Federal Judge Rules In Favor of Guest Workers

On January 7, 2008, Senior U.S. District Judge Louis H. Pollak (Eastern District of Pennsylvania) concluded that an employer must reimburse the seasonal guest workers it brought into the United States under the federal government’s H-2B visa program for their transportation costs from the point-of-hire, their visa costs, and fees they paid to employer-designated recruiters in their home country.  (Rivera v. The Brickman Group,Case 2:05-cv-0518-LP)

Under the H-2B program, U.S. employers may petition the Department of Labor for permission to employ non-agricultural foreign workers in the U.S. for less than one year.  In this case, the employer recruited workers in Mexico and Guatemala to perform seasonal landscaping work throughout the U.S.  The transportation, visa and recruitment fees they were forced to incur were as high as $1,000.00. 

Judge Pollak ruled that these costs were primarily for the benefit of the employer and agreed with the Plaintiffs’ argument that the costs operated as “de facto” deductions from the workers’ wages.  Thus, Judge Pollak ruled, the employer was not allowed to pass the costs along to the workers to the extent that doing so reduced their wages below the minimum wage under the federal Fair Labor Standards Act.

The Plaintiffs’ lead attorney is Arthur N. Read, the General Counsel for Friends of Farmworkers, Inc., a Philadelphia-based not-for-profit law firm that represents low-wage workers.  The Executive Director of Friends of Farmworkers, Karen Detamore, says that the case is believed to have been widely watched by both worker and business advocates nationally for its broader impact on industries which widely employ temporary foreign workers.  Indeed, two amicus briefs were submitted in support of the employer's position: one by the Professional Lawncare Network and a joint brief by the American Nursery and Landscape Association, the American Hotel and Lodging Association, and the Federation of Employers and Workers of America.   

Judge Pollak’s opinion is available at http://www.friendsfw.org/H-b/Brickman/Sum_Judgment.pd

Court Finds Oakland Cabbies are Employees

We are very pleased that on January 8, 2008, the Ninth Circuit Court of Appeal issued a ruling in National Labor Relations Board v. Friendly Cab Company.  The Court of Appeal upheld the finding of the National Labor Relations Board and an Administrative Law Judge that taxi cab drivers, driving for Friendly Cab Company and its related entities, were employees under the National Labor Relations Act.

This is the most recent victory in the taxi cab drivers’ struggle to become represented by Teamsters Local 70.  The employees first began their organizing efforts in 2002 with a National Labor Relations Board conducted election.  After it was found that the employees had voted overwhelmingly for union representation, the employer appealed the decision to the National Labor Relations Board.

Despite the National Labor Relations Board supporting the Regional Director’s decision to direct an election, the employers still refused to bargain with the East Bay Taxi Drivers Association and its chosen representative, Teamsters Local No. 70 based in Oakland.

After the company refused to bargain, the Union filed an Unfair Labor Practice Charge with the National Labor Relations Board.  Again, the National Labor Relations Board found that these drivers were employees under the National Labor Relations Act and that the employer was violating the law by failing to bargain.  Now, after more than five years into their organizing struggle, these drivers again have been found to be employees.

Under the Court’s order, the National Labor Relations Board decision that the drivers were employees and not independent contractors was upheld.  Under the common law agency test, the Court upheld the Board’s finding that the company exercised significant control over the means and manner of its drivers’ performance.  Most important for this Court was the evidence showing that these drivers were denied any real opportunity to operate an independent business and develop entrepreneurial opportunities as taxi cab drivers.

In a decision that analyzes each of the most common factors to show employment and independent contractor status, the Court found overwhelmingly these factors point toward employment status for these taxi cab drivers.  Like all case analyzing whether an individual is an independent contractor or an employee, this determination was driven significantly by the particular facts of the case.

This case may make it easier to organize in industries where the employees have traditionally been misclassified as independent contractors.  The Court took a very serious look at the factors to be analyzed in correctly classifying employees.  If you encounter situations in which you believe employees have been misclassified as independent contractors, please contact us so we can evaluate how we should best proceed.

This is an important victory and a testament to the perseverance necessary to organize a union in this country.

Labor Law Updates from Weinberg, Roger & Rosenfeld
DECEMBER 2007

Major Victory for Labor:
Unions Win Access Rights to Leaflet in Privately Owned Malls

Fashion Valley Mall v. National Labor Relations Board
California Supreme Court, Case Nos. 04-1411, 05-1027, 05-2039, S144753

We are very pleased that on December 24 the California Supreme Court issued a ruling in Fashion Valley Mall v. National Labor Relations Board which will have a tremendous impact on the rights of unions and others to engage in First Amendment activity on shopping malls. The Court reaffirmed and strengthened the doctrine in the Pruneyard case that allowed access to shopping malls for activities such as leafleting and petitioning.  David Rosenfeld of our Alameda office argued the case on behalf the intervening Unions.  Caren Sencer, also of our Alameda particiapted in this effort..  Without Mr. Rosenfeld’s and Ms. Sencer’s efforts the NLRB would have been left to defend the case.  The NLRB is notoriously hostile to Union access to private property and probably would have allowed (or urged) further limiting of Union access rights.  Instead, Mr. Rosenfeld and Ms. Sencer secured a major Union victory.
 
This case involved access to the large Fashion Valley Shopping Mall in San Diego and a rule which prohibited any expressive activity which encouraged a boycott of any of the Mall tenants.  The Supreme Court expressly pointed out that protected expressive activity often involves a boycott and that boycotts are part of the American tradition protected by the the California Constitution.

The majority opinion is a strongly worded opinion and our office is very pleased that we were able to represent the Union and preserve this important right for unions and others.  Our representation of the Union was especially important since the NLRB which was a party refused to take any position leaving defense of the Pruneyard rule up to the Union.

The Court’s opinion, however, goes further and expressly refers to those cases in which unions had the right to picket and boycott in shopping malls.  The decision calls into question many of the onerous rules which shopping malls have enacted to restrict activity protected by the California Constitution’s right of expression.  For example many prohibit picketing and limit activity to handing out leaflets.  Many of these “time, place, and manner” rules may be invalid given the broad language of the Court’s opinion.  Our office presently has pending in the Ninth Circuit another case which may resolve to what extent these rules are valid.

This case does not address the current struggle about whether such activities are permitted at single free-standing stores.  This decision however does make it clear that the right contained in the California Constitution to engage in expressive activity is an important right and should not be limited by unwarranted assertions of property rights.

If you encounter situations where malls limit the right of expressive activity, it is important to get a copy of any rules or policies which they have enacted.  Please contact us so that we can evaluate whether these rules are valid under this new decision or how they can be challenged.

Update!  Judge grants preliminary injunction to stop implementation of the Department of Homeland Security’s no-match regulation.

On October 10, 2007, United States District Judge Charles R. Breyer granted Plaintiffs’ motion for a preliminary injunction prohibiting the Department of Homeland Security (“DHS”) from implementing or enforcing its recent regulation regarding the Social Security Administration’s “no-match” letters.  The Judge found that Plaintiffs demonstrated that implementation of the regulation would result in termination of lawfully employed workers, causing “irreparable harm to innocent workers and employers.”  The Judge also found that Plaintiffs raised serious questions about the validity of the regulation itself and the process by which DHS promulgated the rule.  Today’s ruling does not prohibit the Social Security Administration from sending out no-match letters but it does stop the agency’s plans to include DHS letters detailing the regulation with the no-match letters.

Court explains how WARN applies in construction industry

Bader v. Northern Line Layers, Inc. (9th Cir. 2007) ___ F.3d ___.  The Court was asked about the application of the “site of employment” requirement under the WARN Act.  Under the WARN Act, an employer is required to give 60 days notice to employees in advance of a mass layoff.  The Court held that the WARN Act did not apply to the case at hand because there were not enough employees at the actual work site.  The employees were on-site construction employees.  To reach the threshold number of 50 employees for the WARN Act to apply, the employees sought to have the company headquarters used as the actual worksite.  The Court held that the actual worksite was the project site where the employees were dispatched to and that the headquarter staff could not be added to that amount to reach the 50 employee threshold.  Although the company had 195 employees, there was geographic diversity in work locations (10 states), the construction crews were not based out of the headquarters (“outstationed”), and no location had more than 35 employees.

Temporary Order Stops Implementation of Anti-Worker Social Security No Match Letters Regulations of the Department of Homeland Security

Federal Judge Maxine Chesney signed a Temporary Restraining Order restraining implementation of new regulations from the Department of Homeland Security concerning Social Security “no-match” letters. She has scheduled a hearing on a Preliminary Injunction for October 1st, so the new regulations cannot be implemented before that date.

The regulations are detailed instructions to employers who receive letters from the Social Security Administration saying that employee names do not match their social security numbers.  These “no match” letters are nothing new --- people often forget to notify the SSA when they get married and change their name, or employers make bureaucratic mistakes entering this information, or the SSA is just disclosing its own sloppy record-keeping.  What is new are these regulations, which would give an employer and employee 90 days to clarify and correct any such errors --- in the absence of clarification and correction, the employee may end up fired, and the employer may end up being investigated and/or indicted.

The challenge to the regulations has been mounted by the AFL CIO, the ACLU, as well as the San Francisco Central Labor Council, the San Francisco Building Trades Council, and the Alameda County Central Labor Council. All these groups have joined in trying to stop these draconian measures from being used to threaten workers with termination and deportation

Labor Law Blast !

Alameda: 510-337-1001
Los Angeles: 213 -380-2344
Sacramento:  916-443-6600
Honolulu:  808-528-8880

Labor Law Updates from Weinberg, Roger & Rosenfeld
APRIL 2007

California Supreme Court Sides With Labor
Workers Now Have Three Years to Bring Claims for Meal and Rest Break Violations

Labor wins in the Supreme Court!

The California Supreme Court announced Monday that California employees have three years -
not just one, as employers argued—to bring claims for payments employers must provide to
employees if they fail to provide meal and rest breaks required by law.  Since 2000, California
law has required employers to pay an extra hour’s pay for each workday in which a required
meal or rest period is not provided.

Some of the state’s largest employers have been successfully sued for failing to provide meal and
rest breaks as required by Labor Code section 226.7.  In December 2005, a jury brought in a
$172 million verdict against Wal-Mart, based in part on Wal-Mart’s failure to provide breaks.
Employers have argued that the one hour’s pay is a penalty subject to a one-year statute of
limitations; employee advocates, including numerous labor unions, have argued that the extra
pay is a wage, subject to a three-year statute of limitations.  The shorter statute of limitations
would effectively block most claims.

The Court’s decision means that workers who did not receive a meal break or two rest breaks in
an ordinary eight hour shift anytime in the past three years can seek back pay for those missed
breaks.  Since California employers violate these rules every day, Unions and workers have a
powerful weapon.

The Court also determined that, in a trial under Labor Code section 98.2 (an appeal to a trial
court of a decision issued by a Labor Commissioner), an employee can raise claims that were not originally brought before the Labor Commissioner so long as the new claims flow from the same
wage dispute.

Weinberg, Roger & Rosenfeld filed a friend-of-the-court brief on behalf of a group of labor
organizations representing a total of several hundred thousand workers.

The case is Murphy v. Kenneth Cole Productions, Inc., Calif. Sup. Ct. S140308 (filed April 16,
2007).

If you have similar issues or questions about this ruling, please contact the attorney you
usually work with at our office and we will get you the help you need.