Articles Posted in Labor

Leah Kessler and Lev Craig

On the third Monday of January each year, we observe Martin Luther King Jr. Day, an occasion to remember, reflect on, and do our best to promote the vision for which Martin Luther King Jr. fought and died. Yet, as a nation, our remembrance of Dr. King’s work often ignores (or, perhaps, those with the power to write history, decided to elide) some of the core goals and values of his activism—among them, his commitment to anti-poverty work, labor organizing, and workers’ rights, issues he viewed as inextricable from his civil rights activism.

While U.S. states and employers now observe Martin Luther King Jr. Day, this was not accomplished easily or without resistance. While President Ronald Reagan officially recognized Martin Luther King Jr. Day as a U.S. holiday in 1983, he initially opposed the holiday (citing “cost concerns”), despite a petition to Congress with more than six million signatures in favor of the holiday. Though President Reagan ultimately passed Martin Luther King Jr. Day into law, it was not actually observed until three years later, and many states continue to resist doing so; in fact, the holiday was not officially observed in all 50 states until 2000. Even today, several states—including Alabama, Mississippi, and Virginia—still choose to “combine” Martin Luther King Jr. Day with observances of holidays recognizing Confederate generals Robert E. Lee and Stonewall Jackson.

By Leah Kessler

On January 2, 2018, five detained immigrants filed a class action against CoreCivic, Inc. (CoreCivic), the second largest private corrections company in the United States. In Owino v. CoreCivic, Inc., the plaintiffs allege forced labor practices and violations of federal and state anti-trafficking laws.

CoreCivic operates nation-wide U.S. Immigration and Customs Enforcement (ICE) facilities, which hold detained immigrants as they await their immigration hearings. The plaintiffs were placed at Otay Mesa Detention Center, a privately-run, 1,500-bed detention facility in San Diego. According to the complaint, CoreCivic forced plaintiffs and other detainees to provide labor at a daily rate of $1 to $1.50 upon threat of solitary confinement. Moreover, the plaintiffs claim that CoreCivic’s practices also violate state and federal regulations by forcing detainees to work so they can obtain basic necessities, such as warm clothing, water, food, medicine, and hygiene products, that CoreCivic would otherwise withhold from them.

Leah Kessler

On Tuesday, November 28, 2017, the U.S. Supreme Court heard oral arguments in the case of Digital Realty Trust, Inc. v. Paul Somers. While the Supreme Court’s ruling on this case is not expected until next June, the outcome, as well as the arguments made this week, have serious ramifications for the accepted legal definition of “whistleblowing” and the protections that definition provides.

Paul Somers was the Vice President at Digital Realty Trust, Inc., from 2010 to 2014, during which time he filed reports to senior management about possible securities law violations by the company. When Digital Realty fired Somers, he filed suit in the U.S. district court for California, alleging that Digital Realty fired him for his reports of securities law violations in violation of the anti-retaliation protections created by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Dodd-Frank was passed in 2010 in the wake of the 2008 financial crisis and expanded the whistleblower incentives and protections under the 2002 Sarbanese-Oxley Act. (Here is a side-by-side comparison of these two whistleblowing acts, including both the definitions they use and the protections they provide.) Although the district court held Somers to be a “whistleblower” under the statute, and the Ninth Circuit affirmed the district court’s decision on behalf of Somers, Digital Realty appealed to the Supreme Court on the grounds that Somers was not a “whistleblower” as defined by Dodd-Frank because Somers did not report his concerns to the Securities and Exchange Commission (SEC) before he was terminated.

Owen H. Laird, Esq.

The U.S. Supreme Court recently agreed to hear two cases that will have major ramifications for workers across the country. One case threatens one of organized labor’s most important rights, and the other impacts employees of car dealerships nationwide.

The Court agreed to hear arguments on Janus v. American Federation of State, County and Municipal Employees, which concerns a union’s right to take dues from non-members who are in the same bargaining unit as members the union represents. This issue of union dues has been long, and corporate interests have been successful in gradually rolling back organized labor’s ability to raise funds.

Owen H. Laird

On Monday, millions of people across the United States enjoyed their Labor Day by doing what people do on Labor Day: getting one last day in at the beach, holding a cookout, spending time with family and friends, catching a baseball game, or any of the other quintessentially American activities that spring to mind when you think of Labor Day.

Labor Day, however, is not “celebrated” in the way most other holidays are.  That is, people do not, generally, take time on Labor Day to consider or observe the meaning of the holiday.  Labor Day is typically viewed as simply a day off marking the end of summer, rather than bearing any special significance about workers’ rights.  With organized labor fading, economic inequality growing, and workers’ rights being curtailed, it is important to remember the origin and significance of Labor Day, and to continue the fight that led to its creation.

Lev Craig

The U.S. Court of Appeals for the Second Circuit recently affirmed the determination of the National Labor Relations Board (NLRB) in NLRB v. Pier Sixty, LLC, a case involving the boundaries of union-related activity protected under the National Labor Relations Act (NLRA). In its April 21, 2017 decision, the Second Circuit held that Pier Sixty, LLC, had violated the NLRA when it terminated an employee over his union-related Facebook post, even though the post used obscenities and disparaged the employee’s supervisor.

The NLRB is a federal agency tasked with the “prevention of statutorily defined unfair labor practices on the part of employers and labor organizations” and is authorized to investigate, prosecute, and adjudicate claims of unfair labor practices. The agency was created by the NLRA, a federal labor law passed in 1935 which protects the rights of employees to organize, engage in collective bargaining, and participate in other union-related activities. The NLRA prohibits an employer from terminating an employee based on “protected concerted activity,” a term referring to employees working together to improve the terms and conditions of their employment—for example, attempting to form a union, discussing pay and safety concerns with other workers, and making complaints about workplace conditions. However, there are exceptions if an employee’s behavior is found to be so “opprobrious” that it no longer falls within the NLRA’s protections. Though the NLRA generally protects union-related activity, “even an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.”

By Owen H. Laird, Esq.

Today, May 1, 2017, millions of people around the world will gather to celebrate International Workers Day, also referred to as “May Day.” In many countries across the world, “Labor Day” is celebrated on May 1.  The significance of this holiday grew in the late 19th century, as a celebration of the ascendance of unions, the rights won for workers, and the ongoing fight for justice in the workplace.

While International Workers Day has a long, storied history in the rest of the world, May Day has lost most of its significance for Americans. While most of the rest of the world has an official public holiday on or about May 1, here in the U.S., the official “Labor Day” is observed in September. In the United States, even September’s Labor Day is typically viewed as a holiday marking the end of summer, rather than bearing any special significance about workers’ rights.  There are generally few public ceremonies for May Day in the United States, in large part because of May Day’s socialist roots; the holiday was first declared by the Second International, an influential coalition of labor and socialist organizations dating back to the late 19th and early 20th centuries.

Owen H. Laird, Esq.

For New Yorkers, both the Fair Labor Standards Act (FLSA) and New York Labor Law provide employees with rights to a minimum wage and, in many cases, overtime pay. However, many workers in New York still do not receive the pay to which they are entitled; for instance, employers may under-report employees’ hours, improperly withhold wages or tips, or simply pay a wage lower than the State minimum.

However, many employees choose to let these violations go because they are “minimal.” An employer might underpay an employee for by a half hour for each pay period, a loss that might only amount to a few dollars a month. The employee could hesitate to pursue those lost wages, afraid of upsetting things at work or doubtful that they can find a lawyer to pursue a smaller case. Despite these potential concerns, employees who believe they are being illegally underpaid should not be afraid.

Yarelyn Mena and Edgar M. Rivera, Esq.

For a claimant to qualify for unemployment insurance benefits, the claimant, among other things, must have lost their job through no fault of their own. This generally means if the claimant was terminated, it must not have been for misconduct. Usually, whether the reason for termination rises to misconduct is simple: stealing, harassment, or fighting is misconduct while forgetfulness, occasional lateness, or being unable to do the job is not. The following two cases are examples of uncertainty; uncertainty in whether the behavior amounts to misconduct and uncertainty as to what actually happened.

In the first case, claimant Shawn Roy appealed his disqualification from receiving unemployment insurance benefits on the grounds that there was no misconduct. The Appellate Division found substantial evidence that supported the Unemployment Insurance Board’s determination that Mr. Roy was discharged as a food service worker due to disqualifying conduct, specifically, he created “violent and sexually explicit videos using LEGO characters, including characters depicting the executive director of the nursing home, claimant’s department head and two female coworkers, and posted the videos online.” The Board was convinced that Mr. Roy was obligated “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him… ” As such, the Board decided that the videos constituted misconduct and, as a result, he was disqualified for collecting unemployment insurance benefits. This case is a lesson in that at least in some circumstances, legal conduct outside of work can constitute misconduct.

Yarelyn Mena and Edgar M. Rivera, Esq.

In a 2014 case, Martin v. The United States, the United States Court of Federal Claims held that an employer’s late payment of wages violates the Fair Labor Standards Act (“FLSA”) and may trigger liquidated ”double payment” damages. The case arose out of the 2013 government shutdown (October 1, 2013 to October 16, 2013) which resulted in the untimely payment of wages to government workers.

Towards the end of 2013, Congress failed to issue funds for government workers, forcing the federal government into a partial shutdown. The shutdown took place in the first two weeks of October 2013, in the middle of a pay period, which resulted in plaintiffs unpaid government employees being paid only for work from September 22 to September 30, and not the first five days in October. Two weeks after their scheduled payday the plaintiffs received pay for those five days. They argued that the federal government’s failure to pay them for hours worked resulted in (i) underpayment that constituted a minimum wage violation, (ii) failure to pay non-exempt employees for overtime hours worked, and (iii) failure to pay even exempt employees for overtime hours worked.