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

Money Drop;.jpeg

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)
165959324.jpg

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)

***

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)

***

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 Conditional Certification in Fit Model FLSA Collective Action Against MSA Models, Owner Susan Levine, and COO William Ivers

On September 26, 2014, The Dugger Law Firm, PLLC, on behalf of Plaintiff Eva Agerbrink, and similarly situated fit models, filed a class and collective action complaint in New York federal court against modeling agency MSA Models and MSA Models owner Susan Levine.

“Fit models” serve as human mannequins for the apparel industry during the clothing design process.

On February 2, 2016, the Honorable James C. Francis granted Plaintiff’s motion for conditional certification and court-authorized notice for a collective of all “exclusive” (i.e. exclusively signed) MSA fit models who signed with MSA Models between September 15, 2012 and the present.  Specifically, the Court authorized: (1) a sixty-day opt-in period; (2) the transmission of notice to potential members of the collective via U.S. mail and email; (3) a reminder notice to be sent twenty-one days prior to the close of the opt-in period; and (4) the filing of consent forms by Plaintiff’s counsel. 

The Court further ordered MSA Models to produce a computer readable list for all “exclusive” MSA fit models signed with MSA since September 15, 2012, containing their: (1) full names, (2) last known addresses, (3) phone numbers, (4) e-mail addresses, and (5) dates of employment and of their exclusive fit modeling contract term, including renewal periods, to permit Plaintiff’s counsel to disseminate notice of the lawsuit to potential members of the collective.

A copy of the decision is available here.

Previously, on January 7, 2016, Judge Francis granted Plaintiff’s motion to add all types of MSA models (i.e. fashion, lifestyle, showroom) to the putative class, with respect to a new class claim of unjust enrichment arising from MSA’s alleged retention of its models’ earnings based on a contractual liquidated damages provision in MSA’s modeling contracts.  In the same decision, the Court granted Plaintiff’s request to add MSA Model’s Chief Operating Officer, William Ivers, as an individual Defendant.

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

 

165959324[1].jpg

Court Grants Motion Expanding MSA Models Independent Contractor Misclassification Class Action to Include Unjust Enrichment Claim for All MSA Models and MSA COO Bill Ivers as an Individual Defendant

On September 26, 2014, The Dugger Law Firm, PLLC, on behalf of 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. 

On January 7, 2016, Judge Francis granted Plaintiff Eva Agerbrink’s motion to amend her class and collective action complaint to: (1) add MSA Models Chief Operating Officer Bill Ivers as an individual defendant; (2) add a class claim of unjust enrichment concerning MSA’s liquidated damages provision in its modeling contract between the company and its models; and (3) expand the scope of the putative class action from only MSA fit models to include all types of MSA models (i.e. fashion, lifestyle, showroom) with respect to the class claim for unjust enrichment.

As a result, the putative class in this litigation has been expanded from Fair Labor Standards Act and New York Labor Law wage and hour misclassification claims for all MSA fit models (from September 2008 to the present), to include all types of MSA models (i.e. fit, fashion, showroom, and/or lifestyle) concerning class claims for unjust enrichment related to MSA’s allegedly unenforceable contractual liquidated damages provision (from January 2000 to the present).

Specifically, with respect to the claim for unjust enrichment, the Court held:

“The crux of this claim -- that the defendants have been unjustly enriched by retaining payments from clients and owed to the plaintiff for work performed -- is that the defendants are not entitled to these monies because the MSA Contract’s liquidated damages provision is unenforceable. The Second Amended Complaint contains a number of assertions that plausibly suggest that the liquidated damage provision is an illegal penalty and therefore invalid, namely, that it is not ‘a reasonable measure of anticipated loss’ but rather is ‘a means by which Defendants . . . intimidate MSA models into compelled continued performance.’"

Accordingly, Plaintiff’s amended complaint alleges that, because this provision is unenforceable under New York law, all monies withheld by MSA under this provision from any MSA fit, fashion, lifestyle, and/or showroom model, since January 2010, must be paid back to these models.

A copy of the Court’s decision is available here.

Previously, on June 16, 2015, Judge Oetken denied the Defendants’ motion to dismiss with respect to Plaintiff’s wage and hour FLSA and New York Labor Law claims.  In addition, on October 27, 2015, Judge Francis ordered Defendants to provide a corrective notice to members of the putative class following his review of an email that MSA Chief Operating Officer William Ivers sent to members of the putative class regarding the litigation.

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


MSA Fit Model Independent Contractor Misclassification Class Action Filed by The Dugger Law Firm, PLLC Moves Forward

On September 26, 2014, The Dugger Law Firm, PLLC, on behalf of 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 amended complaint alleges that MSA Models and Susan Levine have misclassified their “fit models” as independent contractors in violation of the Fair Labor Standards Act and the New York Labor Law. 

Ms. Agerbrink, individually and on behalf of all similarly situated MSA fit models, seeks payment of minimum wages, payment of unpaid earned wages, liquidated damages with respect to minimum wages that were eventually paid but were not paid promptly, damages for violations of New York Labor Law recordkeeping requirements, and reimbursements for illegal deductions, as well as additional associated liquidated damages. 

Ms. Agerbrink also sought declaratory relief, under the Declaratory Judgment Act, that MSA Models is operating as an unlicensed employment agency in violation of New York General Business Law § 172, and therefore, could not prospectively enforce its modeling employment agreement with respect to all, or a portion of, the 20% commission it deducts from fit models’ wages. 

MSA Models filed a motion to dismiss the amended complaint on January 2, 2015.

On June 16, 2015, Judge Oetken issued an order denying the majority of Defendants’ motion.  Judge Oetken held that all of Ms. Agerbrink’s class and collective action wage and hour claims would move forward to discovery. 

Judge Oetken determined, however, that Ms. Agerbrink could not pursue a Declaratory Judgment Act claim regarding the prospective unenforceability of MSA Model’s contractual commission of 20%.   

As a result, Ms. Agerbrink’s class action wage and hour claims will move forward to discovery on behalf of all MSA fit models employed by MSA Models at any time from September 26, 2008 through the conclusion of the litigation.

The case is Agerbrink v. Model Service LLC d/b/a MSA Models, No. 14 Civ. 7841, 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.

Los Angeles Raises Minimum Wage to $15 an Hour

As covered in the New York Times:

"The nation’s second-largest city voted on Tuesday to increase its minimum wage to $15 an hour by 2020, in what is perhaps the most significant victory so far in the national push to raise the minimum wage.
The increase — which the Los Angeles City Council passed in a 14-1 vote — comes as workers across the country are rallying for higher wages, and several large companies, including Facebook and Walmart, have moved to raise their lowest wages. Several other cities, including San Francisco, Seattle and Oakland, Calif., have already approved increases, and dozens more are considering doing the same. In 2014, a number of Republican-leaning states like Alaska and South Dakota also raised their state-level minimum wage by referendum."  (keep reading)

New York Post Covers Lawsuit Filed by The Dugger Law Firm, PLLC on Behalf of "The Face" Winner Devyn Abdullah Against Her Former Agency Direct Model Management, Inc.

The New York Post article, "Model Who Won Reality Contests Sues Over 'Withheld Payments,'" by Kathianne Boniello, is available here.