Wage-and-Hour Litigation

libertyapparel Zheng v. Liberty Apparel Co. , 556 F. Supp. 2d 284 (S.D.N.Y. 2008)
After the Second Circuit Court of Appeals reinstated the plaintiffs’ claim, the District Court denied defendants’ summary judgment motion seeking dismissal of those claims without a trial. The Court held that garment worker plaintiffs had proffered sufficient evidence that the defendants exercised operational control over the plaintiffs such that they were entitled to a trial of their claims against the manufacturers. After a jury trial, plaintiffs prevailed against both the manufacturing company and the individual defendants, the Second Circuit substantially affirmed, and the Supreme Court denied the defendants’ petition for review. See Zheng v. Liberty Apparel Co., 617 F.3d 182 (2d Cir. 2010) and 389 Fed. App’x 63 (2d Cir. 2010), cert. denied, 131 S. Ct. 2879 (2011).

libertyapparelZheng v. Liberty Apparel Co., 355 F.2d 61 (2d Cir. 2003)
The Second Circuit Court of Appeals held that an entity can be a joint employer under the federal and New York minimum wage and overtime compensation laws even without formal control over hiring and firing, schedules, payment, and records. An “economic reality” determination required review of all of the circumstances including indications of functional control. The garment worker plaintiffs’ wage-and-hour claims were therefore reinstated.

libertyapparel Ayres v. 127 Rest. Corp. d/b/a Le Madri Rest. , 12 F. Supp. 2d 305 (S.D.N.Y. 1998)
The Court granted plaintiffs partial summary judgment finding that the defendant restaurant illegally withheld tips from waitstaff plaintiffs and that said retention was willful.  As such, the restaurant was not entitled to take a tip credit against the wages of the waitstaff, who were entitled to double damages.  The Court found that the general manager of the restaurant was an agent of the employer and had retained $20,000 in tips belonging to the waitstaff.

Litigation on Behalf of Unions

NLRB Enforcement in Federal Courts of Appeals

libertyapparelNLRB v. Regency Grande Nursing and Rehab. Ctr.,
265 F. App’x 74 (3d Cir. 2008), enforcing 347 N.L.R.B. 1143 (2006);
Regency Grande Nursing and Rehab. Ctr. v. NLRB,
2011 WL 3488995 (3d Cir. Aug. 10, 2011), enforcing 355 N.L.R.B. No. 99 (2010); and
NLRB v. Regency Grande Nursing and Rehab. Ctr.,
2012 WL 463999 (3d Cir. Feb. 14, 2012), enforcing 356 N.L.R.B. No. 146 (2011)

In these cases, the Third Circuit Court of Appeals enforced the NLRB’s orders (1) sustaining charges brought by 1199 SEIU that the employer unlawfully recognized a company union that lacked majority support, rejecting the employer’s defense that the charge, filed more than six months after the recognition, was time-barred because the recognition was fraudulently concealed; (2) requiring the employer to reimburse employees for the “union” dues deducted from their paychecks pursuant to the unlawful bargaining agreement with the company union; and (3) finding that the employer had unlawfully packed the bargaining unit just prior to a representation election by fraudulently hiring 40 illegitimate “employees” to thwart an 1199 SEIU victory, voiding the ballots of the phony workers, and hence certifying 1199 SEIU as the exclusive collective bargaining representative.

libertyapparelWayneview Care Ctr. v. NLRB, 664 F.3d 341 (D.C. Cir. 2011),
enforcing Wayneview Care Ctr. and Victoria Health Care Ctr., 356 N.L.R.B. No. 130 (2010)

The Board found that the employers unlawfully locked out employees without a legitimate business justification and in an effort to coerce the Union into accepting unilaterally implemented terms and conditions of employment.

libertyapparelVerizon N.Y. Inc. v. NLRB, 360 F.3d 206 (D.C. Cir. 2004),
enforcing In re Verizon N.Y., Inc., 339 N.L.R.B. No. 6 (2003)
The D.C. Circuit Court of Appeals enforced the NLRB’s order finding that the employer’s practice of permitting employees to participate in blood drives on work time for up to four hours twice a year was a term and condition of employment that could not be unilaterally eliminated.  The Court rejected the employer’s defenses that its decision to no longer provide this support for a charity was a core entrepreneurial concern that did not vitally affect employee terms and conditions of employment and that the Union waived its right to bargain over the change by failing to timely demand bargaining.

libertyapparelNLRB v. NJ Bell Tel., 936 F.2d 144 (3d Cir. 1991),
enforcing 300 N.L.R.B. No. 6 (1990)
The Third Circuit Court of Appeals enforced the NLRB’s order that the Weingarten right to union representation was triggered by employee inquiry whether she should have a union representative at a meeting.  The Court also found that the Union was entitled to receive a summary of witness statements and an investigative report by security because the employer had relied on this information in its determination to discipline an employee.

At the National Labor Relations Board 

libertyapparelWoodcrest Healthcare Center, 360 N.L.R.B. No. 58 (2014)
The National Labor Relations Board held that the employer committed numerous unfair labor practices before and after the representation election by withholding improvements in health insurance benefits from bargaining unit employees, interrogating employees, and creating the impression of surveillance. 

libertyapparelSomerset Valley Rehab & Nursing Center, 357 N.L.R.B. No. 71 (2011)
The National Labor Relations Board rejected the employer’s efforts to set aside the election based on the union’s distribution of a flyer that read “We’re Voting Yes” alongside photographs of employees who had not specifically said the quoted words.  According to the NLRB, because the union had sufficient evidence of the photographed employees’ union support, the flyers did not mislead voters or otherwise constitute objectionable conduct. 

libertyapparelBon Secours Charity Health Sys., 2010 WL 2180802 (NLRB Div. of Judges 2010)
A National Labor Relations Board judge ruled that the employer’s anti-union campaign destroyed the conditions necessary for a free and fair union representation election, set aside the prior election results, and granted the union’s request for a new election.  The employer’s unlawful conduct included surveillance of employee union activity, threats to discharge employees and cut wages, threats of loss of flexibility in scheduling and shifts, and prohibiting employees from posting union literature on bulletin boards.

libertyapparelRegency Heritage Nursing and Rehab. Ctr., 353 N.L.R.B. No. 103 (2009),
enforced, NLRB v. Regency Heritage Nursing and Rehab. Ctr., 437 F. App’x 65 (3d Cir. 2011)

The National Labor Relations Board ordered the employer to recognize, deal with, and provide access to a union organizer that it had banned from its facility for allegedly holding up an offensive sign during a contract campaign.

libertyapparel Sprain Brook Manor Nursing Home, 351 N.L.R.B. 1190 (2007)
The National Labor Relations Board ordered reinstatement with backpay for two workers fired in retaliation for organizing a union, and the restoration of overtime hours and back pay for three other union supporters whose hours were reduced after the union won a representation election. The Board also found that the Employer unlawfully photographed and placed under surveillance employees engaged in picketing, and that it further violated the law by calling the police and hiring an armed security guard in response to employees’ union activities.

libertyapparel New Surfside Nursing Home and Local 144, SEIU, 330 N.L.R.B. 1146 (2000)
The Board ordered the employer to grant the Union access to its facility for reasonable periods and at reasonable times, sufficient to allow the Union’s representative to observe how work is performed in preparation for collective bargaining.

At the NYS Public Employment Relations Board

libertyapparel Amalgamated Transit Union, Locals 1056 and 726 and N.Y. City Transit Auth.,
TIA 2011-009 and 2011-010 (May 12, 2012) (Panel Chairman: Nicolau)

In this interest arbitration, the Panel rejected NYCT’s claim that it did not have the ability to pay and therefore should not be bound by the pattern set by TWU Local 100. For the period from January 15, 2009 to January 14, 2012, the Panel awarded two 2% raises in each of the first two years and a 3% raise in the third year of the contract, as well as a reduction in health insurance contributions. The Panel found that the reserve fund, savings in debt service, money set aside for contributions to the GASB fund, and the balance already in the GASB was more than ample to fund this contract even if this pattern was applied to the other MTA unions. The Panel also noted that money could be borrowed from the capital fund and that the MTA should try to renegotiate interest rate swaps with banks, which cost tax payers approximately $115 million dollars per year.

Civil Rights and Labor

libertyapparel Transport Workers Union, Local 100 v. N.Y. City Transit Auth.,
348 F. Supp. 2d 432 (S.D.N.Y. 2004)

The court enjoined the continued use of the Transit Authority’s sick leave policy, under which employees were required to disclose information on diagnosis, prognosis and treatment with respect to any sickness that occasioned an absence of three days or more. Plaintiffs argued that the disclosure requirements violated the prohibition on disability-related inquiries found in the Americans with Disabilities Act. Following trial, the court ruled that the Authority could not continue to apply its policy to all employees in non-safety sensitive positions, but only with respect to a small group of employees with a demonstrated record of sick leave abuse.

libertyapparelRodolico v. Unisys Corp., 199 F.R.D. 468 (E.D.N.Y. 2001)
The Court granted plaintiffs’ motion for Rule 23(b) class certification of state law claims for 126 engineers who were 40 or older when laid off by Unisys Corporation and found that the plaintiffs could maintain a collective action under the Age Discrimination in Employment Act on behalf of all employees who had “opted in” to the lawsuit.  After deposing all 126 plaintiffs, the defendant settled.

libertyapparel Chan v. City of N.Y., 1 F.3d 96 (2d Cir. 1993)
The Second Circuit Court of Appeals affirmed a District Court holding that laborer plaintiffs, who had sued to recover wages at federal prevailing wage rates, were entitled to enforce the prevailing wage law under Section 1983 (civil rights statute).  The Court also found that the private employer defendant could be said to be acting under color of state law as required by Section 1983 because it had a close nexus with the municipal defendants.  After the Supreme Court denied the defendants’ petition for review, the defendants settled.

libertyapparel Burka v. N.Y. City Transit Auth., 739 F. Supp. 814 (S.D.N.Y. 1990)
The firm’s client, a public bus operator, was suspended for 60 days after allegedly testing positive for marijuana.  After trial, a federal court held that the procedures used in the disciplinary proceeding leading to the adjudication that he had ingested marijuana and to his suspension violated constitutional due process.  Thereafter, the suspension was overturned and the firm’s client was awarded backpay.

libertyapparel Barrett v. Suffolk Transp. Servs., 37 FEP Cases 724 (E.D.N.Y. 1984) and
600 F. Supp. 81 (E.D.N.Y. 1984)

A private transportation company fired three school bus drivers with excellent driving records because they had become 65 years of age, pursuant to a N.Y. Dept. of Education regulation prohibiting employment of school bus drivers at that age. The defendants, including the State Education Commissioner, asserted on the basis of a prior federal lawsuit that age was a bona fide occupational qualification and that the regulation was valid. After defense motions to dismiss the complaint and for summary judgment were denied and discovery undertaken, the Commissioner conceded that the expert report used in the prior lawsuit was statistically invalid and that the regulation violated federal law prohibiting discrimination in employment on the basis of age. Pursuant to the settlement, the plaintiffs won reinstatement and damages, and the Commissioner agreed that the regulation would no longer be enforced.

libertyapparelBoe v. Colello , 438 F. Supp. 145 (S.D.N.Y. 1977)
A federal court struck down an Orangetown, New York ordinance requiring a license to sell a newspaper or periodical which police and town officials had used to arrest and prosecute distributors of a newspaper, holding that the ordinance infringed upon the First Amendment rights of free press and free speech of both the newspaper distributors and readers.  The Court also enjoined town officials from arresting and commencing prosecution of plaintiffs in the future for alleged violations of the condemned statute.

Other Notable Cases

prof1 Monaco et al v. New York University and New York University Medical School,
2016 NY Slip Op. 08467 (1st Dept. 12/15/16).

In this case, the Appellate Division made clear that faculty can enforce the terms of a university handbook in a plenary contract action. Prior to the Monaco decision many courts had held that faculty could only enforce their rights by means of an Article 78 proceeding. The remedies available in an Article 78 proceeding are substantially more limited than those available in a contract action and by requiring faculty to use this summary proceeding rather than a plenary contract action, the rights of tenured and tenure-track faculty have been effectively reduced to those of an employee at will. This decision has clarified the law in this area, recognizing that faculty rights contained in university handbooks, are enforceable contracts where the parties have evidenced a mutual intention to be bound by the terms of the handbook. This case also raises the important issue of the meaning of tenure as first defined by the Association of American University Professors in its so-called 1940 Statement of Tenure and Academic Freedom. That definition, which has been widely adopted by American Universities, makes clear that in order for faculty to have meaningful academic freedom they must have both job and economic security. We have argued that these guarantees prohibit the university from reducing faculty salaries based on their ability to obtain external funding to support their research. Although the lower court held that these terms could not give rise to a contractual right to irreducible salaries, the Appellate Division reversed, allowing plaintiffs to proceed with discovery on their contract claims.

libertyapparel 1199 SEIU United Healthcare Workers East v. Hamilton Park Healthcare Ctr., Ltd.
Civil Action No. 12-CV-7641 (D.N.J. Dec. 28, 2012)

The Court issued a preliminary injunction enjoining the nursing home owner from selling its business or transferring its assets pending resolution of the Union’s grievance in arbitration. The Union had filed for arbitration to enforce the collective bargaining agreement (“CBA”) provision requiring any successor employer to assume the CBA and retain all bargaining unit employees.

libertyapparel Mayor v. Council of N.Y., 91 N.Y.3d 23 (2007)
The Mayor of the City of New York challenged a law that significantly altered the bargaining rights of unions representing certain fire and emergency medical services employees. The law, passed by the City Council over the objection of the Mayor, expanded the scope of matters that could be bargained for these employees. The case turned on a variety of legal issues involving provisions of the Taylor Law (New York’s statute governing labor relations in the public sector), Home Rule provisions of the New York Constitution, and terms of the New York City Charter. The firm represented the unions whose bargaining rights were at stake in successfully fending off the Mayor’s challenge.

libertyapparel AAUP Chapter at Adelphi Univ. and Bd. of Regents (1997)
The firm persuaded the Board of Regents to hold a hearing under a little known provision of the New York State Education Law pursuant to which the Regents can remove members of the Board of Trustees of any University charted by New York State. The petition sought the removal of the entire Board of Adelphi University for failing to exercise their fiduciary duties in connection with the remuneration and benefits awarded the then-President of the University, Peter Diamondopolous. The petition resulted in a 28-day hearing before a panel of the Board of Regents. Following the hearing, the full Board of Regents voted to remove the entire Board of Trustees, save one recently appointed member. This was only the second time that the procedure had been invoked in the past 100 years. The decision in the Adelphi case has served as a precedent for the responsibilities of boards of not‑for‑profit institutions and was relied on by the Attorney General of New York in the actions against the Board of the New York Stock Exchange for awarding excessive compensation to its former Chairman, Richard Grasso.

libertyapparelCommc’n Workers of Am., Dist. One, AFL-CIO v. NYNEX Corp., 898 F.2d 887 (2d Cir. 1990)
The Second Circuit Court The Second Circuit Court of Appeals affirmed a preliminary injunction requiring defendants to provide COBRA coverage to 60,000 striking workers.  This was the first such case brought under COBRA, which had been enacted in 1986.  The 60,000 worker strike began August 1989 and lasted 17 weeks, with one worker losing his life on the picket line.

libertyapparel Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314 (1983)
After transit workers went on strike against the New York City Transit Authority, two management labor law firms sued the transit unions for damages, claiming they had suffered economic losses because of the strike. The New York Court of Appeals held unanimously that their lawsuits were legally without merit because the Taylor Law (New York’s statute governing labor relations in the public sector) prohibiting public sector strikes did not entitle anyone allegedly injured because of such a strike to recover damages.