BLOGS: Fair Labor Standards Act Law

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Wednesday, August 12, 2009, 12:29 PM

Novel Retaliation Case

Family law met the Fair Labor Standards Act in Centeno-Burnuy v. Becker Farms. In November 2001, four plaintiffs - Ruben Centeno-Burnuy, Waldo Centeno-Burnuy, Aquiles Galindo-Buendia and Joel Pecho-Vivanco - filed an FLSA action against Becker Farms and its owners, Oscar and Melinda Vizcarra, in US District Court in Buffalo NY. The litigation was finally settled in August 2009. Meanwhile, back at the farm, the four plaintiffs had another row to hoe: In June 2003, they filed a separate suit in the same court, asserting they had been retaliated against by Donald A. Perry - father of Melinda Vizcarra and father-in-law of Oscar Vizcarra. Neither the Vizcarras nor Becker Farms were named in the second complaint. Plaintiffs' attorneys in both cases were lawyers with Farmworker Legal Services of New York, who also associated two different Rochester attorneys for the two cases. While Becker Farms and the Vizcarras retained counsel in the first case, Donald Perry, the sole defendant in case number two, represented himself.

Becker Farms has been operated as a family farm in Niagara County, NY for four generations or more. Perry "lives on a two-and-a-half-acre plot in the middle of the 340 acre farm." The farm was granted permission to hire non-immigrant foreign workers under the H-2A visa program, and hired four each year from 1996 through 2001; the four plaintiffs, all Peruvian nationals, worked there through the growing seasons of some or all of that time period. Beginning in 2000, plaintiffs were in contact with the legal services organization, and left the farm's employ in November 2001, immediately following which they began litigation.

Perry then called the Immigration and Naturalization Service to complain that the organization "had aided and abetted these illegal aliens in absconding from Becker Farms." When Perry was warned that his actions were unlawful, Perry's response was not conciliatory: The course of events, so close after the September 11, 2001 international terrorist incidents, led Perry to conclude "that there was something very strange going on," "that these men are here for no good," and that the plaintiffs were "sympathizers of Sendaro Luminoso," the Peruvian group better known in the US by its English name, Shining Path. He then embarked on a multimedia campaign against the plaintiffs and their attorneys, also making complaints to state and federal law enforcement and regulatory agencies. He coupled these activities with hounding and harassing an employee of another organization, Rural Opportunities Inc., notwithstanding both a preliminary injunction against Perry and his conviction for criminal contempt.; he even continued to pursue her after she left Rural Opportunities' employ.

On July 14, 2009, Magistrate Judge L. Kenneth Schroeder issued an order recommending that Perry be found liable for retaliation - accusations for which Perry had proffered no real defense - but denying plaintiffs' request that the injunction be made permanent. On August 5, District Judge Richard Arcara adopted the recommendations and set a hearing for August 28 to select a trial date.

Trial may be somewhat anticlimactic. The remedies for FLSA retaliation other than injunctive relief sometimes can include damages for emotional distress and mental anguish, and if the case goes to a jury, particularly if Perry continues to represent himself, the outcome could be qute unfavorable to him. Note that Judges Schroeder and Arcara did not have to rely on the definition of "employer" in the statute - the "acting in the interest of en employer with respect to an employee" language we discussed in a recent post - because the prohibition of retaliation in FLSA's Section 15(a)(3) extends to "any person," thus rendering irrelevant Perry's contention that he "is not an agent of Becker Farms and has never owned or operated Becker Farms." Additionally, prevailing plaintiffs can expect to recover their attorneys' fees and costs. Mr. Perry's conduct would seem to have produced a bit more than he counted on. Centeno-Burnuy v. Perry, W.D.N.Y. No. 03-CV-457.

Thursday, August 6, 2009, 2:31 PM

Principle, or Principal? It's Not Just a Spelling Distinction

Requiring employees to work overtime is not an unusual employer demand, but in situations in which employees band together to refuse overtime, the issue is not as simple. In health care, it's even more involved: Section 8(g) of the National Labor Relations Act, 29 U.S.C. Sec. 158(g), mandates that a labor organization "before engaging in any strike, picketing or other concerted refusal to work at any health care institution" must (except in initial-contract bargaining situations) give the employer and the Federal Mediation and Conciliation Service at least 10 days' notice of "the date and time that such action will commence."

Interpretation of that statutory requirement was the question presented in SEIU, United Healthcare Workers-West v. NLRB, decided in the US Court of Appeals for the Ninth Circuit on August 3 ( www.ca9.uscourts.gov/datastore/opinions/2009/08/03/07-73028.pdf). Union-represented housekeepers and linen aides employed by California Pacific Medical Center were urged by their labor organization to work no overtime, because the collective bargaining agreement between the Union and CPMC forbade the employer to require overtime except in emergencies. Although CPMC had been able to deal with workload pressures through allowing employees to volunteer for overtime work, a proposed change in handling linens provoked the Union to contend there was a violation of the agreement's provisions on subcontracting, resulting in the suggested job action.

An administrative law judge and the National Labor Relations Board agreed that the Union's conduct stepped over the line. and ordered the Union to "cease and desist" their encouragement of work stoppages in the form of overtime refusal. The Ninth Circuit, enforcing the NLRB order, found no safe harbor for the Union's conduct in the language of the collective bargaining agreement. The basis for future mischief is, however, the court's comment on an issue which the Union argued but which the evidence did not support: '[T]here would not necessarily be a concerted refusal to work in the event all employees, acting independently, were unwilling to volunteer for overtime. Here, however, the members did not act on an individual basis. Rather, their action was 'concerted' because it was orchestrated by the Union."

This situation is a narrow one. Group protests, whether or not union-inspired, may constitute "concerted protected activity" under the National Labor Relations Act, so that care must be taken by an employer in responding to such a challenge. The 10-day notice requirement was imposed as a price of allowing the organization of hospitals and other health care facilities, and even that protection does not preclude "spontaneous" job actions by employees. One final observation: The overtime issue ran for seven days, after which employees resumed working overtime. The critical period was June 5 through 11, 2006. The employer has absolutely no remedy for the lost week's overtime more than three years ago. Consequently, being right may have meaning in principle - but the employer's principal expenditures, starting with the Union's activity and consuming a three-year legal battle in which there's no possibility of recovering the fees and expenses entailed in the process, would be enough to cause most of us to lose interest.

Wednesday, August 5, 2009, 4:05 PM

Massachusetts Court Overrules Federal Judge

It isn't often that you see a state appellate court telling a federal judge he's wrong, but that's the bottom line in DiFiore v. American Airlines Inc. (Massachusetts Supreme Judicial Court, SJC-10303, Aug. 4, 2009). The story begins with a suit by eight skycaps who worked for an American Airlines independent contractor; they claimed they had been stiffed by American, which collected a fee of $2.00 apiece for checked luggage but didn't turn the money over to the skycaps. Slightly more than a year ago, a federal jury in the District of Massachusetts awarded the plaintiffs $283,000, but then Judge William G. Young set aside the verdict because the jury instructions regarding the Massachusetts "service charge" law were misleading. Now the highest state court in the Commonwealth has concluded that the federal judge was wrong and the jury's instructions were correct. This outcome stems from a procedure in which a federal judge can ask a state court to interpret state law. Plaintiffs' counsel understandably calls this "a great decision." It remains to be seen what will happen next.

(See our prior post, "Checking Out at Curbside" (May 14, 2008) for more background.)
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