Pregnant New York Workers Have Greater Potential Accommodation Rights Than Under Federal Law

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The recent NY Times article titled "Miscarrying at Work: The Physical Toll of Pregnancy Discrimination" is an important overview of the challenges faced by many pregnant American workers under current federal law.

“It was the worst thing I have ever experienced in my life,” Ms. Hayes said.

Three other women in the warehouse also had miscarriages in 2014, when it was owned by a contractor called New Breed Logistics. Later that year, a larger company, XPO Logistics, bought New Breed and the warehouse. The problems continued. Another woman miscarried there this summer. Then, in August, Ceeadria Walker did, too.

The women had all asked for light duty. Three said they brought in doctors’ notes recommending less taxing workloads and shorter shifts. They said supervisors disregarded the letters. . . . But refusing to accommodate pregnant women is often completely legal. Under federal law, companies don’t necessarily have to adjust pregnant women’s jobs, even when lighter work is available and their doctors send letters urging a reprieve. . . . It says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.” (link)

Fortunately, pregnant women working in New York State and New York City (and several other states) have broader protections than under federal law.

“Outside Washington, there have been fewer roadblocks. At least 23 states have passed laws that are stronger than current federal protections.” (link)

For employers with at least four employees, New York and New York City law explicitly requires employers to reasonably accommodate pregnant workers. This right means that, unless the accommodation would imposes what the laws describes as “an undue hardship” on the employer, the employer is legally required to provide an accommodation to a pregnant worker (physically working in New York). Under some circumstances, pregnant workers working for employers in NYC are covered by this law even if the company classifies its workers as independent contractors.

You can find guidance on the New York State pregnancy discrimination law here and the New York City pregnancy discrimination law here.

Because the potential right to a pregnancy accommodation can be a complicated legal question involving a back-and-fourth “interactive process” with the employer, pregnant workers are well-advised to seek legal guidance as soon as possible after becoming pregnant.

Washington Post: "Even Janitors Have Noncompetes Now. Nobody Is Safe."

Even janitors have noncompetes agreements now . . .

“One of the central contradictions of capitalism is that what makes it work — competition — is also what capitalists want to get rid of the most.

That’s true not only of competition between companies, but also between them and their workers. After all, the more of a threat its rivals are, and the more options its employees have, the less profitable a business will tend to be. Which, as the Financial Times reports, probably goes a long way toward explaining why a $3.4 billion behemoth like Cushman & Wakefield would bother to sue one of its former janitors, accusing her of breaking her noncompete agreement by taking a job in the same building she had been cleaning for the global real estate company but doing it for a different firm.” (Continue Reading)

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New York Attorney General Releases: Non-Compete Agreements In New York State: Frequently Asked Questions

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New York employers have been increasingly using non-compete agreements in employment contracts. In addition to bringing litigation against employers to address the use and abuse of overly broad non-compete agreements, the New York Attorney General recently released: Non-Compete Agreements In New York State: Frequently Asked Questions.

Beyond providing a helpful overview of the legal limits on non-compete agreements under New York law, the FAQ advises New York employees to take several steps and ask several questions before signing any non-compete agreement:

Before signing a non-compete 

1. Before accepting a new job, ask the employer if you will have to sign a non-compete. 

2. Before signing, make sure you read and understand any document that an employer asks you to sign. 

3. Remember that a non-compete is a contract and that you can try to negotiate its terms. 

Consider these questions before signing: 

What businesses are considered competitors? A non-compete may not be enforceable if the definition of a competitor is too broad or prevents you from working in an entire sector or industry. 

How long does the non-compete period last? Non-competes should be limited in time. 

What geographic area does it cover? Is the geographic scope so large that you might have to move to get a job with another employer in the industry? 

Are you getting anything in exchange for signing the non-compete? For example, some employers provide a bonus or specialized training, guarantee employment for a certain time, or provide payment for some or all of the non-compete period in exchange for signing a non-compete. 

Can you have a lawyer review the language and advise you on its potential consequences or negotiate with the employer on your behalf? 

Whether you’re considering signing a non-compete or already signed one, New York law may limit the enforceability of your non-compete agreement. Obtaining legal advice regarding your specific non-compete can be essential to protecting your rights following your departure from an employer.

The Dugger Law Firm, PLLC and Shulman Kessler LLP File Overtime and Recordkeeping Class and Collective Action On Behalf of Premier Home Health Care Services, Inc.’s New York In-House Staff

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On November 20, 2017, Plaintiffs Margarita Gonzalez, Yudelky Contreras, Carmen Alvarez, and Pura Germosen filed a class and collective action complaint in New York federal court against Premier Home Health Care Services, Inc. (a/k/a Premier Home Health Care, Inc.).  The complaint alleges overtime violations of the Fair Labor Standards Act and New York Labor Law, as well as recordkeeping violations regarding required wage rate notices and wage statements under the NYLL.

Plaintiffs seek payment of unpaid overtime wages and associated liquidated damages, statutory damages for the wage rate notice and wage statement violations, and injunctive and declaratory relief.   

Plaintiffs also seek: (1) conditional certification of a FLSA collective consisting of in-house Premier staff employed at any time since November 20, 2014; and (2) Rule 23 class certification of a class of in-house Premier staff employed at any time since November 20, 2011.

The case is Gonzalez v. Premier Home Health Care Services, Inc., No. 17 Civ. 9063, in the United States District Court for the Southern District of New York. 

For more information contact Cyrus E. Dugger at cd@theduggerlawfirm.com or (646) 560-3208.

Court Grants Plaintiff Eva Agerbrink’s Motion for Partial Summary Judgment Against MSA Models

As background, on September 26, 2014, Eva Agerbrink filed a class and collective action complaint in New York federal court against modeling agency MSA Models and MSA Models owner Susan Levine.  The complaint alleged that MSA and Levine misclassified their “fit models” as independent contractors in violation of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).

Subsequently, on January 7, 2016, Magistrate Judge Francis granted Plaintiff Eva Agerbrink’s motion to amend her class and collective action complaint.  The amended complaint: (1) added a class claim of unjust enrichment arising from MSA’s purported liquidated damages provision in its modeling contract; (2) expanded the scope of the putative class action from only MSA fit models to include all types of MSA models with respect to the class claim for unjust enrichment; and (3) added MSA Models Chief Operating Officer Bill Ivers as an individual defendant.

On February 5, 2016, shortly after Magistrate Judge Francis conditionally certified a FLSA collective of exclusively signed MSA fit models, Ms. Agerbrink filed a motion for partial summary judgment as to liability on her individual claim for unjust enrichment.  Yesterday, on July 21, 2016, U.S. District Judge Oetken granted that motion.

In ruling for Ms. Agerbrink, the Court first rejected MSA's argument that Ms. Agerbrink’s unjust enrichment claim was precluded by the existence of a contract, because it was “the contract [that] imposed the allegedly unlawful penalty in the first place.”

The Court then concluded that MSA’s modeling contract contained an illegal penalty provision for several reasons.

The Court first concluded that the penalty provision was unenforceable because:

“The Clause purports to allow Defendants to retain any of Agerbrink’s earnings that it happens to have on hand, plus whatever additional such funds might come in after the breach.  This is the essence of a penalty designed ‘not to make a fair estimate of damages to be suffered but to serve only as an added spur to performance’ and is therefore unenforceable.”

The Court next concluded that the penalty clause was also unenforceable because:

“It purports to give Defendants the option either to ‘retain as liquidated damages all funds then held and/or subsequently received by MSA on [Agerbrink]’s behalf’ or, alternatively, to hold those funds as ‘security’ toward an anticipated judgment against Agerbrink, while Defendants pursue other remedies against her.”

In addition, the Court rejected MSA’s argument that its characterization of the penalty provision as a “security” somehow rendered the agreement enforceable:

“Ultimately, it makes little difference whether the withholding is styled as a security deposit or a liquidated damages provision courts look to the substance of such a provision in interpreting it.”

The Court concluded:

“Because the [provision] is unenforceable, Defendants may not continue to ‘invoke[] the liquidated damages provision’ as justification for withholding Agerbrink’s earnings. It follows that Agerbrink has satisfied the third and final requirement for a claim of unjust enrichment, as Defendants continue to hold funds to which she is entitled.  Accordingly, Agerbrink is entitled to summary judgment as to liability on this claim.”

The Court left for another day the measure of damages for Ms. Agerbrink's unjust enrichment claim.  The motion and decision also did not address Plaintiff’s collective and putative class action wage and hour claims.

A copy of the opinion is available here.  

The Court had previously: (1) denied the majority of Defendants’ 2015 motion to dismiss (available here); and (2) granted Plaintiff’s 2015 motion for Defendants to issue a corrective notice (available here).

The case is Agerbrink v. Model Service LLC d/b/a MSA Models, No. 14 Civ. 7841 (JPO) JCF) in the United States District Court for the Southern District of New York.

The litigation is currently stayed for mediation.

Installment #2: CNN Investigative Series Runway Injustice: The outrageous cost of being a model

Available here:

"Modeling is a time-consuming, demanding and cutthroat profession. But most of all, it can be prohibitively expensive.
Unlike most U.S. workers, models regularly see huge chunks of their earnings -- whether it's a third, more than half, or even entire paychecks -- disappear right before their eyes.
One male model, for example, showed CNNMoney a statement where a $500 catalog shoot turned into a $15 check. Meanwhile a young female model saw almost six years of earnings shrink from $74,000 to less than $30,000.
Models typically aren't treated as employees, so they usually aren'tguaranteed to receive minimum wage, overtime, lunch breaks, prompt paychecks or many other protections that are common in the workplace.
Instead, they are often considered independent contractors. And this means that even after paying their agencies fat commissions of 20% or more, models often have to foot the bill for business expenses. These include everything from expensive plane tickets and group housing to the many promotional materials -- like websites, headshots and portfolios -- required to land jobs with clients." (link)
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The Consumer Financial Protection Bureau Just Made Your Life Better

So many times better:

"The nation’s consumer watchdog is unveiling a proposed rule on Thursday that would restore customers’ rights to bring class-action lawsuits against financial firms, giving Americans major new protections and delivering a serious blow to Wall Street that could cost the industry billions of dollars." (link)

In the words of Richard Cordray, director of the Consumer Financial Protection Bureau:

“Many banks and financial companies avoid accountability by putting arbitration clauses in their contracts that block groups of their customers from suing them.” (link)

As noted in a previous post covering The Nation's article How Consumers Are Getting Screwed by Court-Enforced Arbitration -- yes -- unfortunately -- this applies to you.

CNN: Runway Injustice: How the Modeling Industry Exploits Young and Vulnerable Workers

That's the title of today's CNN article covering the NYC modeling industry:

From an analysis of pay stubs and financial statements, interviews with dozens of current and former models, attorneys, labor experts and even a former agency executive, a CNNMoney investigation has found that the fashion world often treats its models in ways that would be unheard of in many other industries. (link)

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In many cases, models say it's the agency (or management company, as some call themselves) that takes advantage of them. While they say the designers and brands they pose for can also be part of the problem, models interviewed by CNNMoney were more concerned about agency practices and didn't single out clients. (link)

While the article addresses multiple industry practices, it notes that the core of the problems stem from agencies' classification of models as independent contractors –- a classification currently being challenged as illegal by The Dugger Law Firm, PLLC in a lawsuit on behalf of Plaintiff Eva Agerbrink and additional fit models against modeling agency MSA Models:

The industry's labor issues often stem from the fact that even though models say agencies control much of their lives (down to their eating habits and the pay they receive), they typically aren't considered employees.
Clients don't typically claim them as employees either. Instead, models are left as contract workers in an industry with little oversight -- making it very difficult for them to challenge everything from wage theft to sexual harassment (link)

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That's because agencies don't classify models as employees, and as a result they avoid minimum wage laws (though several lawsuits are currently challenging this classification). And the countless hours spent at castings, test shoots and go-sees (meetings with agents or designers) usually result in no compensation at all. (link)

In September 2014, The Dugger Law Firm, PLLC filed what appears to be the first of these lawsuits challenging a NYC modeling agency’s classification of its models as independent contractors.  

Thank you to CNN for shining light on this industry.

Court Grants Plaintiff’s Motion to Compel in Race Discrimination Case Against 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. and Joshua Berkowitz

On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC(d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz.   

The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker.  The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers.   

On March 2, 2016, the Honorable Eileen A. Rakower ordered Defendants to produce all of the hard copy and electronic documents sought in Plaintiff’s motion to compel, with the exception of documents related to Gold Bar or Defendants’ assets.

The Court further ordered Defendants to provide an affidavit from someone with knowledge of the search conducted concerning requests for which Defendants claim documents do not exist, or are not in Defendants', possession, custody, or control.

The Court’s Order is available here.

The case is Douglas v. 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. et al., Index No. 162179

Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and James Halter and Asa Smith of Liddle & Robinson L.L.P.