Pickets For Sale

Word comes that many unions, like employers, are now engaged in outsourcing labor. In what appears to be an effort to mold public perception toward a belief of increased union membership, unions are hiring non-members to walk the picket line. Stop blinking heavily and shaking your head, you read it correctly.

These “pickets for hire” come from a wide variety of backgrounds, including the homeless, students, retirees and day laborers. Given the declining percentage of union membership (it is estimated that between 12-16% of American workers are unionized), it is not surprising that unions would turn to such a tactic as their most recent contribution to the art of misdirection ... “hey, Rocky, watch me pull a rabbit out of my hat” [that’s a blast from the past for all of you 40-somethings who can remember when Saturday morning cartoons were cool].

In a truly ironic twist [and you know I like those a lot], these hired guns are said to earn just over minimum wage for their services and receive no benefits. A union paying low wages and no benefits to workers? Could it be that unions, like many employers, are being forced to recognize economic reality? It simply boggles the mind.

Lawyer Joke Friday

Sometimes, lawyers say the darndest things. Here's a brief colloquy from an actual court proceeding:

Lawyer: How was your first marriage terminated?
Witness: By death.
Lawyer: And by whose death was it terminated?

Oy!

Update: New Federal Minimum Wage Poster

As I told y'all previously, the Federal minimum wage rose to $5.85 effective July 24, 2007. In addition to raising the minimum wage, employers are required to inform their employees of same by posting a notice. According to the U.S. Department of Labor: "Every employer of employees subject to the Fair Labor Standards Act's minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments so as to permit employees to readily read it. The content of the notice is prescribed by the Wage and Hour Division of the Department of Labor. An approved copy of the minimum wage poster is made available [by the Department of Labor] for informational purposes or for employers to use as posters."

To make life a bit easier for you to comply, here's the link to the portion of the U.S. Department of Labor website where you can download the poster in either black and white OR color: http://www.dol.gov/esa/regs/compliance/posters/flsa.htm

Pretty snazzy, if you ask me.

"Whiz" Kid

In Medard v. Doherty, 113980/06 (N.Y. County Supreme Court, July 5, 2007), the Court upheld the termination of a probationary sanitation worker for failing to provide a urine sample despite his claim of suffering from "shy bladder syndrome." After the worker had been arrested for possession of marijuana (2 weeks shy of the completion of his probationary worker status), he was ordered to provide a urine sample. He did so at 10:00 o'clock on the morning of the request. When it was discovered that his sample was in excess of 100 degrees Fahrenheit, he was ordered to consume water and provide a second urine sample under direct observation. He made an attempt to do so an hour later, but could not. Several further attempts to provide a sample within a specified period that day were unsuccessful.

The Sanitation Department directed the worker to provide a detailed, written evaluation from a physician with medical expertise concerning the issues raised by the worker's failure to submit the second urine specimen. The worker first provided a one-sentence note from his family physician stating that he had a urinary problem and was being evaluated by a urologist. The worker was suspended thereafter pending further evaluation. Later, a second note, submitted by a urologist, stated that the worker had a "shy bladder" and that he was encouraged to drink more. A third note, this time from a psychologist, stated that the worker had to do his business in private and had intense anxiety doing so anywhere other than his home.

The Sanitation Department upheld the suspension based on the worker's failure to provide an adequate explanation with respect to his failure to provide the necessary specimen, and because the urologist was not qualified to diagnose "shy bladder syndrome." The worker commenced an Article 78 proceeding.

The Supreme Court denied the Petition. First, the Court discussed the fact that a municipal agency could terminate a probationary employee without explanation for any reason or no reason, as long as it was not done in bad faith. No bad faith was found in this instance. Second [and I really like this part], the Court opined as follows: "Assuming, arguendo, that petitioner did in fact suffer from shy bladder syndrome … respondent was justified in terminating him. Petitioner does not assert that his alleged shy bladder syndrome was [a] 'medically documented pre-existing psychological disorder.' He did not disclose it on his pre-appointment questionnaire … Notably, he was able to provide the first specimen despite his later claim of an inability to urinate outside of his home."

At a minimum, you've got to give the guy credit for coming up with a "whiz" of a creative excuse.

Lawyer Joke Friday

With all apologies to Jeff Foxworthy, here's this week's tidbit.

You just might be a lawyer IF: You have a daughter named Sue and a son named Bill.

What Goes Around, Comes Around

In Gomez v. F&T Int'l (Flushing, New York) LLC, 101817/05 (New York County Supreme Court, June 25, 2007), the two Plaintiffs were undocumented workers. They were employed by a demolition company (a subcontractor on the Project) and were injured in an accident on site when a portion of the building on which they were working collapsed. One of the workers suffered multiple fractures to his vertebrae, requiring spinal fusion, and resulting in paraplegia; the other Plaintiff sustained bilateral wrist fractures, necessitating surgery to his right hand. The evidence showed that the Defendant employer did not have a safety director at the site, the Plaintiffs were initially not provided with hard hats when they began their employment, and neither of them were provided with harnesses on the date of the accident. Both workers sued for lost wages.

At the time they were hired and thereafter, Plaintiffs were not required to fill out a work application or to show any type of identification, were not asked for a social security number, were always paid in cash, and were never given W-2 forms. In short, the Defendants failed to comply with the requirements of the Immigration Reform & Control Act of 1986 (“IRCA”); under IRCA the onus is on an employer to make certain that it hires a person authorized to work and the failure to do so exposes the employer to civil and criminal prosecution and penalties. After the action was commenced, the Defendants owner and general contractor, moved to compel the production of information about Plaintiffs’ immigration status and argued that Plaintiffs’ lost wage claims could not be maintained because they were illegal aliens.

In denying Defendants’ Motion, the Court held that IRCA did not penalize an alien for attaining employment without having proper work authorization absent a showing the worker engaged in fraud, such as presenting false documentation to secure the employment. The Court found that none of those factors were present in this case. Further [and this is the part I like best], the Court stated: “... it seems somewhat disingenuous for contractors and owners to seek disclosure of the status of an employee after the employee has been injured under the guise of attempting to mitigate a lost wage claim, a concern which apparently never entered their minds when the work was bid out [or when the Plaintiffs were hired].” Accordingly, Plaintiffs’ lost wage claims could proceed.

Ya gotta love decisions like this one ... hooray for the good guys.

Lawyer Joke Friday

It's Friday again! Where DOES the time go? Here's one I really like:

Q. Why are lawyers prohibited from having sex with their clients?

A. To prevent the client from being billed twice for what is, essentially, the same service.

Have fun this weekend, folks.

A Decision Of Biblical Proportions

In Fairchild v. Riva Jewelry Manufacturing Inc., 101169/2006 (June 28, 2007), the New York County Supreme Court held that an individual Defendant was required to respond to interrogatories about his religious beliefs because they formed the basis for the decision to fire the Plaintiff based upon his sexual orientation as a gay man. The Plaintiff, John Fairchild (“Fairchild”) had been an exemplary employee and worked for the Defendant company as a Vice President since 2005. Fairchild alleged that he was fired by Ted Doudak (“Doudak”), the company President, because he was gay. Fairchild further alleged that after he had admitted his sexual orientation to Doudak (on the day prior to his termination), Doudak brought out a Bible and quoted the verses which stated that gays and lesbians were doomed to eternal damnation. Apparently, Fairchild’s employment was terminated without a legitimate business reason and as a direct consequence of Doudak’s learning that he was homosexual.

Fairchild then sued the company and Doudak for violating his rights under New York State and New York City anti-discrimination laws, both of which prohibit discrimination in employment based upon sexual orientation. During discovery, Fairchild served certain interrogatories seeking answers regarding Doudak’s religious beliefs. The interrogatories in issue were: (1) "State whether defendant Doudak believes that 'homosexuality is a sin against God;'" (2) "State whether defendant Doudak believes that 'gays and lesbians are doomed to eternal damnation; '" and (3) "State whether defendant Doudak regards homosexuals as 'repulsive.'" Doudak contested the interrogatories, arguing that they impeded his constitutional rights to privacy and to freely exercise his religion. Fairchild thereafter moved to compel answers and Doudak cross-moved for a protective order.

The Court granted Fairchild's Motion to compel and denied the cross-motion. In requiring Doudak to respond to the interrogatories, the Court stated that not all burdens on religion were unconstitutional when it appeared that the employee’s religion was relied upon to form a basis of discrimination against a person who was a member of a protected class. Here, Fairchild was a member of a protected class under State and municipal law by virtue of his being gay. Doudak was thus unable to hide behind the generally accepted rule of absolute privilege from inquiry into one’s religious beliefs since it was those beliefs which resulted in the adverse employment decision.

I like this one.

Lawyer Joke Friday

Ain't self-deprecation a blast? Here's this week's entry:

Q: How many lawyer jokes are there?

A: Only three. The rest are true stories.

Update - Increase In Federal Minimum Wage

The United States Department of Labor has just announced that, effective July 24, 2007, the Federal minimum wage for covered non-exempt employees will be $5.85 per hour. The minimum wage increases to $6.55 per hour effective July 24, 2008 and to $7.25 per hour effective July 24, 2009.

For those in States having a higher minimum wage than the Federal equivalent, the higher of the two wages is the one that is paid generally. For State-specific information, you may wish to contact your State Department of Labor.

Hope everyone had a great 4th!

Congratulations!

Congrats to my beautiful and intelligent wife, Kathy, on passing the first of nine (count 'em, NINE) exams to become a registered architect. She may now be 1/9th of an architect, but she is, as always, 1,000% terrific!

Update - Employee Free Choice Act Defeated

Last week, the United States Senate blocked the Employee Free Choice Act ("EFCA") from moving forward. As I had mentioned in my article entitled Holy Unionization, Batman! It's The Employee Free Choice Act, EFCA would have, inter alia, eliminated secret ballot elections in cases of union organizing efforts and required employers to recognize a union if a majority of workers in the bargaining unit signed an authorization card. In an ironic twist, the element of "employee free choice" would likely have been disregarded in favor of a system where threats, duress, harassment and intimidation of workers in signing such cards may have been the rule rather than the exception. Is it any wonder then that only about 12% of workers choose union representation when given the anonymity and relative safety of the secret ballot election process?

I'm fairly certain that proponents of EFCA will attempt to introduce the bill in the future. For now, employers can take a deep breath ... or can they?