Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener and the Liberty Justice Center. Please direct media inquiries to Kristen Williamson.

Friday, January 29, 2021

New England poli sci group announces virtual meeting, extends CFP deadline for faculty, grad students

NEPSA art
The New England Political Science Association (NEPSA) has decided that its spring 2021 annual conference will be all virtual.

The call for proposals (CFP) deadline has been extended to February 19, 2021. NEPSA will convene on April 23 and 24, 2021.  The CFP is open to faculty and graduate students.  I have tremendously enjoyed this conference in past years and found it to be a collegial, inclusive, and supportive environment for scholars both junior and senior, and both political science and interdisciplinary, including law students. 

NEPSA subject-matter sections are: American Politics, Comparative and Canadian Politics, International Relations, Political Theory, Politics and History, Public Law, Public Policy, and Technology and Politics.

Thursday, January 28, 2021

How many people suffer while state unemployment office shuffles paper, issues baseless denials?

I wrote in 2020 about the pay cuts foisted on faculty and staff at UMass Dartmouth.  We're a union shop, which is weird for university faculty in the United States, but at least is supposed to be good for workers.  So for my pay cut—about 11.6%, plus $4k in professional development budget, over one calendar year, so far—the union got me, in return—wait, let me punch the numbers into the calculator—

Nothing.

I quit my union membership once and for all, before the ink dried on the union's Memorandum of Abdication.  But thanks to the compulsory representation law in Massachusetts, I'm still bound to give away anything the union, with its refined talents at the bargaining table, decides that I should give away.

Let me interject a disclaimer that I am not complaining about having a job during the pandemic.  As will become clear momentarily, I am writing about this for the very reason that my concern extends to the many persons who are not as fortunate.  I push myself every day, literally every day, to count my blessings and be grateful, and to find a way to show compassion for those facing hardships during this crisis.  Some days I do better than other days.

With regard to my personal situation, I suggest, I hope modestly, only that in exchange for a pay cut, there might have been some benefit afforded in return: maybe a leniency in job requirements, such as research or teaching load; maybe flexibility in course scheduling; maybe an "IOU" for development budget down the road.  I might could have been bought off for the price of some reference books from my wish list.  Or a new hoodie.  I can always use a hoodie.

I suggested these bargaining chips (except the hoodie) to the union.  No response.  I understand.  It takes a lot of energy and focus to give so much away in so short a time.

But this isn't about the union.  Not today.  Today I write about another bloated bureaucracy feeding ironically at taxpayer teats: the Massachusetts Department of Unemployment Assistance, or "Mass UI."

I was given the option, which I accepted, to take part of my pay cut as furlough during the holidays in December.  There was absolutely no reduction to my workload in December, so one might question the utility of a furlough.  But the idea was, the university told us if carefully to disclaim any guarantee, we could claim unemployment insurance to recover a fraction of four days' pay.  It happens that my wife, who also works for the university as an administrator, also took a pay cut (two, actually, for staff) and furlough (also two).  I'm trying to leave her out of this, and I definitely do not speak for her, so I will tell only what I have to to get my story across.

Let me interject again: As a taxpayer, I am not a fan of one financially stressed public institution shoving its accounts payable off on another financially stressed public institution.  That doesn't seem to me to be an efficient way to solve the problem of stress on the fisc.  But I don't make the rules.  We've got a kid in college.  I'm not leaving money on the table.

So we both filed, at different times in 2020, for whatever unemployment insurance we might recoup.

My wife's online account access was immediately shut down, purportedly in response to a spate of fraudulent claims received by Mass UI.  While her access was blocked, Mass UI (claims that it) sent an electronic request for documents to confirm her identity.  She didn't know about any request, because access was blocked.  She couldn't file the docs, even if she'd known to, because access was blocked.  Meanwhile, Mass UI confirmed the validity of her claim with university HR.  

And then Mass UI denied her claim anyway for supposed failure to provide ID.  She didn't even find out about the denial until months later, because, say it with me, access was blocked.

Having witnessed that mess of an experience, I set my account for hard-copy correspondence only, by mail.  Mass UI sent to me, in hard copy, a request for documents to confirm my identity.  Promptly, I returned, in hard copy, the documents requested.  Presumably, Mass UI could confirm my identity, too, and the legitimacy of my claim, with the university.  I work for the state, after all.  But I was trying to play nice.

Twenty days later, Mass UI denied my claim anyway for supposed failure to provide ID.

We both now have appeals pending.  I expect we will have to go to Boston for hearings (50 miles and two hours each way, expensive parking, different days).  As yet, the hearings have not been scheduled.  My wife's first claim dates back to the summer, in the heyday of federal subsidies.  Good times.

As I just wrote to the Commonwealth Attorney General, at some point, misfeasance slides into malfeasance.  I don't know what's going on at Mass UI.  But it's inexcusable.

And that brings me back around to people who are really hurt by this kind of misfeasance or malfeasance by public officials.  People already are suffering for so many reasons: pandemic risk, joblessness, homelessness, systemic disadvantages of race and socioeconomics.  If my family's experience with Mass UI has resulted in two out of two legitimate, easily confirmed claims being rejected on nakedly indefensible, if not outrightly false, grounds, then how many claims are being wrongfully denied for claimants who are depending on unemployment assistance in a time of crisis?

Look, we're lucky.  I know it.  We're both lawyers.  We have the know-how to appeal, and to sue if necessary.  We have the flexibility in our work to adjust our schedules for hearings, and a car to go to Boston if we have to.  We make decent money, even after pay cuts, educational loan debt, and college tuition bills.  We'll be OK.

But today is one of those days that I feel like I'm falling short on compassionate action.  I should do something.  Something should be done.  

I don't know what.  Or how.

I do suspect that Mass UI is running the vaccine roll-out.

This blog is mine and mine alone, and not a product of my employer.  I speak as a private citizen, not a representative of the university, even if my writing sometimes also serves public interests, which is part of my job.  I reference my job and work profile on this blog for purpose of identification only.  While this disclaimer always pertains, I wish to emphasize it today.

UPDATE, Feb. 16, 2021: Our IDs were accepted and matters remanded from appeal to reprocessing thanks to heroic intervention, for which we are grateful, by an individual in the UMass Dartmouth HR office.  Of course, that doesn't alleviate our concerns about people in Massachusetts who are in serious need. WGBH reported on February 8 on "shocking[] dysfunction[]" in the system, having exactly the impact we feared.

Wednesday, January 27, 2021

Landlord owes no duty to cyclist attacked by tenant's dog, court rules, citing breed discrimination ban

A "dog law" decision in the Massachusetts Appeals Court today recognized the state's ban on breed-specific legislation and refused to recognize a landlord duty to protect a passing bicyclist from a tenant's pit bull.

Pixy.org CC0
In affirming the defendant's motion for summary judgment, the court recited the plaintiff's facts.  Plaintiff-bicyclist Creatini had his dog on a leash as he passed the unfenced yard of tenant Mills, owned by defendant-landlord McHugh.  Mills's pit bull terrier left the yard, gave chase, and attacked the plaintiff's dog.  The plaintiff fell from his bike and was injured—in the fall, not directly by the pit, though no word on how the plaintiff's dog fared.  McHugh knew that Mills kept the pit bull and had told him to get rid of the dog.

The court rejected plaintiff's effort to charge the landlord with a landowner duty of care in negligence.  Massachusetts approaches landowner liability through the "reasonableness under all the circumstances" approach, rather than the formalist common law framework of invitees and licensees.  Under either approach, landowner liability exposure can project beyond the property line along with a "condition of property," such as a dog.  But here, McHugh's knowledge was limited to the presence of a dog, not a foreseeable danger.  "Nothing in the summary judgment record indicate[d] that McHugh was aware that Mills's dog was aggressive or prone to attack passers-by," the court wrote.

The short case decision is instructive on duty in tort law, generally, and on animal law, in particular.  As to duty, the court briefly recited the conventional approach.  While it may be said that all persons owe a duty to all others to avert harm through the exercise of reasonable care, it is simultaneously true in American tort law, in general, that persons do not owe a duty to strangers with whom they have no interaction.  A "special relationship" recognized in common law also can give rise to duty, as for an innkeeper to a guest, but no such theory pertained here.

Photo by Airman 1st Class Jeremy Wentworth, 97 AMW/PA
Landowner liability grounds duty in the particular relationship between the premises owner (or controller) and one who comes on (or here, very near) the land.  To test here whether landlord and stranger-passerby were connected by strong enough a thread to support duty, the court quoted precedent, which in turn quoted 20th-century tort scholars Prosser and Keeton, recognizing the weight of public policy and common sense in the analysis (quotation marks and ellipses omitted):

The concept of duty is not sacrosanct in itself, but is only an expression of the sum total of considerations of policy which lead the law to say that the plaintiff is entitled to protection.  No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

The plaintiff pointed to precedent in which the Supreme Judicial Court (SJC) recognized a duty owed by a keeper of firearms to a policeman shot by a man who had access to the keeper's home, whom the keeper knew to be under psychiatric observation, and who stole one of the weapons.  Foreseeability in that case was stronger on the facts, and, critically, the SJC had relied on a common law duty, echoed in statute, to manage a dangerous instrumentality, the gun, with the utmost care.

In animal law, in contrast, Massachusetts statute charges a dog owner, but the dog's owner only, with strict liability for injury inflicted by the dog.  Moreover, the court declined the plaintiff's entreaty to treat pit bulls (not actually a breed) specially as a "dangerous instrumentality," like a gun, volatile chemicals, or explosives.  (The defendant disputed the dog's breed, a question of fact, the court recognized, but not one that needed to be resolved for summary judgment.)  The court cited a line in a 2008 SJC opinion stating that a pit bull is "commonly known to be aggressive."  But subsequently enacted legislation dictates a contrary policy inclination.  The court recognized in footnote:

[D]ogs cannot be regulated based on their breed. In 2012, Massachusetts amended G. L. c. 140, § 157, to provide in part: "No order shall be issued directing that a dog deemed dangerous shall be removed from the town or city in which the owner of the dog resides. No city or town shall regulate dogs in a manner that is specific to breed."

Indeed, the 2012 Massachusetts law against breed-specific regulation was a victory for animal protection advocates.  The SJC's 2008 observation was correct as a statement of public perception, and perhaps reality.  But insofar as aggressiveness is a pit trait, it is a function of human selection.  Breed-discriminatory legislation leads to excessive euthanasia of animals that are not dangerous.  (Not for the faint of heart, be warned, Wikimedia Commons has a moving graphic image of euthanized pits, and I could not stomach using it here.)  Read more at "Stop BSL."

Pit bull advocates include Patrick Stewart, Star Trek's Captain Picard.  He was recently coronavirus-vaccinated and is soon to start shooting Picard season 2, a show on which he wanted to be sure that his character's dog is a pit.  Advocates also include one of my sisters, who today brings a new (human) baby home to live with her pits, Mia and (the original) Baby, the sweetest dogs I've ever known.  And combating breed discrimination has been a cause of the Animal Law Committee of the Tort Trial Insurance Practice Section of the American Bar Association, with which I've volunteered in the past.

[UPDATE, Jan. 28:] See CBS Sunday Morning correspondent Martha Teichner with her bull terrier, Girlie, featured in The New York Times on January 22 (subscription).  [Jan. 31:] See her talk about her new book, a dog romance, on CBS Sunday Morning, embedded below

© ASPCA
Among many groups, the American Society for the Prevention of Cruelty to Animals (ASPCA) tracks anti-breed discrimination legislation and counted 21 state bans on breed-specific legislation (BSL) as of April 1, 2020.  "There is no evidence that breed-specific laws make communities safer for people or companion animals," the ASPCA writes, and the Centers for Disease Control and Prevention (CDC), having studied dog bites and human fatalities, also opposes BSL.  In my home state of Rhode Island, local breed-specific legislation seems to persist, despite abrogation by state law in 2013.

The case is Creatini v. McHugh, No. 19-P-1159 (Mass. App. Ct. Jan. 27, 2021).  Justice C. Jeffrey Kinder authored the opinion of a unanimous panel that also comprised Justices Massing and Grant.

One must admit, duty in dog law is a succulent subject.

Monday, January 25, 2021

'For the first time, we're seen as we should be seen,' Martin Luther King Jr. told Star Trek's 'Uhura'

Prepping the spring semester when classes start the day after an involuntary furlough is prone to put a particular professor perpetually a week behind.  So forgive me for belatedly marking Martin Luther King, Jr. Day, which fell this year on Monday, January 18. Or we can say this is a more timely commemoration of yesterday's World Day for African and Afrodescendant Culture.

Of all the things one could relate about the legendary Dr. King, Nichelle Nichols (IMDb, PBS), Star Trek's original Lt. Uhura, has the very best story.

That's from the 2011 documentary, Trek Nation (IMDb, Amazon).  She told the story also to the Television Academy Foundation in 2019.

Thursday, January 21, 2021

'Horace and Pete' captures American moment

In our fast-paced platinum age of TV, a show foregone is too often vanished in the void, maybe a gem to be unearthed by a future socio-archaeologist, maybe a treasure committed to eternity.  Subsisting with this embarrassing extravagance, I watch as much TV as humanly possible.  Last week, I wrestled a prize from the gravity of evanescence.

The Harvey Weinstein allegations splashed across the internet in 2017.  "Me Too" got a hashtag, and so many of our screen stars were plucked from reverence that it wasn't easy to keep track of who was on the outs and whom we still could watch.  Relative qualitative assessment of sin was not a lawful plea.  Hollywood was blanched in black and white, and the implicated were expeditiously expatriated.  Here, certainly, I'm not meaning to diminish #MeToo, nor to opine on the merits of any accused, but only to observe the outcome.

Comedian Louis CK was out.  He already had been grist for the rumor mill, and then ugly accusations surfaced.  King Louis was deposed before the curtain closed on 2017.  He had not been a favorite of mine anyway, so, to be honest, I barely noticed.

Edie Falco in 2009
So there were a lot of reasons why I, and a lot of people, missed Horace and Pete (short trailer below, from Hulu via YouTube).  CK created, wrote, directed, and starred in the series in 2016.  It was a 10-episode television drama, sort of.  Really it was an experimental web series.  It was experimental in how it was made, a budget crowd-sourcing operation that filmed, episode to episode, only as funding goals were reached.  CK sought both to pioneer a democratic model for making online TV and, with full transparency, to publish the model so that others could do it, too.  That business model didn't work out.  But A for aspiration.

The show also was experimental for what it was: a TV show, on a set, yes.  But through scene structure, stage direction, blocking, cuts (or lack thereof), and especially dialog, the show exudes the intimacy of a live stage play, and every viewer has the best seats.  Sometimes the actors make mistakes, let slip a sly smile, or trip over a line, but the camera carries on.  Longer episodes even have an "Intermission"—the word burns for a minute, white type on a black screen, suggesting that sets and costumes are changing behind the electronic curtain.  One is given the impression that crowd-sourcing doesn't swell the budget for endless takes and post-production wizardry.  The ultimate effect is to make the viewer feel like an insider in the conceit of the art.

And art it is.  CK stars as the eponymous Horace, owner of a rundown Brooklyn bar, Horace and Pete's, and its apartment above.  The bar survived the 20th century as the inheritance of generations of Horaces and Petes.  Now, a hundred years on, the bar, and the family, might have entered their coda.  The script bears ample evidence of CK's signature wit, droll style, and sardonic frown.  But the story is thoroughly a tragedy.  In the distinctively American tradition of Death of a Salesman, Horace and Pete is unrelenting with its occasions for despair, and yet, somehow, manages to illuminate the silver linings of family, loyalty, and love.

Alan Alda
CK the star might be the least compelling actor of the principal cast, and that seems to be exactly his plan.  The show is sumptuously star studded, and CK wrote for himself a central yet characteristically subdued role that serves to intensify others' shine.  As Horace's sister, Sylvia, Edie Falco does her most moving work since The Sopranos.  As present-generation Pete, the abundantly accomplished Steve Buscemi has done nothing else quite like this to date.

As the elder "Uncle Pete," the incomparable Alan Alda turns in a career-capstone performance, the omega to the broken-protagonist alpha of Goodbye, Farewell, and Amen, 33 years before.  Jessica Lange brings elegance to the dispirited surviving love interest of an elder Horace, and Aidy Bryant is incandescent as the aggravatingly unforgiving estranged daughter of CK's Horace.

The cast is rounded out with a stunning breadth of stand-up talents, often offering edgy and well-tuned comic relief, who take turns as bar flies.  The list is too long to give it its due, a who's who of contemporary American comedy.  So I'll mention only my favorites: Steven Wright and Kurt Metzger banter throughout the series.  Amy Sedaris, Michelle Wolf, and Colin Quinn get an episode each.  And there are cameos, too.  Mayor Bill de Blasio drops in the bar as himself, and magician David Blaine tries to trade a trick for a drink.

CK with a Peabody in 2013
(Photo by Anders Krusberg
/Peabody Awards CC BY 2.0)

Horace and Pete earned some critical acclaim before it dropped off the radar.  It won a Peabody Award in 2016 "[f]or a truly independent and groundbreaking demonstration of how quality television is expertly done in the new media environment, all the while building upon decades of artistry and craft."  And then there was 2017.

The show might be rising the recommendation ranks at Hulu now because CK spent 2020 at hard labor on the rehabilitation road.  Again, I'm not opining on the appropriate consequences for, or redemption eligibility of, a #MeToo offender.

The fact that I cannot escape is that too many people gave too much and worked too hard on Horace and Pete, and the sum of what they made is too valuable, to write it off.  Label it with whatever disclaimers one must, #MeToo and financial failure.  Amid our transition from broadcast frequencies to the electronic multiverse, Horace and Pete nevertheless represents a pivotal moment in cultural creation and a searing snapshot of the American condition.

Wednesday, January 20, 2021

Divided court allows employee firing for exercising statutory right to supplement personnel record

Pixy.org CC BY-NC-ND 4.0
An at-will employee may be fired for rebutting an adverse employment action, the Massachusetts Appeals Court held today, despite a state law that specifically empowers employees to add rebuttals to their personnel records.  The decision drew a vigorous dissent from two of the five justices on the rehearing panel.

As my 1L students tire of hearing, we read cases in law school (in the common law tradition) for one of a number of purposes.  For any given lesson, it's important to know which our purpose is, especially when it is to demonstrate the rule by counterexample.  To teach wrongful termination, I have used a federal case, applying Massachusetts law, in which the court is much more generous to the at-will claimant than a state high court typically is.  But today's case proved only the norm.

The instant plaintiff found no relief from the usual rule that, as the Appeals Court quoted precedent, "employment at will can be terminated for any reason or for no reason."  Massachusetts admits of narrow exception to the rule for "well-defined public policy," "preferably embodied in a textual law source."  Think firing a model for taking maternity leave, a claim that resonates with dimensions of both statutory entitlement and civil rights.  Yet even while the plaintiff here pointed to a specific statutory entitlement, the Appeals Court rejected his claim.

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

Meehan's rebuttal was not in the appellate record, the court wrote in a footnote.  From its absence, one might infer that it was not predicated on what the court would regard as worthy public policy.  An employer's "internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception," the Supreme Judicial Court held previously.  "If it were otherwise, our courts would become super personnel departments," the Appeals Court reasoned.

Justice Meade
Mass.gov
It would be hard to conclude that the court's ruling is other than consistent with common law norms.  Many a state court has never seen a wrongful termination claim it liked, at least in the context of at-will employment.  And the notion of utterly "at will" conforms to the American norm of freedom to contract.

At the same time, the ruling seems to undermine the statute.  As a practical matter, an employer asserts many reasons for an adverse personnel action, and an employee's rebuttal answers in kind.  The rebuttal itself is then a viable predicate for termination—"not a team player"—even when the employee alleges, inter alia, an actionable wrong, such as discrimination.  The employee may then complain of discrimination vis-à-vis the precipitating adverse action.  But the employee had that option anyway.  There is nothing to be gained, and everything to be lost, by using the rebuttal statute as a resolution procedure.

Justice Henry
Mass.gov

That was the thrust of the dissent.  "Only the credulous and fools would exercise this right henceforth," Justice Henry wrote of the rebuttal statute.

Meditech admitted that it terminated Meehan solely for writing the rebuttal, something he had a statutory right to do.  Dispute resolution is among the purposes of the statute, Justice Henry reasoned, possibly sparing the Commonwealth an unemployment insurance claim.  At minimum, the personnel record, which might be reviewed by a prospective second employer, is complete with both sides of the story.  Meditech has no apparent, legitimate interest, Justice Henry observed, merely in disallowing rebuttal under the statute.

The dissent concluded:

The result the majority reaches renders the statutory right useless and illusory, and empowers employers to punish employees for doing exactly what the Legislature authorized them to do. Countenancing such a result is wholly inconsistent with a just—or even a sane—employment policy. The majority essentially casts the Legislature as a trickster, creating a trap for unwitting employees that employers now may spring.

The case is Meehan v. Medical Information Technology, Inc., No. 19-P-1412 (Jan. 20, 2021).  Justice William J. Meade wrote the majority opinion, which Chief Justice Green and Justice Vuono joined.  Justice Meade was an appellate attorney in the attorney general's office in the 1990s and deputy chief legal counsel to Governor Mitt Romney in the 20-aughts before going on the bench, and he teaches appellate practice at Suffolk Law School.  

Justice Vickie L. Henry wrote the dissent, which Justice Rubin joined.  Justice Henry was a commercial litigator in intellectual property, product liability, and other matters for more than a decade, and then a senior staff attorney for Gay & Lesbian Advocates & Defenders before her appointment to the bench.  The case was reheard after the initial panel divided 2-1.  The addition of two judges apparently only added a vote for each corner.

Comparative law talks look to Biden Administration, covid-19 aftermath, EU market, juvenile justice

The winter-spring lecture series, "Contemporary Challenges in Global and American Law," from the Faculty of Law and Administration at Jagiellonian University (JU) in Kraków, Poland, and the Columbus School of Law at the Catholic University of America (CUA) in Washington, D.C., is free and already under way.

The series promises an exciting lineup, continuing from six lectures in fall 2020, all of which may be viewed online.  This semester's offerings kicked off last week, January 13, with London-Milan lawyer Vincenzo Senatore talking about covid-19 as force majeure in contract law, and comparing common law and civil law approaches.

One week from today, January 27, Professor Geoffrey P. Watson, director of the Comparative and International Law Institute at CUA, will talk on "International Law and the New Biden Administration."  Free registration is now open.

Stryjniak
Here's the line-up for February and March.  Watch the website for more in April and May.  Free registration is required for contemporaneous participation.

  • February 10 - Katarzyna Stryjniak, "EU and US Budget-Making: Process, Politics, and Policy in a COVID-Challenged World" 
  • February 24 - Heidi Mandanis Schooner, "How Well Did the Post-2008 Financial Crisis Regime Prepare the World for the COVID-19 Pandemic?"
  • March 2 - Cara H. Drinan, "The War on Kids: Progress and the Path Forward on Juvenile Justice"
  • March 24 - Gaspar Kot, "Sustainable Investment – The New Heart of EU Financial Market Regulation"

The lecture series grew out of a summer 2020 pilot program in which I was privileged to participate, and it's been a welcome way, during the pandemic, to connect with colleagues in Europe and take pride in former students.  Now a legal and policy officer with the European Commission, Kasia Stryjniak is a graduate of JU and CUA master's programs.  Gaspar Kot is near completion of the Ph.D. at JU, holds an LL.M. from CUA, coordinates the LL.M. program at JU, and was my co-author on a recent book chapter.

In memoriam: Cassandra M. Langtry, JD class of '23

I'm saddened to share news of the passing of Cassie Langtry, a law student in my fall 2019 Torts I class, on January 15.   

An obituary recounting a full and generous life is posted at the Luzerne, Pennsylvania, funeral home, along with tributes and memories from friends and loved ones, including her law school classmates.  I knew of Cassie's affection for dogs, and the obituary remembers her love for her Comet and Scout.  She also liked reading and kayaking, so our hobbies overlapped quite a bit.  I did not know of her devotion to faith, but I am not surprised to learn that she served with World Challenge in Ecuador and instructed youth at her church in West Harwich, Massachusetts.  

In lieu of flowers or gifts to honor and remember Cassie, donations are sought for the Best Friends Animal Society, an organization dedicated to the protection and rescue of animals.

Cassie passed on the same day as a death in my family, of Gloria Buzi.  Gloria was a generous soul who relished retirement on Maryland's eastern shore.  A great many years of age separated Gloria from 24-year-old Cassie.  The difference might tempt one to a bitterness over lost potential, but I think it rather an occasion to recognize the distinctive gift and ultimately unknowable reverberations of every life.

Tuesday, January 19, 2021

Class labor action fails on appeal, but highlights persistent failure to afford living wage for U.S. workers

Boston, Mass. (from Pixabay by StockSnap, licensed)
Notwithstanding its failure, a class labor action dismissed by the Massachusetts Appeals Court highlights the persistent legal norms that keep U.S. workers under compensated.

Siew-Mey Tam worked as a property manager for Federal Management Co. (FMC) in Boston, managing Mason Place, a 127-unit, subsidized-housing community in the heart of the city.  Dissatisfied with her terms of employment, Tam became the lead plaintiff in a class action accusing FMC of violating wage-and-hour laws.  The class was certified in 2015.

Among the issues in the case was FMC's classification of Tam and others as exempt administrative employees.  A company's ability to exploit so-called "salaried" workers with responsibilities that defy the number of work hours in the week facilitates subversion of already paltry U.S. minimum wages and evasion of overtime pay.  This is another in a genus of "misclassification" problems that form our bleak landscape of employment rights and was part of the back-and-forth tug of regulatory might in the Obama and Trump administrations.

In 2016, the threshold for overtime exemption under Department of Labor regulations pursuant to the Fair Labor Standards Act (FLSA) was $455 per week, or $23,660 per year.  For comparison, the intransigent federal minimum wage is, and has been since 2009, $7.25 per hour, or up to $15,080 per year.  The Massachusetts minimum wage in 2016 was $10 per hour, or up to $20,800 per year.  Having been unable to push a federal minimum-wage hike through Congress, the Obama Administration announced a doubling of the exemption threshold, to be effective December 1, 2016, from $455 per week, to $913 per week, or $47,476 per year, with automatic upward adjustments to follow beginning in 2020.

From the Economic Policy Institute
But that increase never happened.  A Texas judge blocked the regulations in November 2016 (N.Y. Times), and the Trump Administration in 2017 junked the upgrade.  The threshold remained at $455 for three more years, until the Trump Administration promulgated a more modest increase to $684 per week, or $35,568 per year, which took effect in 2020.  While the federal minimum wage remains at $7.25, the Massachusetts minimum wage has crept upward, in 2021 to $14.00 per hour, or up to $29,120, on its way to a living wage.

In the instant case, according to the court, "[i]t was uncontested that Tam worked more than 40 hours per week but generally was not paid overtime. Instead, the dispute was whether the nature of Tam's job meant that she was an exempt administrative employee to whom overtime pay was not due."  FMC maintained that in addition to a base salary in excess of the $455 threshold, Tam's "primary duty include[d] the exercise of discretion and independent judgment with respect to matters of significance," which regulations also require for "administrative" exemption.

Most of the appellate decision in Tam v. FMC concerns a deposition in 2016, in which, it seems from the court's description, the plaintiffs' case self-destructed.  Tam's answers supported the FMC position that she exercised considerable authority over the property.  Moreover, "Tam gave other answers that raised serious concerns about how the case and a related discrimination case against [FMC] were being litigated," pointing to inconsistencies in discovery responses.

"For example," the court observed, "confronted with a factual misstatement in her interrogatory answers filed in the [related] discrimination case, Tam attempted to address the misstatement by explaining that she had signed the answers without actually reading them, because she 'trust[ed her] lawyer.'"  The deposition was especially damaging because Tam was the lead plaintiff for the class.

The Appeals Court affirmed summary judgment and an award of pretrial costs against Tam and a co-plainitff, Raymond.  A collateral action against FMC remains pending.

Included in the affirmance was the dismissal of a separate retaliation claim by Raymond.

A former property manager for FMC, Raymond alleged that she was fired for her wage-and-hour complaints, a retaliation that would violate Massachusetts law.  The courts ruled that Raymond's claim came up short because she did not sufficiently notify FMC of the legal basis of her discontent.  An employee need not necessarily invoke a specific statute, the Appeals Court held, but the court characterized Raymond's objections as closer to "abstract grumblings" (quoting precedent) than to a reasonably understandable assertion of statutory rights.  That's a cautionary tale for low-wage employees who might not understand the legal nuances of classification and take as true an employer's declaration of what the law is.

The real shame of the case is what it reveals about the deplorable state of U.S. labor rights.  According to MIT, a living wage for a Boston worker is $670 per week, or $34,819 per year.  That's well more than the exemption threshold before 2020 and just about equivalent to the threshold now.  An exempt employee can be expected to work more than 40 hours per week, so can't hold down a second job—even assuming that it would be civilized to expect that, which it's not.

So the present regime sets an expectation that a worker earning a minimum living wage will work longer than a 40-hour week.  One might expect that administrative employees working more than 40 hours per week would do a little better than a living wage.  Meanwhile, hourly workers still fall far short.  And the per annum numbers I've used here assume 2,080 working hours per year: no break.  Federal law requires no paid vacation time.

The FLSA has been around since 1938.  It's at least arguable that the proceeds of industrialization and technology should be that people don't have to work as hard to survive.  Even by the time the FLSA turns 100, will employees working full time in the shining city on a hill be able to meet basic needs?

The case is Tam v. Federal Management Co., No. 19-P-1332 (Mass. App. Ct. Jan. 6, 2021).  Justice James R. Milkey authored the opinion of a unanimous panel that also comprised Justices Blake and Henry.