for young people is "both a symptom and an agent of economic decline":

Most obviously, financially insecure young adults do not make for mighty consumers; many members of Japan's rising generation of workers can barely afford to rent an apartment, for instance, never mind buy a house. But job instability also impedes professional growth and wastes human potential, and in the long run, these can be more-ruinous developments. Over the past 20 years, as the share of nonregulars in the Japanese workforce has nearly doubled, Japan's productivity has barely improved.

In the 1990s, many unemployed young Japanese were thought of as "slackers"; now it seems clear that there simply were not enough jobs. Perhaps the "Millennial" generation in America is similarly mischaracterized when they are inevitably described as "entitled".

In a small but important step toward breaking the cycle of unemployment, New York City is outlawing unemployment discrimination in hiring. Don't miss the rest of our posts about unemployment, and if you have any questions about employment law, contact our attorneys today.

This alarming story from ABC News is a sad lesson: some firms throw basic decency out the window when a worker's circumstances change.

T Mobile's call center always treated Kristi Rifkin well---until she became pregnant. Frequent bathroom trips interfered with her ability to make her quotas. She attempted to minimize her liquid intake to reduce the need for restroom time, but the "baby was suffering."

Finally, she said, her supervisor pulled her aside and told her to get a note from her doctor explaining that she needed to go the bathroom often. "At that point, I thought my head was going to launch off my shoulders," said Rifkin. "'Are you serious? I need to get a note from my doctor to go to the toilet?' This is a basic biological need.'"

Pregnancy discrimination is per se gender discrimination---although Rifkin says she can't afford an attorney. She may not yet be aware of the fact that many plaintiffs' attorneys work on a contingency basis instead of by the hour, and are compensated by the eventual settlement.

If you have any questions about gender discrimination or have experienced disparate treatment in your workplace, contact The Harman Firm today.