The Warshawsky Law Firm Blog

Thursday, November 05, 2015

The Warshawsky Law Firm Files Whistleblower Lawsuit Under The New Jersey Conscientious Employee Protection Act

The Warshawsky Law Firm represents a certified asbestos investigator who was wrongly terminated after he complained that his coworkers and supervisors were illegally forging his signature and using his investigator's stamp on asbestos inspection reports that were submitted to the New York City Department of Environmental Protection.

Our client worked for a nationally recognized engineering and environmental consulting company based in New Jersey.  On at least two occasions, other employees at the company submitted asbestos inspection reports to the NYC DEP under our client's name, without his prior knowledge and authorization, in violation of NYC laws and regulations.  When our client complained to management about these illegal practices, he was retaliated against and fired.

The Warshawsky Law Firm has filed a whistleblower lawsuit on our client's behalf asserting claims under the New Jersey Conscientious Employee Protection Act.  The NJ CEPA provides, in relevant part, that “[a]n employer shall not take any retaliatory action against an employee because the employee . . . (a) Discloses . . . to a supervisor . . . an activity, policy, or practice of the employer . . . that the employee reasonably believes (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to . . . any governmental entity . . . or (c) Objects to . . . any activity, policy or practice which the employee reasonably believes (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to . . . any governmental entity . . . .”  N.J. Stat. § 34:19-3.

The lawsuit was filed this week in the U.S. District Court for the Southern District of New York.  Case No. 15-CV-8592 (WHP) (SDNY).  Steven M. Warshawsky is lead plaintiff counsel on the case.

If you or someone you know has been retaliated at work for "blowing the whistle" on the company's illegal activities, please contact The Warshawsky Law Firm today. 

Wednesday, October 28, 2015

Conducting Voir Dire In Civil Rights Cases Involving Police Misconduct: The Catch 22

As civil rights attorneys, The Warshawsky Law Firm represents people whose constitutional and statutory rights have been violated by government agencies and private institutions.  The most common civil rights cases we handle are lawsuits against the police for false arrest.

False arrests happen everyday in New York City and in cities and states across the country.  Basically, a false arrest occurs anytime a police officer arrests a person without "probable cause."  Probable cause exists when a police officer has knowledge or reasonably trustworthy information (more than mere suspicion) sufficient to believe that the person to be arrested has committed a crime.  If a police officer does not have this knowledge or information, then it is illegal (under both federal and state law) to arrest the person.  For more information about the law governing false arrest claims, see here and here.

Although false arrests, and other civil rights violations, happen to people of all socioeconomic backgrounds, they happen disproportionately to racial minorities, especially African-Americans.  In the remainder of this blog post, I want to discuss how this situation affects -- and hampers -- handling these cases at trial.  The problem arises in the context of selecting jurors to serve on juries.

Trial by jury is a venerable institution that is designed to protect individual rights and promote justice by having cases decided by ordinary citizens in the local community, instead of by judges or other government officials.  While no system of justice comes close to being perfect, trial by jury is a crucial part of our representative democracy and, in my opinion, is the best method for resolving most legal disputes.

How are juries selected for trial?  This happens at the start of trial, in a process called "voir dire."  (This is French, derived from the original Latin, for "to speak the truth.")  Voir dire is defined in Black's Law Dictionary as "[a] preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury."

At the start of trial, a large group of potential jurors is brought to the courtroom.  Then they are questioned (in federal court, almost exclusively by the judge; in state court, by the judge and the attorneys) to determine (i) who is unable to serve on the jury for personal or medical reasons, (ii) who may have conflicts of interest relating to the case, and (iii) who may be biased or otherwise unable to treat the parties fairly and impartially.  During this process, which can take several hours, many people will be excused for one reason or another.  The remaining 6 or 12 people (depending on the required size of the jury) become the jury for trial.

Obviously, when litigating these cases, especially cases involving black plaintiffs, it would be helpful to have people on the jury who are sensitive to the reality of police misconduct.  In my experience, however, most people automatically assume that police officers, by virtue of being cops, are "good people" who simply are doing their jobs.  Many police officers are; but many aren't. 

Unfortunately, the jurors who would be most open-minded to the idea that a police officer may have violated a person's rights tend to be people who have had their own bad experiences with the police.  These people know that police officers do not always respect individual rights and sometimes assert their power arbitrarily and without justification.  This is particularly common among African-Americans jurors, who frequently tell stories of negative interactions with police officers that they, their family members, or their friends have experienced.

The Catch 22 referred to in the title of this post is that these jurors, who otherwise are qualified to serve, usually are excused from the jury -- not on "racial" grounds, but on the grounds that they cannot be fair to the defendant police officers -- leaving only jurors whose rosy view of the police has not been clouded by real life experience.  The result is that juries in civil rights cases are inherently biased in favor of the police, because only people with "positive" attitudes towards police officers are allowed to serve on the jury. 

Civil rights lawyers who have tried cases will agree that it can be difficult to persuade a jury that police officers violated a plaintiff's rights.  This is especially true in false arrest cases (but less true in excessive force cases, where the misconduct is harder to rationalize away).  As explained above, the challenge in these cases begins with jury selection, where potentially helpful jurors routinely are excluded from the jury.  Plaintiffs and their attorneys should keep this dilemma in mind when litigating these cases and weighing the pros and cons of settling versus going to trial.


If you or someone you know has been the victim of a false arrest or other police misconduct, please contact The Warshawsky Law Firm today.

Monday, October 12, 2015

To Settle Or Not To Settle, That Is The Question

Although people speak about "having their day in court," very few civil cases actually go to trial.  The vast majority of civil cases either are dismissed or settle.  According to various online sources, only approximately 10% of civil cases go to trial.  Moreover, research shows that many of the cases that go to trial would have been better off settled.  In this blog post, I want to discuss some of the considerations that go into deciding whether or not to settle a lawsuit.

As I explain to potential clients, in most cases, it is not easy to win a lawsuit.

First, the plaintiff's allegations have to be strong enough to avoid being dismissed for "failure to state a claim for relief."  This is a relatively low hurdle to jump over (but higher in federal court than in state court).  Assuming the plaintiff has a legitimate grievance against the defendant, and assuming that the plaintiff's allegations do not raise novel legal issues, this hurdle is one that a competent lawyer should be able to get over -- or the lawyer should not take the case.

The second, much higher hurdle is called "summary judgment," which is where the defendants ask the judge to throw out the lawsuit because, based on the evidence developed during discovery, there is no basis for the jury to rule in the plaintiff's favor.  Some kinds of cases, e.g., employment discrimination, are especially prone to being dismissed on summary judgment.  Other kinds of cases, e.g., false arrest, are less likely to be dismissed on summary judgment.  Unfortunately, at the start of a lawsuit, it is difficult to predict the chances that any given case will be dismissed on summary judgment.  Nevertheless, the ability to exercise this judgment accurately is a hallmark of an experienced, effective civil litigator.

The last hurdle that a plaintiff must get over to win a lawsuit is the trial.  Even when the plaintiff has a strong case, the jury can side with the defendant.  There are no guarantees once the jury starts deliberating.  The jury's sense of "justice" does not have to coincide with the plaintiff's.  Moreover, depending on the type of case, it can be more or less challenging to persuade the jury to find in favor of the plaintiff.  For example, juries are notoriously reluctant to rule against police officers in civil rights cases.

In short, winning a civil lawsuit isn't easy, but litigation is an all-or-nothing affair in which the only outcomes are win or lose. 

Given the nature of the legal system, it almost always make sense for the plaintiff to settle for a reasonable amount of money instead of running the risk of losing and obtaining no compensation for the harms the plaintiff has suffered.  (In addition, plaintiffs who lose cases can be required to reimburse the defendants for their costs and attorney's fees -- so the plaintiff ends up even worse off financially.)

OK, but what is a "reasonable amount of money"?  How is this determined?

Unfortunately, there is no formula that can answer this question.  It involves making an educated assessment of the "value" of the case (based on the damages that the applicable law allows a plaintiff to recover) and the "likelihood" of winning or losing at each stage in the litigation process (primarily based on case law).  These variables then must be viewed in light of the plaintiff's financial circumstances and willingness to risk losing the case.  For example, a plaintiff who does not "need" the money from a settlement is going to evaluate a case differently than someone who needs the money to pay bills.  Very few plaintiffs are this fortunate, however.  Most need the money, and sooner than later -- which can be a compelling reason to settle a lawsuit.

But again, it all depends on whether the defendant makes a "reasonable" settlement offer.  Some offers are just too low to accept, even for cases that are worth little and have low chances for success.

In my experience, however, most defendants in most cases will make settlement offers that are "reasonable" based on the facts and law of the case, even if the offers are lower than the plaintiffs would like (as they almost always are, of course).

This brings me to a critical issue:  unrealistic expectations.  In my experience, most plaintiffs believe their cases are "worth" more than they really are (from a legal perspective).  This is understandable, because the plaintiffs have experienced injustice and want compensation.  Unfortunately, the law usually does not provide for the amount of compensation they think is fair.  Usually, the law provides for much less.  In those situations, all I can do is explain to my clients how the legal system values their case and help them make an appropriate settlement decision based on the strengths and weaknesses of their case as well as their personal circumstances.

At The Warshawsky Law Firm, our goal is to obtain as much compensation as possible for our clients.  We screen potential cases carefully.  We research and draft complaints thoroughly.  We conduct aggressive discovery to obtain the evidence needed to defeat a motion for summary judgment.  Above all, we prepare cases with an eye for trial.  We are not afraid to take cases to trial.  Indeed, we had three jury trials this year alone.  But this does not mean that going to trial always is in our clients' best interest.  Often it isn't.  It almost always makes more sense to accept a reasonable settlement than to "roll the dice" at trial.

The decision whether or not to settle ultimately depends on the facts of each case and each plaintiff's personal circumstances.  Sometimes, however, plaintiffs refuse to settle and then obtain a worse outcome later (either a lower settlement, a summary judgment dismissal, or a loss at trial).  This happens much more often than the cases in which the plaintiff "hits a home run" at trial.

If I could offer just one piece of advice to plaintiffs, it would be to lower their expectations and accept settlement offers that they and their attorneys think are "reasonable"; then they should take the money, consider that a victory, and move on with their lives. 

Wednesday, September 23, 2015

Representing College Students Wrongly Accused Of Sexual Misconduct

In recent years, there has been an explosion of sexual misconduct cases at our nation's colleges and universities.  Many commentators ascribe this increase to the U.S. Department of Education's "Dear Colleague Letter" that was issued in April 2011.  The "letter" actually is a "significant guidance document" that advises colleges and universities about their obligations under Title IX of the Education Amendments of 1972 -- specifically, their "responsibility to take immediate and effective steps to end sexual harassment and sexual violence."        

While there is considerable debate about the true incidence of sexual assault among college students,  in their zeal to address this problem, colleges and universities have trampled on the rights -- and ruined the futures -- of many students (invariably male) who have been wrongly accused and "convicted" (by the schools, not the courts) of sexual misconduct.  This is a complicated legal issue, but there is no question that the student disciplinary systems currently in place at many colleges and universities do not comport with basic principles of due process and equal protection.

Is it possible for a college student wrongly accused of sexual misconduct to "fight back"?  Yes, but again the issue is complicated.  To date, there have been at least 86 lawsuits filed across the nation challenging these student disciplinary proceedings.  See here for a listing of these lawsuits.  So far, most of the courts that have ruled on these lawsuits have sided with the schools, but there have been some rulings favorable to the students.   Legally, this is an evolving area, with different causes of action (due process, equal protection, Title IX, breach of contract, defamation, and others) being pursued to accomplish the same goals:  to exonerate the student of wrongdoing, to restore his academic standing, and to obtain compensation for the harms done to him.

At The Warshawsky Law Firm we are available to represent college students who have been wrongly accused of sexual misconduct.  We can assist with pending student disciplinary proceedings and we can represent students in court to challenge the unfair outcomes in these cases.  Because these cases are legally complex and loaded with political agendas, it is important to retain experienced, sophisticated counsel for these matters.      

For more information about representing college students wrongly accused of sexual misconduct, please contact The Warshawsky Law Firm today.  

Monday, September 21, 2015

A Tale Of Two Cases: Why Some Employment Discrimination Plaintiffs Win And Others Lose

At The Warshawsky Law Firm, we handle a wide variety of employment discrimination cases.  When first meeting a prospective client, perhaps our most important task is evaluating the strengths and weaknesses of a potential lawsuit.  Indeed, we usually are asked by the client whether he/she "has a case" and "what are the chances of winning."  This is a complicated question that can be difficult to answer based on the limited information and documentation that the client usually has in his/her possession.  Often times the full picture of an employment situation does not emerge until after the lawsuit has been filed and the parties engage in discovery.

The central question in every discrimination case is whether the plaintiff can prove that the employer was motivated by unlawful discriminatory bias, hostility, or animosity.  For example, in a wrongful termination case, was the plaintiff fired because of his/her race or age or religion, etc.?  While the plaintiff may "believe" that he/she was discriminated against by the employer, this is not good enough in court.  To be able to win a lawsuit in court, the plaintiff must have objective evidence that shows that the employer acted from a discriminatory motive.

What kind of evidence?  While each case is different and various factual circumstances can raise an inference of unlawful discrimination, the most common types of evidence that courts look for are discriminatory comments and differential treatment of similarly situated employees.

Discriminatory comments are just that -- spoken or written comments that demonstrate discriminatory animus.  For example, derogatory comments about a person's race or sex or disability, etc.  Comment evidence is the most important type of evidence in an employment discrimination case.   

Differential treatment of similarly situated employees means, for example, that the employer treats black and white employees differently in the same context (for example, when being disciplined for alleged infractions of workplace rules).  This is the second most important type of evidence -- showing that employees are treated differently for no reason other than their race, sex, disability, etc.

Two recent decisions by U.S. District Judge John Gleeson of the Eastern District of New York (a highly respected jurist) illustrate these basic principles. 

The first case is Charles Krugler v. MTA New York City Transit Authority, et al., Case No. 12-CV-2900.  The second case is Russell Herling v. New York City Department of Education, et al., Case No. 13-CV-5287. 

In the Krugler case, the plaintiff was a 57-year old transit employee who alleged that his employer had discriminated against him on the basis of age by rejecting him for 18 promotions that he had applied for between 2001 and 2011.

In a decision issued on September 10, 2015, Judge Gleeson granted the defendants' motion for summary judgment and dismissed the lawsuit.  Why?  Because the plaintiff did not have any evidence, other than his own opinion, that he had been discriminated against based on his age.  There were no discriminatory comments, and the evidence showed that older employees had been interviewed for and in some cases selected for the positions in question -- as Judge Gleeson explained, "[t]his is persuasive evidence that the defendants did not discriminate against Krugler based on his age."  Moreover, "Krugler was eventually promoted to the position of AGS, one of the positions he claims he was passed over for because of his age."  Based on these facts, Judge Gleeson concluded "as a matter of law" that "age discrimination played no role in the failure to promote Krugler."

In the Herling case, the plaintiff was a white Jewish physical education teacher at a public high school in Brooklyn who alleged that his employer had discriminated against him on the basis of race and religion by disciplining him for workplace infractions, giving him an unsatisfactory rating, and denying him opportunities for additional pay.

In a decision also issued on September 10, 2015, Judge Gleeson denied the defendants' motion for summary judgment and allowed the plaintiff's case to proceed to trial.  Why?  Unlike the plaintiff in the Krugler case, the plaintiff in the Herling case offered objective evidence of his supervisor's discriminatory animus.  This evidence included several discriminatory comments and specific examples of non-white and non-Jewish teachers receiving preferential treatment.  For example, the plaintiff showed that black employees who committed the same alleged rules infractions (e.g., being late to work, not submitting student grades properly) were not disciplined for the same or worse conduct for which he was disciplined.  Judge Gleeson agreed with the plaintiff that this evidence was sufficient to raise an inference of discrimination.  Although the defendants offered various non-discriminatory reasons for the plaintiff's workplace treatment, Judge Gleeson ruled that the plaintiff's evidence was strong enough to require a jury to decide whether or not he had been discriminated against.

The outcomes in these two cases highlight the crucial importance in an employment discrimination case for the plaintiff to present objective evidence -- usually in the form of discriminatory comments and/or differential treatment of similarly situated employees -- that the employer was motivated by discriminatory animus.  Without such evidence, it is very difficult for a plaintiff to persuade a court to allow the case to go to trial.


If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.

Thursday, September 17, 2015

The Warshawsky Law Firm Files Excessive Force Case Against NYPD On Behalf Of Young African-American Man

The Warshawsky Law Firm has filed a federal civil rights lawsuit against the City of New York and two individual NYPD officers on behalf of a young African-American man who was brutally assaulted and falsely arrested by police officers in the Meatpacking District in Manhattan.  The lawsuit was filed in the U.S. District Court for the Southern District of New York.

The events in the case took place in February 2014.  The plaintiff and several of his friends (all African-Americans) were leaving a nightclub when they noticed a crowd of people (predominately white) forming around two cab drivers who were having an argument.  The plaintiff and one of his friends walked over to see what was happening.  Shortly thereafter, two police officers arrived on the scene and ordered the crowd to disperse.  The plaintiff and his friend promptly complied with the officers' order and started walking away towards the sidewalk.

While the plaintiff was walking away, without warning or provocation, one of the police officers forcefully shoved him in the back and shouted, “I told you to go.”  The plaintiff was startled and stumbled, then turned around with a perplexed look on his face and asked his friend, “Why is this guy pushing me?"  There was no justification for the officer to shove him.  It appears that the officer (who is white) intentionally singled out and assaulted the plaintiff because he is African-American.

Without warning or provocation, the officer then shoved him again, this time even more forcefully and on the chest.  This caused the plaintiff to start falling backwards and he instinctively reached out and grabbed the officer's jacket to try to stop himself from falling.  The officer then grabbed the plaintiff by his arms and shoulders and starting lifting him up.  The plaintiff believed that the officer was helping him to his feet, and he apologized for grabbing his jacket, but then the officer tried to throw him on the ground, the two men became tangled, and they both fell to the street.

The physical contact between them was initiated by the police officer, without legal justification and for malicious purposes.  The plaintiff did nothing more than try to prevent himself from falling.  He did not hit, trip, or throw the police officer. 

After the plaintiff and the officer fell to the ground, additional police officers rushed over and started assaulting him.  The plaintiff was pushed, grabbed, punched, kicked, and struck with batons, while the officers cursed at him.  At one point while he was being assaulted, the plaintiff felt a police officer place a knee in the middle of his back and then lift up his head and torso from behind. While he was being held in this position, he saw the first police officer walk up to him and knee him twice in the face, breaking his nose and causing extensive bleeding and bruising. Then he was pulled to his feet and placed under arrest on bogus charges of assaulting a police officer, obstructing governmental administration, and disorderly conduct.  The charges eventually were dismissed. 

This is a very serious case of police abuse, involving an unprovoked and unjustified assault, excessive force, serious personal injuries, and false arrest and malicious prosecution based on trumped-up charges designed to cover-up and excuse the police officers' gross misconduct and violation of the plaintiff's constitutional rights. 

This case originally was handled by the law firm of Rubenstein & Rynecki, who filed the case in state court in October 2014 but then allowed the case to flounder for many months until our client came to us looking for lawyers who would be committed to his case.  The Warshawsky Law Firm will fight this case aggressively, so our client receives the justice and compensation due to him for the harms he suffered by the police.    


If you or someone you know has suffered abuse at the hands of the police, please contact The Warshawsky Law Firm today.

Wednesday, September 09, 2015

The Warshawsky Law Firm Files False Arrest Lawsuit Against Toys "R" Us

On August 27, 2015, The Warshawsky Law Firm filed a false arrest lawsuit against Toys "R" Us on behalf of a former Toys "R" Us store manager who was wrongly accused of stealing cash from the store safe.  The case was filed in the U.S. District Court for the Eastern District of New York.

As alleged in the complaint (names redacted for privacy):

This is an action for false arrest, malicious prosecution, and related causes of action, in violation of New York state law, arising from the plaintiff's arrest on August 29, 2014, based on a false criminal complaint made to the police by the Regional Asset Protection Manager for Toys “R” Us.

The plaintiff worked as the store manager for the Toys “R” Us store in Bayshore, New York.  The company wrongly and maliciously accused the plaintiff of stealing a cash deposit bag from the store safe, despite surveillance videotape evidence (produced by Toys “R” Us during the criminal case) showing (1) the plaintiff depositing the cash bag into the safe at the time of the alleged theft and (2) the cash bag later being removed from the safe by an assistant store manager – conclusively demonstrating that the theft did not occur by the plaintiff.

The company's investigation into the theft was negligent, reckless, unreasonable, unprofessional, and incompetent.  The investigator never interviewed the plaintiff about the theft. He overlooked and/or ignored exculpatory evidence concerning the plaintiff.  He never considered the assistant store manager – the last person seen in possession of the stolen cash bag – a potential suspect.

Based on the evidence available to the investigator at the time he reported the theft to the police, there was no probable cause to accuse the plaintiff of the crime.  Nevertheless, based on his complaint, the plaintiff was arrested and charged with felony grand larceny; he lost his job and remained unemployed for one year; he and his family suffered great personal and financial distress; and he was prosecuted for nearly 10 months before the charges against him were dismissed by the Suffolk County District Attorney’s Office.

By this action, the plaintiff demands compensatory damages for the harms he has suffered as a result of the defendant’s tortious conduct (in an amount no less than $500,000), punitive damages to punish and deter the defendant from engaging in similar tortious conduct in the future (in an amount no less than $500,000), attorney's fees and costs, and all available legal and equitable relief.  The plaintiff demands trial by jury.


If you or someone you know has been the victim of a false arrest, please contact The Warshawsky Law Firm today.

Friday, September 04, 2015

The Warshawsky Law Firm Wins "Not Guilty" Verdict For Client Falsely Accused Of Violating Order Of Protection

Not guilty.

That was the jury's verdict yesterday in a criminal case in Suffolk County District Court in Central Islip, New York.  The Warshawsky Law Firm represented the defendant, who had been falsely accused by a former boyfriend of violating an order of protection by making two telephone calls to his residence and leaving a message on his answering machine.  The specific crime charged was criminal contempt in the second degree (P.L. 215.50 (3)).  The former boyfriend had tried to set up the defendant, to get back at her after his wife (who our client did not know about) discovered he was having an affair.

Steven M. Warshawsky was lead counsel on the case.  On cross-examination of the prosecution's witnesses -- the arresting police officer and the former boyfriend -- Mr. Warshawsky demonstrated to the jury that there was no evidence substantiating the accusation against our client.  There were no telephone records of the alleged calls, and the answering machine message had been digitally date-stamped with a completely different day and time than the date that the alleged calls were made.  The jury saw through the implausible excuses offered by the witnesses for these gaps and discrepancies in the prosecution's evidence.  The jury deliberated only 30 minutes before returning their "not guilty" verdict.

We are extremely happy for our client, who has been living with the burden and stress and fear of this hanging over her head for a year and a half.

Justice was done.        

Monday, August 03, 2015

Second Circuit Adopts Pro-Employer "Primary Beneficiary" Test For Unpaid Internships

In a previous blog post, I discussed whether unpaid internships for private businesses run afoul of federal and state wage laws.  At that time (September 2013), the prevailing view was that such internships were prohibited by the U.S. Department of Labor's six-factor test (DOL Fact Sheet #71). 

The DOL test was applied in the case of Glatt v. Fox Searchlight Pictures, Inc., by the federal district judge who ruled that the plaintiff interns who worked without pay for Fox Searchlight Pictures were "employees" entitled to minimum wage and overtime under federal and state wage laws.  On Appeal, however, this ruling was reversed by the U.S. Court of Appeals for the Second Circuit (which has jurisdiction over federal courts in New York, Connecticut, and Vermont).

In its decision, issued on July 2, 2015, the Second Circuit held that the DOL's six-factor test is not controlling and instead adopted a "primary beneficiary" test that examines, under the totality of the circumstances, "whether the intern or the employer is the primary beneficiary of the relationship."  This test is much more favorable to employers than the DOL's test.  The Second Circuit remanded the case for a new decision by the district judge using this new legal standard.

The Second Circuit explained the "primary beneficiary" test as follows (legal citations omitted):

The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.  Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.

Although the flexibility of the primary beneficiary test is primarily a virtue, this virtue is not unalloyed.  The defendants’ conception of the primary beneficiary test requires courts to weigh a diverse set of benefits to the intern against an equally diverse set of benefits received by the employer without specifying the relevance of particular facts.  In somewhat analogous contexts, we have articulated a set of non-exhaustive factors to aid courts in determining whether a worker is an employee for purposes of the FLSA.

In the context of unpaid internships, we think a non‐exhaustive set of considerations should include:

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 intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

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

6. The extent to which the intern’s 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.

Applying these considerations requires weighing and balancing all of the circumstances.  No one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage.  In addition, the factors we specify are non‐exhaustive -- courts may consider relevant evidence beyond the specified factors in appropriate cases.

Even more important for employers than the wording of this new "primary beneficiary" test is the Second Circuit's repeated emphasis that the test requires "a highly individualized inquiry."  This is legal lingo for "cannot be proved through common, generalized, class-wide evidence."  Consequently, although the Second Circuit coyly declined to answer the question in its opinion, this new test probably does not lend itself to collective actions (under the FLSA) and class actions (under state wage laws).  As a result, plaintiffs will have to pursue their claims individually and not as part of larger lawsuits.  While this will protect employers from expensive litigation, it also will disincentivize interns with meritorious but small claims from pursuing compensation in court.

Not surprisingly, the employment defense bar is very happy with the Second Circuit's decision.  For management-side commentary on this decision, see, e.g., here (Orrick), here (Littler), and here (Seyfarth Shaw).

If you or someone you know has worked as an unpaid intern and would like more information about the possibility of obtaining compensation under federal and state wage laws, please contact The Warshawsky Law Firm today.    

Monday, July 27, 2015

Document Review Attorneys May Be Entitled to Overtime Pay

Last week, the U.S. Court of Appeals for the Second Circuit issued a potentially groundbreaking decision, ruling that a contract attorney who worked on a document review project for Skadden Arps sufficiently alleged that his job duties did not constitute "the practice of law," thereby entitling him to overtime compensation under the federal Fair Labor Standards Act.  The case is David Lola v. Skadden Arps Slate Meagher & Flom, LLP, and Tower Legal Staffing, Inc., Appeal No. 14-3845-cv (decided July 23, 2015).  For news coverage of the decision, see here.

The basic facts of the case are as follows:  The plaintiff was hired as a contract attorney through Tower Legal Staffing to work on a document review project for Skadden Arps in connection with multi-district litigation pending in the U.S. District Court for the Northern District of Ohio.  The document review project was conducted in North Carolina.  The plaintiff was an attorney admitted to practice in California.  The plaintiff worked 45-55 hours per week and was paid $25 per hour.  The issue was whether the plaintiff was entitled to overtime pay under the FLSA (time-and-a-half for all hours over 40 in a workweek) for his work on the project.

The U.S. Department of Labor regulations implementing the FLSA exempt from the overtime requirement "[a]ny employee who is the holder of a valid license or certificate permitting the practice of law . . . and is actually engaged in the practice thereof."  See 29 C.F.R. § 541.304.  (Note:  The regulations have a different exemption rule for lawyers, who do not fall under the common exemption rule for "professional employees."  For a summary of the exemption rules, see here.)  The question in the Lola case, therefore, was whether the plaintiff was "actually engaged in the practice [of law]" when he was performing document review.

The plaintiff alleged that his work was closely supervised and that "his entire responsibility  . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided."  The defendants provided him with the documents to review, the search terms to use, and the procedures to follow if the search terms appeared in the documents.  Based on these facts, the plaintiff argued that he was not engaged in the practice of law (and therefore was owed overtime) because he exercised no independent legal judgment in performing his document review work.

The district court below had disagreed and granted the defendants' motion to dismiss.  The district court had held that document review per se constitutes the practice law, applying North Carolina law because that was where the plaintiff worked.  This decision was widely heralded as a victory for large law firms that routinely employ contract attorneys to conduct document review. 

The Second Circuit reversed.  As the Second Circuit noted, under North Carolina law, the practice of law requires "at least a modicum of independent legal judgment."  In this case, accepting the plaintiff's allegations as true (as required on a motion to dismiss), the Second Circuit held that the plaintiff "adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants."  The Second Circuit continued:  "A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided.  The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law."

The case has been remanded to the district court.  The plaintiff now has an opportunity to prove his allegations in court and to obtain the overtime wages owed to him.

If you or someone you know has worked as a document review attorney, you may be entitled to overtime pay.  Please contact The Warshawsky Law Firm today.             

Wednesday, June 03, 2015

U.S. Supreme Court Clarifies Broad Scope Of Religious Protection Under Title VII

On June 1, 2015, the U.S. Supreme Court issued its eagerly anticipated decision in the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., which presented the question whether an applicant for employment is required to inform the employer of her need for a religious accommodation in order to be protected by Title VII of the Civil Rights Act of 1964.  The Court (in an 8-1 decision written by Justice Scalia) said no, holding that "[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."  This important decision clarifies the broad scope of religious protection under Title VII.

Title VII is a federal statute that prohibits discrimination in employment based on race, color, religion, sex, or national origin.  Title VII applies to employers throughout the country with at least 15 employees, including federal, state, and local government agencies.  Under Title VII, it is an “unlawful employment practice” for a covered employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a).

In the Abercrombie case, the plaintiff was a practicing Muslim who applied for a position in an Abercrombie store.  She was wearing a traditional headscarf during her interview.  She was interviewed by an assistant store manager, who considered the plaintiff qualified to be hired, but was concerned that the headscarf would conflict with the company's "Look Policy," which strictly prohibited employees from wearing "caps" at work.  The assistant store manager raised this concern to the store manager, who provided no guidance, then she spoke with the district manager, who told her that the headscarf would violate the Look Policy.  The assistant store manager mentioned that she believed the plaintiff wore the headscarf because of her faith, but the district manager said that the Look Policy applied to all headwear, religious or otherwise, and he decided that the plaintiff could not be hired.

The U.S. Equal Employment Opportunity Commission (EEOC) filed the lawsuit on behalf of the Muslim applicant, claiming that the company's Look Policy violated the plaintiff's rights under Title VII.  The district court ruled in favor of the plaintiff, but the Tenth Circuit reversed on the grounds that the Look Policy was a "neutral" job requirement.  The EEOC appealed to the U.S. Supreme Court, which ruled in favor of the plaintiff.

The Supreme Court explained that Title VII by its terms protects "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate" the employee's religious observance or practice "without undue hardship on the conduct of the employer's business."  See 42 U.S.C. § 2000e(j).  In other words, Title VII imposes an affirmative duty on employers to reasonably accommodate an employee's religious practices, unless doing so would impose an "undue hardship" on the business.  Contrary to the company's position, the Supreme Court emphasized that "Title VII does not demand mere neutrality with regard to religious practices - that they be treated no worse than other practices.  Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual . . . because of such individual's' 'religious observance and practice'."  Consequently, "Title VII requires otherwise-neutral policies to give way to the need for an accommodation."

Based on these principles, the outcome in the Abercrombie case was clear:  The company could not refuse to hire the plaintiff based on its Look Policy merely because she wore a Muslim headscarf.  The Court did not decide if accommodating the plaintiff's headscarf by making an exception to the company's Look Policy would impose an "undue burden" on Abercrombie; that issue will be considered by the lower courts on remand (unless the case is settled). 

Importantly, the Court held that the employer does not have to "know" as a fact that the employee needs a religious accommodation for the protections of Title VII to apply.  Even a mere suspicion or belief is enough, because the statute focuses on the employer's motive not its knowledge.  As the Court explained:

"Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.  Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed."

"Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward:  An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.  For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays.  If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII."

Title VII's "disparate treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.  A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability."

In sum, under Title VII an employer may not base employment decisions on an applicant's or employee's known or suspected religion, including beliefs, observances, and practices, and must accommodate an employee's religion, unless doing so would impose an undue burden on the business.

For additional commentary on the Abercrombie decision, see here (SCOTUS blog) and here (Politico).

If you or someone you know has been the victim of religious discrimination in the workplace, please contact The Warshawsky Law Firm today. 

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