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.

 

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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. 


Court Certifies California Uber Driver Independent Contractor Misclassification Class Action

In a sixty-eight page opinion.

Center for Constitutional Rights Update From an Ella Profile: Cyrus Dugger

I am honored to have been profiled in the Center for Constitutional Rights summer newsletter:

Thank you CCR for the opportunity to have been an Ella Baker Fellow and for all of the important civil rights and human rights work that you do everyday.

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.

CVS Store Detectives File Race Discrimination Class Action Alleging Forced Racial Profiling of Black and Latino Shoppers

As reported in the NY Times:

"Four former store detectives employed by CVS in New York filed a class-action lawsuit against the drugstore chain on Wednesday, accusing their bosses of ordering them to target black and Hispanic shoppers.
The lawsuit, filed in Federal District Court in Manhattan, also alleged that the detectives were fired after they complained about racial discrimination, against both customers and themselves.
The plaintiffs, all of whom are either black or Hispanic, contend in their suit that two supervisors in CVS’s loss-prevention department, overseeing stores in Manhattan and Queens, regularly told them to racially profile nonwhite shoppers. The suit says that one of the supervisors, Anthony Salvatore, routinely told subordinates that “black people always are the ones that are the thieves,” and that “lots of Hispanic people steal.” The second supervisor, Abdul Selene, frequently advised detectives, known at CVS as market investigators, to “watch the black and Hispanic people to catch more cases,” the suit said." (keep reading)

Supreme Court Rules Against Abercrombie & Fitch on Religious Discrimination Appeal

It has become a stirring and rare event for the Supreme Court to hand down a decision protecting or strengthening employee rights, but low and behold, it has occurred once more - with a decision from Justice Scalia:

"To prevail in a disparate-treatment claim, an applicant needshow only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledgeof his need. Title VII’s disparate-treatment provision requires Elaufto show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing aknowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment toreligious practices, rather than demanding that religious practices betreated no worse than other practices." (continue reading)
 

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)

Can I Really Sue My Boss Individually in NYC – And What Does That Really Mean?

One important limitation of Title VII, the federal law that protects most employees at most larger companies from discrimination, is that the law only allows employees to hold the company liable.  

So, if an employee brings a claim because of a manager’s harassment under Title VII, only the company will ever have to directly pay an award of damages to the injured employee.  While the court may impose injunctive requirements on the company that affect the individual harasser, these injunctive requirements nonetheless still fall squarely on only the employer’s shoulders.  

For example, if the offending harasser leaves the organization, they will likely no longer be subject to any court-ordered injunctive requirements.

Of course, there may be internal consequences for the harassing supervisor, but any action taken against the harasser will be at the discretion of the company, not necessarily mandated by law.  While companies are usually not thrilled with supervisors who harass employees and cause them to file discrimination lawsuits, inevitably there are exceptions, where even successful lawsuits do not result in an employer fundamentally addressing issues of discrimination.

Given these limitations, technically a sexual harasser could harass many employees, resign when a lawsuit is filed, and leave without directly paying their victim(s) a single cent.

What’s an aggrieved employee to do?

Fortunately, in New York City and New York State, there are protections beyond those provided under Title VII by way of the New York City Human Rights Law  ("NYC Human Rights Law") and the New York State Human Rights Law.  

This post focuses on the unique aspects of the NYC Human Rights Law, one of the most protective anti-discrimination and retaliation statues in the country.

Under the NYC Human Rights Law, employees who meet the definition of a “supervisor” are personally liable for any discrimination they engage in.

You heard correctly.  Your supervisor may be personally liable, out of their own funds, for discrimination, along with a NYC employer.

Many NYC supervisors and other employees are likely surprised to hear this.  Indeed, it is likely that the vast majority of supervisors and other employees are unaware that this is the case in NYC.

This provision should certainly give all current and potential “supervisors” great pause with respect to their conduct in the office.   If their actions result in a lawsuit alleging discrimination or retaliation an employee, perhaps one who has no issue with the larger company -- only the specific supervisor -- could technically decide to only sue the supervisor in their personal capacity.  

While an employee is unlikely to take that route where he or she is not certain the supervisor (as opposed to the employer) could actually satisfy any judgment given their financial resources, this fact is something NYC supervisors are well-advised to keep in mind during their interactions in the workplace.

The protections of the NYC Human Rights Law not only include potential relief against individual supervisors, but, importantly, the standard for discrimination violations is also far more liberal than Title VII, making it much more likely that an employer and/or supervisor will be found liable for discrimination with respect to identical conduct.   

By way of example, in NYC, a supervisor can potentially find themselves liable for an employee’s emotional distress damages, as well as attorney’s fees and costs, by making a single harassing discriminatory statement to an employee.  

Each side may then certainly litigate the appropriate amount of emotional distress damages, but, in any event, the employee will, in many  circumstances, have an argument that the employer and/or supervisor are personally liable to them for emotional distress damages.

New York City is not only a unique place to live, it has a uniquely protective regime of anti-discrimination and anti-retaliation laws  that put employees on, at least, less unequal footing with supervisors when addressing discrimination and retaliation in the workplace.

A cautionary note, however, is that while the NYC Human Rights Law is expansive, it is not limitless.  Every workplace slight is not necessarily discrimination or retaliation, and you should consult with an attorney before assuming you have a potential claim against an employer and/or supervisor merely because you have been treated poorly or unfairly in the workplace.

The NYC Human Rights Law also does not apply to employers with less than five employees.


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.