Friday, December 8, 2017

Hearst interns not entitled to salary under the FLSA

The Court of Appeals over the last year or so has clarified the rules governing when interns are entitled to salary under the Fair Labor Standards Act. So far, the Court has been ruling against the interns. It does so in this case as well.

The case is Wang v. Hearst Corporation, decided on December 8. Here are the standards governing when interns are really employees and are entitled to payment for their services:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa;

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions;

3. The extent to which the internship is tied to the internʹs formal education program by integrated coursework or the receipt of academic credit;

4. The extent to which the internship accommodates the internʹs academic commitments by corresponding to the academic calendar;

5. The extent to which the internshipʹs duration is limited to the period in which the internship provides the intern with beneficial learning;

6. The extent to which the internʹs work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern;

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
This test derives from Glatt v. Fox Searchlight Pictures, 811 F.3d 528 (2d Cir. 2016), which the principle case in the Second Circuit on this case. The multiple plaintiffs in this particular case worked for Hearst publications and were interested in careers in fashion. One interned for Cosmopolitan. They did perform tasks relating to their professional pursuits and gained valuable knowledge and skills. But they also complained many of their duties were menial and repetitive, did not receive close supervision or guidance and there was little formal training. They mastered most of their tasks within a few weeks but did the same work for the rest of their internships.

So are they interns or employees under the FLSA? The Court of Appeals (Jacobs, Cabranes and Wesley) says factors 1 and 7 favor Hearst because plaintiffs did not expect payment or entitlement to a job.

As for factor 2 (training), the Court says plaintiffs "would . . . limit the discussion of beneficial training . . . to education that resembles university pedagogy to the exclusion of tasks that apply specific skills to the professional environment." That Court does not see it that way. "Training" under the Glatt test "clearly contemplates that training opportunities offered to the intern include products of experiences on the job." While plaintiffs tacitly assume that professions, trades and arts are or should be just like school, "many useful internships are designed to correct that impression."

Factors 3 and 4, dealing with academic integration and the academic calendar, favors Hearst for most of the interns because for one, the internship was a graduation requirement, and for another, the internship meshed with her academic major.

Moving to factor 5, this also favors Hearst because "practical skill may entail practice, and an intern gains familiarity with an industry by day to day professional experience."  As for favor 6 -- which considers the extent to which an intern's work complements the work of paid employees or displaces it -- the Court notes that "An intern’s work is complementary if it requires some level of oversight or involvement by an employee, who may still bear primary responsibility." This favor is not dispositive.

All told, the factors favor Hearst. While plaintiffs argue that any mixed inferences require a trial, under the totality of the circumstances, Hearst wins as a matter of law. The mere existence of some factual dispute is not enough for trial under general summary judgment principles, and "Status as an 'employee' for the purposes of the FLSA is a matter of law, and under our summary judgment standard, a district court can strike a balance on the totality of the circumstances to rule for one side
or the other."

Wednesday, December 6, 2017

Judge can bring discrimination lawsuit under City Human Rights Law

Judges are employees, too, right? At least this judge is. She is an Administrative Law Judge who works for a New York City agency, the Department of Consumer Affairs. She sues the agency for sex and age discrimination, as well as retaliation.

The case is Kassapian v. City of New York, an Appellate Division ruling handed down on November 15. The plaintiff mostly sues under the New York City Human Rights Law, which provides greater protections than the New York State Human Rights Law and Title VII. The appellate court summarizes her claims this way:

The complaint alleged that the plaintiff and other ALJs spoke out internally within the agency and externally to public officials and the press about an alleged [Department of Consumer Affairs] practice of improperly pressuring ALJs to issue recommended decisions in favor of the agency and to impose maximum fines. The plaintiff was allegedly demoted and subjected to other retaliation due to this speech and to her complaints concerning alleged sexual harassment.
It goes without saying that the alleged pressure for ALJs to issue certain rulings would be a major scandal. But the Appellate Division focuses mostly on whether she has an actionable claim.

On the sexual harassment claim, plaintiff may proceed to discovery upon claiming a coworker "repeatedly demonstrated a sex toy to the plaintiff." She submitted an affirmation from a coworker that corroborates this allegation. This may not constitute a hostile work environment under Title VII (as the harassment must be severe or pervasive), but the rules are different under the City law, which says that any contention that "the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss." The Second Department cites a well-known First Department case for this proposition, Williams v. New York City Hous. Auth., 61 A.D.3d 62 (1st Dept. 2009), so I wonder if this is the first time the Second Department has ruled this way. If it was not the standard in the Second Department in the past, it is now.

Plaintiff also has an age discrimination claim based on a demotion. We don't know much about this claim except that the individual defendants are the same age as plaintiff. That does not mean she does not have a claim under the City law. Another example of how the City law provides greater protections for plaintiffs than federal law.

Finally, we got ourselves a First Amendment retaliation claim arising from the corruption speech. Not only did plaintiff speak on a matter of public concern, but "the allegations that the plaintiff was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently pleaded that the subject speech was a substantial or motivating factor for an adverse employment action."

Tuesday, December 5, 2017

Every lawyer's nightmare

In this case, the plaintiff's lawyer had three court conferences at the same in three different counties. He tried to attend all the conferences but, of course, that plan failed and he did not make it in time for his federal court appearance in Brooklyn. So the judge dismissed the case after waiting 29 minutes for counsel to appear.

The case is Smalls v. County of Suffolk, a summary order decided on December 4. We all remember how judges react to lawyers who show up late, if at all. We had a judge in White Plains (since retired) who would simply have the court conference without the other lawyer present. Another judge in White Plains will have the conference by calling the offending lawyer and having him participate by phone. A judge at Foley Square would sit on the bench and look at the clock every few minutes before announcing how much time had elapsed since counsel was supposed to be in court. Things are different in state court; the judges put the case at the end of the calendar in assuming the late lawyer is somewhere else in the courthouse before a different judge.

In this case, it was the second time counsel failed to appear for a conference. The case was dismissed sua sponte with prejudice. The Court of Appeals (Leval, Hall and McMahon [D.J.]) reinstates the case, holding that dismissal was too harsh a remedy "because the dereliction of Plaintiffs' attorney could be appropriately dealt with by a monetary sanction on the attorney, instead of so harshly sanctioning the Plaintiffs who were innocent of the dereliction."

While it is true the court can dismiss a case for failure to prosecute under Rule 41(b), that dismissal must "be proceeded by particular procedural prerequisites, including notice of the sanctionable conduct, the standard by which it will be assessed, and an opportunity to be heard." That test draws from Baptist v. Sommers, 768 F.3d 212 (2d Cir. 2014). That procedure was not followed here. While "there was no excuse for counsel's failure to notify a busy district court judge that his obligations to appear on the same morning in three separate courtrooms in three counties made it likely that he would be late for the conference, . . . the sanction imposed was needlessly severe and punished the wrong person." The Second Circuit suggests a monetary sanction on remand might work.

Thursday, November 30, 2017

NY Court of Appeals rejects federal standard for punitive damages under NYC Human Rights Law

The New York Court of Appeals has outlined for the first time the legal standard governing punitive damages under the New York City Human Rights Law. The court rejects the willful/malicious standard that governs Title VII in place of a lesser standard, consistent with the City law's directive that courts liberally interpret this remedial statute beyond the reach of Title VII.

The case is Chauca v. Abraham, decided on November 20. I argued the appeal. The case reached the New York Court of Appeals because the Second Circuit sent it over the New York court for clarification on this issue. As the case originated in the Eastern District of New York, where Chauca won a pregnancy discrimination verdict but was denied the opportunity to seek punitives, Chauca appealed to the Second Circuit, seeking a remand on the punitive damages issue. The Circuit certified this issue to New York's highest court, which now clarifies the punitive damages equation under the City law.

We argued that the punitive damages standard is the same as the liability standard: if you discriminate, you risk punitive damages. That argument is based on statutory construction and the general goals of the City law. The New York Court of Appeals disagreed, ruling that punitives under the City law are governed by the following common law standard:

a plaintiff is entitled to punitive damages where the wrongdoer's actions amount to willful or wanton negligence, or recklessness, or where there is "a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard."

This standard is more pro-plaintiff than Title VII, which provides for punitive damages on the following basis:

The Title VII standard requires "intentional discrimination . . . with malice or with reckless indifference to the . . . protected rights of an aggrieved individual" and the Supreme Court has specified that "the terms `malice' or `reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination."
In 2001, the Second Circuit held that the Title VII standard governs the City law's punitive damages entitlement. That case is Farias v. Instructional Systems, Inc. (259 F.3d 91 [2d Cir 2001]). In 2005, the NYC Council directed courts to interpret the City law separate and apart from Title VII, admonishing courts that had assumed both statutes carried the same standards. In certifying Chauca to the New York Court of Appeals, the Second Circuit appeared ready to jettison Farias. This ruling from the New York Court appeals rejects Farias, which now is no longer good law.

Judge Wilson dissents from his 6 colleagues on the New York Court of Appeals, agreeing with Chauca that the punitive damages standard under the City law is identical to the liability standard.

The case now returns to the Second Circuit, which will apply the New York Court of Appeals' standard to the facts in Chauca in determining whether Chauca is entitled to a hearing on punitive damages in the Eastern District of New York.

Tuesday, November 28, 2017

Qualified immunity takes away $62,000 verdict for inmate

This case is a good example of how qualified immunity works. The plaintiff is incarcerated. He won his trial on the due process claim arising from his administrative segregation. The Court of Appeals agrees that plaintiff's rights were violated, but it takes away the verdict because the defendants are entitled to qualified immunity.

The case is Allah v. Milling, decided on November 22. Connecticut inmates are classified upon entering jail based on certain risk factors, including their disciplinary history and their propensity for violence. Upon his return to prison, he was placed in the a restrictive setting because that's where he was when he last left the Big House. In this setting, he spent 23 hours a day in his cell and endured other indignities, like limited showers and physical restraints. Finding that jail officials violated the due process clause, the trial court ruled in his favor and awarded Allah $62,650 in damages.

The Court of Appeals taketh away the verdict. Prison officials have leeway in classifying pretrial detainee under the due process clause, but they cannot place restrictions solely in order to punish them, particularly since they have not yet been found guilty of anything. There must be a legitimate governmental purpose in classifying inmates. Courts don't like to second-guess jail decisions, but until the Constitution is found to longer apply to prison decisionmaking, judges will not hesitate to rule in an inmate's favor if the facts warrant it.

The Circuit (Lynch, Katzmann and Pooler) finds that Allah's rights were violated because the jailers did not make an individualized decision in placing him in the most restrictive classification. They simply made the placement because that's where plaintiff was when he last left prison. But that does  not end the inquiry. Public officials are immune from suit if they did not violate the plaintiff's clearly-established rights, as determined by settled Supreme Court and Second Circuit precedent. Qualified immunity gets many public officials off the hook, as a rights violation may not have been apparent at the time they were exercising their discretionary decisionmaking. That's the case here.

While prison officials many not punish people in jail prior to an adjudication of guilt, that legal principle is too general in determining whether the defendants are entitled to qualified immunity. In answering this question, we consider whether other cases on these or similar facts are on the books. There are none. Instead, the jailers were following established Department of Corrections practice in sending Allah to administrative segregation. "No prior decision of the Supreme Court or of this Court ... has assessed the constitutionality of that particular practice." In dissent, Judge Pooler states that Allah was placed in solitary for no good reason and that the Supreme Court in Bell v. Wolfish has prohibited such decisionmaking.

Monday, November 27, 2017

Grunt work does not make an intern an employer under the state labor law

Under the state labor laws, interns who obtain an educational benefit from their placements are not employees and are therefore not entitled to the wage protections that everyone else gets. In this case, the plaintiff was placed in an internship at a nursing and rehabilitation center. But she wants to get paid because she did not obtain any educational benefits from her placement. The Court of Appeals disagrees, and plaintiff gets zero dollars for her time.

The case is Sandler v. Benden, a summary order issued on November 13. Plaintiff says that during her time at Bayview Manor, she did "grunt work" and only "secretarial tasks" but receiving nothing of educational value. After she complained about this, she was dismissed from Bayview and expelled from college. She was later reinstated at college but did not receive course credit for her year-long internship. So wasn't she just another employee and not an intern? No.

In 2015, the Court of Appeals devised a multi-part test in determining when an intern is really an intern and not entitled to the benefits of the labor law, such as minimum wage. That case  is Glatt v. Fox Searchlight Pictures, 811 F.3d 528 (2d Cir. 2015). This eight-part balancing test is all the more trickier since no single factor is dispositive.

In this case, factors that hurt plaintiff's case are (1) she did not expect compensation when she started the internship and (2) she did receive educational training during her internship as she was assigned an individual client at the facility and received one group assignment. Also, she had to write down her experiences as a social work intern. And she would have received academic credit had she completed the program. In addition, the duration of her internship coincided with the academic calendar year and she was never promised a paid position at the facility upon the completion of her internship. While she was given "drudge work," that alone is not enough. The Court of Appeals has held that "employers could receive an immediate advantage from unpaid interns." In other words, interns perform grunt work for which there is no paycheck.

Tuesday, November 21, 2017

State Court of Appeals upholds protective vehicle search

In this case decided by the New York State Court of Appeals, the judges find that the police were allowed to conduct a limited protective search this guy's car because they reasonably thought the car had weapons.

The case is People v. Hardee, decided on November 16. This brief ruling does not tell us what happened to occasion the search. But a lengthy dissenting opinion from Judge Stein (joined by two other judges, making this a 4-3 ruling) gives more detail. According to the dissent, the police pulled over defendant in Manhattan for driving more than 20 MPH over the speed limit. When the police pulled him over, he seemed nervous and hyper and admitted there was alcohol in the car. He also looked over his shoulder a few times and did not exit the car until the police had asked him to do so two or three times. Once out of the car, he was cooperative during the frisk, but with his hands placed against an adjacent vehicle, he looked over his shoulder a few times toward his car. When the police searched the car, they found a bag inside. They found a gun inside.

The majority said this search was legal under the Fourth Amendment. The dissenters say it was not. They note that the Fourth allows the police to conduct a limited protective search if they reasonably think the car has a weapon inside, and that "it may be difficult for police officers to determine whether suspicious behavior is merely ordinary nervousness related to police encounters, indicates the presence of a weapon" or the existence of other contraband.

Judge Stein makes it clear that suspects do not have to actually retrieve a weapon before the officer may believe the car has a gun or some other contraband. But this case does not cut it, she writes, because "no facts . . . established that, at the time of the search,  defendant had displayed any behavior that would give rise to a belief that a weapon located in the vehicle presented an actual and specific danger to the safety of the officers." She adds, "even assuming that there was a reasonable basis to believe that there was a weapon in the car -- a factor which I do not concede is satisfied here -- there is no record support for a finding that a protective search was justified."

Not only did defendant not evade the police vehicle or refuse to pull over his car, Judge Stein writes, but his nervousness was not sufficient to justify a protective search, as per Court of Appeals case law. He did not reach into his car to retrieve anything, and he exited the car without any hostility. This is a lengthy dissent, particularly since the majority ruling is only a few paragraphs long. But Judge Stein can only get two judges to join her. That's not enough for a majority, so the conviction for possessing an unlawful weapon is sustained.