Showing posts with label labor. Show all posts
Showing posts with label labor. Show all posts

Saturday, September 2, 2023

Saturday, April 15, 2023

Students join labor demands for living wage at RISD

(UPDATE, April 18: Labor and RISD reached a tentative agreement, Wazlavek tweeted last night.)

The Rhode Island School of Design—famous alumni include Seth MacFarlane, BFA '95 (Family Guy, The Orville)—has lately been embroiled in a labor dispute.

I saw, and heard, protestors yesterday morning when I drove to the nearby Providence Amtrak station. They made plenty of noise, yet in an artsy, celebratory way. You really don't want to mess with creative types. With faculty support, students are demonstrating alongside custodians.

An attorney-alum of my torts and comparative law classes is working on the matter from the Teamsters side. Aaron Wazlavek (SSRN) has been on site this week.  (Video NSFW: adult language. That's just how labor rolls.)

According to arts independent Hyperallergic, "[c]urrently, the average wage of a RISD custodian, groundskeeper, or mover is $16.74 per hour. The lowest wage is $15.30. Teamsters Local 251 has fought for a $20 minimum wage ...."

The living wage for one adult with no children in Providence County, Rhode Island, is $17.42/hr., according to the MIT calculator.  The minimum wage in Rhode Island is $13/hr.

In March, New York University law students made headlines demanding a choice between credit hours and an hourly wage for work on law review. 

The New York students have a point. I've long been critical of unpaid internships. Nowadays, U.S. law schools require free labor in many guises. Call it "field placement," "externship," "pro bono"—even new lawyers are expected to "volunteer" before they can get paying jobs. It's all subversion of the simple principle that one should be paid for one's work. Corporations and employers delight in pushing American work-life balance in the wrong direction. The legal education system and accrediting American Bar Association are complicit.

The set rate for student labor—when we pay in real money; I just hired a research assistant for the fall—at UMass Law in south-coast Massachusetts is $15/hr. The living wage for one adult with no children in Bristol County, Massachusetts, is $17.88, according to the MIT calculator.

Latest reports suggest that RISD and labor will find a middle ground between $15 and $20. I hope it's at least halfway.

Tuesday, January 24, 2023

Lawyers be a-ballin'?

Canadian lawyers protest legal aid de-funding in 2014
(Sally T. Buck via Flickr CC BY-NC-ND 2.0).
My wife was a legal services attorney after law school.
Her salary could not have paid both law school debt
and even a modest mortgage.

A student loan specialist giving advice on The Takeaway this morning said, "Don't live like a lawyer when you're a student, and you won't live like a student when you're a lawyer."

Betsy Mayotte, founder and president of The Institute of Student Loan Advisors, was repeating an aphorism, she said, as a caution against students borrowing more than they need for higher education. Don't count on any program for loan forgiveness, she warned; rather, assume that you'll have to pay back every dime.*

That's sound, conservative economic advice, especially for an America stretched thin on credit card debt and short on long-term savings. But for anything, I could not work out how the aphorism embodied the message.

What does it mean to "live like a lawyer"?

Mayotte had just cautioned students that they should take the time, however boring the task sounds, to read the whole of their promissory notes. The notes well explain what borrowers are in for, she advised, and "no one told me that" will not later be an excuse to default on debt.

Also good advice. But doesn't living like a lawyer mean being supremely attentive to the fine print and acting conservatively in anticipation of adverse circumstances?

In her informative and insightful book, How to Be Sort of Happy in Law School, Professor Kathryne M. Young related research that successful lawyers are more often natural pessimists, marking a contrast with the successful optimists who have the lead in the other professions, clergy and medicine. That's because a lawyer's job is to prepare for the worst, while clergy and doctors are busy instead coaxing their clients toward a joyful salvation of one kind or another.

Did the aphorism mean to be an optimist when a student, so you don't have to be a student when you're a pessimist?  What does that even mean?

You, dear reader, are no doubt quicker on the draw than I, so you've probably worked it out. It dawned on me an hour or so later:

Don't live like a baller when you're poor, or you'll be poor when you're supposed to be ballin'.

The problem is that "lawyer" doesn't mean rich to me. 

I'm a lawyer. Not rich. My wife's a lawyer. Also not rich. I checked.

The vast majority of my former students work in public service jobs, if they're in JD-required positions at all. And even the few in private practice: not rich. Okay, I can think of one. But I think he was rich already.

Don't get me wrong. We're not struggling. Two JDs put our household income in the 90-something percentiles, according to the DQYDJ calculator, with me in the 90s as an individual and my wife, who has a master's degree, as well as her law degree, in the 70s. 

But income is only one measure of wealth, and, I daresay, not the most important. We both went into serious debt to get those JDs. Our home is mortgaged. We had not paid off our graduate education by the time our only child went to university. And we could not afford to get her through four years without her going into debt, too. 

Neither of us started off loaded. We still buy our clothes at Goodwill and Savers. Habits die hard. I just threw away my wife's socks with holes in them while she was out of the house. She won't do it. But I think she deserves better.

When I left law practice in 1996, I was making $50k, which is about $95k adjusted for inflation. I left that for my first job in academics, where I made $35k—$15k less than the IT guy. "Supply and demand," the dean said.

Now I make more. But after advancing in academics for 25 years, I still make less than the average lawyer in the mid-Atlantic, where I practiced, and just a little more than the nationwide average starting salary for a first-year associate.

The takeaway is that I don't associate being a lawyer with being rich. And it's alarming if people are going to law school with that expectation, or if that's how the public sees lawyers. "Kill all the lawyers" was the suggestion of a butcher.

I just finished some physical therapy for an injured shoulder. The bill for that, to my insurer, was $355 per hour. I saw a podiatry specialist recently. That was billed at $122 for what I think was scheduled as a 15-minute appointment, though it took less than 10.  We'll call it $488 per hour.  I like both those providers, but neither is a superstar gracing the cover of Physicians Weekly.

A very gross number, but the average U.S. lawyer's billable hour now runs about $300. The lawyer has more investment in education than the physical therapist, if a bit less than the doctor. The lawyer is a bargain. Clergy is a better bargain, but that's their thing.

Why isn't the saying, "Don't live like a doctor when you're a student, and you won't live like a student when you're a doctor"?

Well, of course, not everyone in healthcare is rich, either.  My wife had an ER visit and hospital stay, no procedures, last summer that was billed at about $13,000 for two days. At the same time, one of my nieces and one of my brothers work as nurses in hospitals; neither of them is making bank. Where's the money going?

I don't know what the right graduate school investment is to get rich. I didn't make it. Maybe whatever gets you to be a healthcare CEO. Be the owner of the hospital, not a provider in it.

Law and medicine can open the door to opportunity, to improve your lot if you're not living comfortably. I'm not knocking that. But no one should go into educational debt without a plan at least to do better than status quo. And plans should be based on realistic expectations.

The aphorism doesn't fit. Worse, it's dangerously misleading. We've got a problem in America with access to education and upward socioeconomic mobility. Simplifying the narrative to suggest that a professional degree will necessarily afford return on investment is not part of the solution.

* I've been reading about the challenges against the Biden student loan forgiveness order. You can follow the legal story at Reason. I'd love to see the plan go through; my daughter would benefit. I'm sorry to say, though, I think the challengers are right: the President exceeded his authority. The unfortunate political outcome, I predict, is that the Administration will be blamed for breaking a promise, and the Supreme Court will be blamed for enforcing the law, both thereby suffering unwarranted further damage to already embattled credibility. Meanwhile, Congress, which in fact held the key to untie the President's hands, but can't ween itself off addiction to money, and especially Democrats, who passed on a real opportunity to make a difference for access to education and socioeconomic opportunity, will escape accountability.

With regard to the title of this post, you can read more about the circumfix a-/-ing at Wiktionary. Read more about "the habitual be" at Slate.

I've been away from the blog for a while owing to an exhausting, if variably rewarding and challenging December and January. I'm back in the saddle now and look forward to catching up on some matters I'm eager to share. Thank you for your patience, and stay tuned!

Wednesday, October 12, 2022

'Behind Bars': Petroff article explains how secrecy shields private prison labor from public scrutiny

Alyssa Petroff, a judicial law clerk at the Supreme Judicial Court of Maine, has published Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool in the new volume 4, number 2, of The Journal of Civic Information.

In a foreword, Journal Editor David Cuillier, professor of journalism at the University of Arizona, wrote,

Alyssa Petroff educated me on the exploitative private for-profit prison complex in my home state of Arizona—shrouded in secrecy because of a public records law interpreted in favor of corporations. I was astounded by her research findings.... She has a great career ahead of her, based on the eye-popping revelations in Behind Bars....

An Arizona native and 2022 law school graduate, Petroff started work on the article with a paper in my Freedom of Information Law class. Her finished work won the 2021-2022 student writing competition of The Journal of Civic Information, an honor co-sponsored by the Brechner Center for Freedom of Information and accompanied by a $2,000 cash prize.

Here is the abstract:

Prisons run by private corporations in the United States have at hand a pool of individuals who are, by law, required to work while they are incarcerated. This article examines the secrecy behind the use of inmate labor, including on-the-job injuries  sustained by prisoners, focusing on the state of Arizona as a case study. Ultimately, the  article recommends that states create oversight boards of private prison systems or allow private prison records to be accessible through already existing public records laws.

Attorney Petroff was a student also in my Comparative Law class. So I benefited immensely and from her presence and participation, ceaselessly inquisitive and gracious, in law school. I share Professor Cuillier's enthusiasm for her budding career as she cuts her teeth in judicial writing at the Maine high court.

The article, again, is Alyssa Petroff, Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool, 4:2 J. Civic Info. 1 (2022).

Monday, September 26, 2022

Governor's proposed pay hikes evince typical bureaucratic ignorance of how working people earn

Governor Dan McKee
(Kenneth C. Zirkel CC BY-SA 4.0 via Wikimedia)
Rhode Island Governor Dan McKee's proposal for huge increases to state administrators' pay, on the scale of revising $135,000 upward to $190,000, shows ignorance of how ordinary working people earn.

Our present condition of oppressive inflation has us all thinking a lot about pay. For ordinary working people in America, the only way to avoid an effective pay reduction over time is to change jobs. (Hat tip at my wife for putting words to that observation.) Employers demand "team" or "family" loyalty, 24/7 availability, and uncompensated overtime. But the loyal employee winds up being underpaid for overworking.

Raises don't keep up with inflation, if there are raises at all. In my own compulsorily union job, 2% raises are the contract standard. That rate tracks inflation for about the last 10 years, on average, but not for the preceding 10 years, when the union negotiated the rate, nor for the present year. The union admonishes that the university would give zero were it not for, of course, the union, so workers should be grateful for losing less badly. Then when the pandemic hit, the union asked for bigger pay cuts than the university proposed. So the union lost all credibility with me.

The "family" loyalty employers demand works only one way. At the first sign of hardship, jobs are cut; people in the lower ranks are disposable. Business cries out for relief form taxpayers, even as bottom lines bulge. Profiteering, not necessity, is pushing the present inflation, and there is no will in Washington for protection against price gouging. No wonder some workers are at last wising up to "quiet quitting," which is not quitting at all.

I make OK money, less than market rate for what I do, and less than I was promised since my employer, with union assent, reneged on an agreement, but a lot more than most Rhode Islanders. And I think I'm pretty good at what I do. You can't help but learn something with 25 years' experience.

Yet if I left my job, my employer would be pleased to replace me with someone lacking experience and paid two-thirds or less. Indeed, the norm in legal academia, in step with the private marketplace, is to prefer a 20-something lawyer out of a clerkship over a lateral candidate. At that, there would be young people lined up for my job, eager to be part of the "family," and understandably so in a market that has long forgotten what it means to negotiate terms of employment. I cannot move laterally even if I take the pay cut, because it's not just the discount price employers are after. They want a newly beholden member of the "family."

That's the reality for most American workers: employers expecting commitment and performance akin to indentured servitude from people who work cheap because they know they're easily replaceable for less.

So when I see pay raises of the kind that Governor McKee is proposing, supposedly for the purpose of recruitment and retention, I am outraged. In this New England market, there are plenty of bright, talented people right out of university, law and graduate school, some of them my former students, who are eager to test their skills in public leadership. The present $135,000 pay, double the average state salary, would be a dream offer.

That's not to say, of course, that I wouldn't rather see the market treat people fairly and reward talent and experience. I would rather that everyone in the workforce had pension security, not just public sector workers regardless of merit, willing to commit to one job and place for 20 years; that everyone had access to high-quality healthcare, not just people who let an employer walk all over them because they're afraid of dying from a recurred cancer if they change insurers; and that everyone would have the opportunity to earn a living wage in fewer than 40 hours per week.

But that's not our world. Well, not our country. So in the meantime, I don't care to see public-sector leaders privileged by terms of employment they are unable or unwilling to establish for the rest of us.

McKee's Republican opponent accused him of buying votes. I'm not sure that's true. There aren't enough state department heads to turn an election, and I doubt they have that much sway behind the curtain over the voters who work for them. 

I think it more likely that McKee has calculated that in the present political climate, his reelection as a Rhode Island Democrat is effectively a done deal. So he has the political capital to spend to shore up loyalty in an executive branch that he claimed this term by succession rather than election. (Independents such as me are barred from primary voting in Rhode Island, so I've had no say yet.)

Either way, raises for already well compensated state leaders will be an insult to taxpayers.

Thursday, September 1, 2022

Shoe on other foot as US claims sovereign immunity in foreign court for firing Malaysian embassy worker

The U.S. Embassy in KL commemorates flight MH17 in 2014.
(Embassy photo, public domain, via Flickr)
Malaysian courts have been wrestling with the big bear of foreign sovereign immunity in an ursa minor case arising from the dismissal of a security guard from the U.S. Embassy in Kuala Lumpur.

As a torts and comparative law teacher, I'm interested in how courts manage foreign sovereign immunity. But most of the cases I read are about foreign-state respondents in U.S. courts. I suppose the inverse, the United States as respondent in a foreign court, happens often. But it doesn't often make my newsfeed.

Well, this story did. The shoe is on the other foot with the United States seeking to evade the hearing of an employment grievance in Malaysian courts.

Consistently with international norms, in the United States, the Foreign Sovereign Immunities Act (FSIA) (on this blog) generally codifies sovereign immunity for foreign states in U.S. courts. But an exception pertains for "commercial activity." 

The commercial exception, also consistent with international norms, only makes sense. When a foreign country is acting like any other commercial actor, say, buying toilet paper for the mission restroom, it should not be able to claim sovereign immunity to override its obligation to pay for the toilet paper (contract), nor to escape liability for its fraud in the transaction (tort). Sovereign immunity is rather reserved for when a state acts as a state, doing things only states can do, such as signing treaties and, however unfortunately, waging war—usually.

The exception is easier understood in the abstract than in application. In a case bouncing around the Second Circuit, and reaching the U.S. Supreme Court in 2018 on a related but different question, Chinese vitamin makers claim immunity from U.S. antitrust law. The respondent makers say that they are agents of the Chinese state insofar as they are compelled by Chinese economic regulations to fix prices. U.S. competitors see the cut-rate pricing as none other than anti-competitive commercial activity. The question arises under trade treaty, but the problem is analogous to the FSIA distinction.

Also regarding China, the commercial activity exception was one of the ways that state lawsuits against the People's Republic over the coronavirus pandemic tried to thread the needle on sovereign immunity. In the lawsuit filed in 2020 by the State of Missouri against the PRC filed in 2020, the Missouri Attorney General characterized the Chinese lab in Wuhan as a commercial healthcare enterprise. The district court disagreed in July, and the AG is appealing.

In the Malaysian case, according to the allegations, the U.S. Embassy gave no reason when it terminated a security guard in 2008 after about a decade's service. The security guard probably would not be owed any explanation under U.S. law. But the Malaysian Industrial Relations Act is not so permissive, authorizing complaints to the labor authority upon dismissal "without just cause or excuse."

The opinion of the Malaysian Court of Appeal in the case hints at some bad blood in the workplace and a bad taste left in the mouth of the dismissed guard: "He said he had been victimised by another staff named Rama who had tried to tarnish his good record as he had raised the matter of unreasonable management of the security post.... He said he could not believe that the US Embassy that is recognised the world over as the champion of human rights could have done this to a security guard like him."

Inexplicably, "a long languishing silence lasting some 10 years" followed the administrative complaint, the Court of Appeal observed. "Nobody involved and interested in this case heard anything from anyone. It is always difficult to interpret silence. That silence was broken with a letter from the DGIR [labor authority] calling for a conciliation meeting [in] September 2018.... There was no settlement reached.

"Unbeknown to the workman, the Embassy had [in] March 2019 sent a representation to the DGIR arguing that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court." The United States thereafter succeeded in having the case removed to the Malaysian high court, a general-jurisdiction trial court.

The high court dismissed the case on grounds of U.S. foreign sovereign immunity. The Court of Appeal reversed, holding that the case should not have been removed. The Court of Appeal remanded to the Industrial Court, a specialized labor court, to take evidence on the immunity question. The Malaysian Federal Court recently affirmed the remand, lawyers of Gan Partnership in Kuala Lumpur have reported (Lexology subscription).

Like the FSIA, Malaysian law on foreign sovereign immunity distinguishes commercial activity, jure gestionis, from state action, jure imperii. The dismissed guard argues that his was a simple employment contract, so the United States was acting in a commercial capacity and is not entitled to sovereign immunity. The United States argues that the security of its embassy is a diplomatic matter entitled to the exercise of sovereign discretion.

The case in the Court of Appeal was Letchimanan v. United States (May 18, 2021). Gan Khong Aik and Lee (Ashley) Sze Ching reported the Federal Court affirmance to the International Law Section of the American Bar Association for Lexology on August 30 (subscription). Khong Aik and Sze Ching wrote about the Court of Appeal decision, United States v. Menteri Sumber Manusia (Minister of Human Resources) Malaysia, in July 2021 (Lexology subscription), and with Foo Yuen Wah, they wrote about the high court decision in August 2020 (Lexology subscription).

Tuesday, February 1, 2022

As America, France share Enlightenment roots, why have worker rights so diverged? Or have they?

Thomas D. Aaron Wazlavek, Esq. has published an article in comparative labor law: The Pond Separates Cultures but Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The article appears in the Florida Journal of International Law at the University of Florida Levin College of Law.  Here is the abstract:

The differences and similarities between the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor following the “Yellow Vest” movement in 2018 demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This Article analyzes the social and legal contexts in both countries that demonstrate that the superimposition of these values through law is a continuing modern western trend. The key difference is that while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers as compared with the American model which exists as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this Article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms. This Article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

An attorney living and working in Rhode Island, Wazlavek (blog, LinkedIn, Twitter) presently serves as a contract coordinator for Teamsters Local 251.  It's not uncommon to see him on a Rhode Island street corner alongside sign-wielding workers.  He had already a wealth of experience in the labor movement before he went to law school.  He taught me a great deal about organized labor—its value when it works the way it's supposed to—and I was able to contribute torts and comparatism to his impressive repertoire.

The Pond started as a paper in Comparative Law, co-taught by an embedded librarian, the esteemed Dean Peltz-Steele, and me and tracks one of many remarkable parallels in the cultural evolution of the United States and the French Republic.  Just yesterday I read Rachel Donadio's fascinating treatment of secularism, or laïcité, in The Atlantic.  Observing the shared roots of the French principle with American anti-establishment doctrine, Donadio observed:

The histories of few countries are as deeply intertwined as those of France and the United States. Both nations are products of the Enlightenment, and each sees itself as a beacon among nations. Both embody a clear separation of Church and state. In the United States, the separation is defined by the establishment clause of the First Amendment, which prohibits the government from making any law "respecting an establishment of religion" or obstructing the free exercise of religion. The First Amendment was inspired by the earlier Virginia Statute of Religious Freedom, adopted in 1786, the work of Thomas Jefferson. Jefferson was ambassador to France when the French Revolution began, and the Marquis de Lafayette consulted him when drafting the revolutionary Declaration of the Rights of Man and Citizen, passed in 1789. Article 10 of that document states, "No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order."

A shared legacy on labor regulation might not be traced so easily to the 18th century, but I would contend that American and French thinking about work and life is plenty in common.  Wazlavek maps that common cultural territory, and the article examines the social and economic forces that have prompted divergence, largely to the hazard of the American worker, and yet some recent convergence that prompted the Yellow Vest movement.

The article is Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment, 33 Fla. J. Int'l L. 75 (2021).

[UPDATE, Feb. 3, 2022:] Only two days after posting this item, I happened upon this compelling article as well: Stéphanie Hennette-Vauchez, Religious Neutrality, Laïcité and Colorblindness: A Comparative Analysis, 42 Cardozo L. Rev. 539 (2021).

Wednesday, January 26, 2022

Employer may not fire for personnel rebuttal, high court holds, even though statute provides no remedy

Pixy.org CC BY-NC-ND 4.0
Reversing a problematic and divided intermediate appellate court decision, the Massachusetts Supreme Judicial Court held in December that an at-will, private-sector employee may not be terminated for exercising a statutory right to rebut negative information in the employee's personnel file.

I wrote here at The Savory Tort about the intermediate appellate court decision in January 2021:

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.

The Appeals Court had struggled with the case, deciding it 3-2 on rehearing after an initial 2-1 ruling against Meehan.  I commented then: The outcome was not inconsistent with American courts' general inhospitality to public policy-based claims of wrongful termination.  At the same time, the outcome was discordant with Massachusetts's more liberal disposition on wrongful termination, especially considering the civil rights-protective vein of the rebuttal statute.

The Supreme Judicial Court (SJC) recognized that public-policy constraints on at-will employment termination must be narrowly construed.  But constraint 

has been recognized "for asserting a legally guaranteed right (e.g., filing a worker's compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)" [SJC's added emphasis].... In addition to these three categories, this court subsequently created a fourth category to protect those "performing important public deeds, even though the law does not absolutely require the performance of such a deed." .... Such deeds include, for example, cooperating with an ongoing criminal investigation.

The rebuttal statute fell in the first category, the SJC held.  The trial court and Appeals Court had improperly second-guessed the importance of the statutory right and discounted it for its relation primarily to internal private affairs.  Those considerations bear on the fourth category, the court explained.  The legislative pronouncement is conclusive in the first category.

Even so, the court opined, the right of rebuttal is important, because it facilitates compliance with other workplace laws, "such as workplace safety, the timely payment of wages, and the prevention of discrimination, and nonemployment-related activity, such as those governing the environment and the economy."

While the lower courts were put off by the legislature's seemingly exclusive express remedy of a fine for non-compliance, the SJC regarded the omission of a retaliation remedy as mere failure to anticipate.  "Indeed," the court opined, retaliatory termination "would appear to be sticking a finger in the eye of the Legislature.... We conclude that the Legislature would not have permitted such a flouting of its authority, had it contemplated the possibility."

An employee claiming wrongful termination still has a hard road to recovery.  The court emphasized that causation, connecting rebuttal and termination, may raise a question of fact in such cases, and here on remand.  Moreover, an employee can overstep and forfeit common law protection.  The statute "does not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal."

The case is Meehan v. Medical Information Technology, Inc., No. SJC-13117 (Mass. Dec. 17, 2021).  Justice Scott Kafker wrote the opinion of the unanimous court.

Tuesday, September 28, 2021

Student comment calls on police unions to do their part for accountability reform, revelation of truth

Michelle M.K. Hatfield, an alum of my Torts I-II classes, has published a comment, Can Police Unions Help Change American Policing?  

This comment nicely links the need for police accountability with the right to truth, a theme better known in post-apartheid South Africa than in American policing, and suggests that police unions could do more to stimulate socially constructive reform.  Here is the abstract:

Police unions are part of the problem in American policing. Could police unions also be part of the solution? This Comment begins by putting into practice the dialectic we must achieve at a societal level by detailing the ways in which police and Black Americans have been positioned to be in conflict from the seventeenth century to the present, and by discussing the formation of police unions. American society needs truth-telling about the history and present context that drives police officers into deadly conflict with Black Americans to heal, trust, and effectuate a more perfect system for public safety. This Comment wrestles with the need to understand several truths at once: that police organized into unions in part to protect the rank-and-file from managerial abuse; that the American policing system is in many ways designed and implemented against Black Americans; that police unions organized in the Civil Rights Era to protect police officers from discipline for following orders; and that deep, structural change should include police unions. Less fundamental changes that leave in place the core of American policing, without examining its racist foundations and incentives toward brutality and lethal force, will not serve to bring about lasting reconciliation. This Comment reviews several ways to improve the management of police departments put forth by labor and policing scholars and suggests that the promise of such reforms could motivate participation in a truth process. The conversation about policing reform in the United States has expanded and deepened tremendously in the past year, and it continues to evolve and take on new dimensions. This Comment urges policymakers to create a truth process as part of police reform and suggests that the process be implemented via the police unions because the voices of police organizations that represent rank-and-file officers are a critical ingredient for meaningful change.

Needless to say, police accountability has become a recurring theme and point of student interest in my courses, including Torts and Freedom of Information Law.  Ms. Hatfield gave me and my law-librarian-extraordinaire spouse Misty Peltz-Steele the privilege of feeding back on this article prior to submission for publication, but that's me riding coattails.  Ms. Hatfield prepared this superb paper principally upon her own impressive initiative and in ample fulfillment of the paper requirement of a popular course in labor law taught by my colleague in public policy, Professor Mark Paige.

The comment appears in the UCLA Criminal Justice Law Review, 2021:211.

Wednesday, August 11, 2021

'What is truth?': 8th Circuit wrangles over ag gag

The Eighth Circuit reached mixed outcomes yesterday in First Amendment review of the Iowa "ag gag" law, upholding a criminal prohibition on entering agricultural production facilities under false pretenses.

Sausage packing in Chicago, 1893
"Ag gag" refers to laws designed to deter undercover investigative reporting on the agricultural industry, especially by criminalization. On the one side, journalists, public health advocates, and animal rights activists point to a tradition of undercover reporting dating to the Upton Sinclair muckraking classic The Jungle (1906), which exposed labor exploitation in the meat industry.

Journalist and professor Brooke Kroeger—who filed an amicus with the Eighth Circuit in the instant case—in her book Undercover Reporting: The Truth About Deception (2012), actually traces the tradition farther back, to reporting on slavery and human trafficking in the 19th century.  For a more recent entry in the genre, check out Michael Holtz's fascinating pandemic-era report, in last month's Atlantic, from inside a Kansas slaughterhouse.

On the other side, private business and advocates for private property rights point to the simple proposition that falsehood is impermissible in commerce and should not be permitted to facilitate trespass and undermine (markedly unidirectional) employee loyalty.

Insofar as the problem boils down to the criminalization of falsity, a fuzziness surfaces in First Amendment fundamentals.  The U.S. Supreme Court has long recited competing mantras on the permissibility of state regulation of falsity.  For example, commercial speech doctrine cuts a wide berth for the regulation of false and misleading expression, allowing free speech and consumer protection law to coexist upon the premise that falsity has no social value.  At the same time, First Amendment doctrine in areas such as defamation law, animated by the Miltonian-Millian philosophy of liberty, tells us that a free marketplace of ideas must allow for the expression of falsity so that truth can be tested and revealed.

The Court tackled this dichotomy in United States v. Alvarez in 2012, striking down part of the Stolen Valor Act of 2005, which criminalized misrepresentation of military honors.  But the Court fractured on rationale.  The plurality applied First Amendment strict scrutiny, and a concurrence would have applied intermediate scrutiny.  No one challenged the negligible scrutiny that abides criminalization of falsity in perjury, for example.  The distinction that upped the ante in Alvarez was the statute's "sweeping, quite unprecedented reach," regardless of context, regardless of motive.  Whereas a perjury prohibition plainly protects the integrity of the judicial process, the Stolen Valor Act pertained "to a false statement made at any time, in any place, to any person," for any reason.

And it was on that distinction that the Eighth Circuit perceived a difference in two provisions of the Iowa ag gag law.  One provision the court, affirming the district court, struck down, concerning the criminalization of false statements on an employment application.  The Iowa legislature, like Congress in Alvarez, overreached.

The proscription of the Employment Provision does not require that false statements made as part of an employment application be material to the employment decision.... [The statute] allows for prosecution of those who make false statements that are not capable of influencing an offer of employment. Plausible scenarios abound: the applicant falsely professes to maintain a wardrobe like the interviewer’s, exaggerates her exercise routine, or inflates his past attendance at the hometown football stadium.

The court reached a different conclusion on the provision prohibiting access to agricultural production facilities upon false pretenses.  That implication of falsity was sufficiently linked to "a legally cognizable harm—namely, trespass to private property"—that the court placed the provision beyond First Amendment review, distinguishing the ag gag law from the Stolen Valor Act.  "The better rule in light of Alvarez is that intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment."

The opinion has a bit of candy for tortheads, too, in reasoning that even trespass warranting only nominal damages is "a legally cognizable harm."  "Trespass is an ancient cause of action that is long recognized in this country. See United States v. Jones [U.S. 2012]; 3 William Blackstone, Commentaries  ... ," the court began.

[The district] court’s own citation to Black’s Law Dictionary acknowledged that nominal damages are "awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated." Damages, Black’s Law Dictionary (10th ed. 2014) (emphasis added). Nominal damages are not "purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff." Uzuegbunam v. Preczewski [U.S. 2021]. They are, rather, damages paid to a plaintiff that provide redress for an injury. Id.... Even without physical damage to property arising from a trespass, these damages may compensate a property owner for a diminution of privacy and a violation of the right to exclude—legally cognizable harms. See ALDF v. Wasden ... (9th Cir. 2018) (Bea, J., dissenting in part and concurring in part); see also Cedar Point Nursery v. Hassid [U.S. 2021] ("The right to exclude is one of the most treasured rights of property ownership.")....

The complainant in the Iowa case is the Animal Legal Defense Fund (ALDF), which has litigated and is litigating ag gag challenges throughout the country.  (I'm faculty adviser for the Student Animal Legal Defense Fund at UMass Law.)

The first time I testified in a legislative hearing, in my first year of teaching in 1998, I spoke, at the invitation of the Society of Professional Journalists, against an Arkansas ag gag bill.  The bill died in committee.  In the 1990s, an earlier generation of ag gag laws targeted speech about Big Ag as a form of civil or criminal defamation.  That approach was especially vulnerable to First Amendment challenge.

Food Lion Kings Mountain, N.C.
(Mike Kalasnik CC BY-SA 2.0)
At the same time, in the 1990s, the Food Lion case against ABC News, over undercover reporting on food mishandling, was playing out in the courts.  By decade's end, Food Lion prevailed against the ABC defendants for trespass and breach of the employee duty of loyalty, but not for defamation or fraud.  Big Ag learned to reframe ag gag to focus on conduct, rather than speech.  The next generation of ag gag laws aimed to protect private property against trespass, feigning ignorance of First Amendment implications.

Presently, the ALDF is fighting a broad Arkansas ag gag law, in the property-protective vein, enacted in 2017.  On Monday, the day before the Iowa opinion was announced, the Eighth Circuit revived and remanded the ALDF suit in Arkansas.  The district court had dismissed upon an erroneous understanding of First Amendment standing.  The Arkansas law is a model of special interest legislation enacted at the behest of Big Ag power-player Vaught Farms.

The Eighth Circuit opinions in both the Iowa case and the Arkansas case were authored by Judge Steven Colloton, an Iowan.  Judge Colloton had different co-panelists in each case, and both panels generated a dissent.  In the Iowa case, Judge Raymond Gruender, a Missourian reportedly short-listed by President Trump for the Supreme Court, would have upheld the Iowa law in both provisions.  In the Arkansas case, Judge Bobby Shepherd, an Arkansan criticized for upholding Missouri anti-abortion laws to set up a challenge to Roe v. Wade, tracked the erroneous reasoning of the district court on standing.

I find worth quoting a short concurrence in the Iowa case.  Judge L. Steven Grasz, a Nebraskan, hints at the relationship between ag gag and the bigger First Amendment picture of our contemporary misinformation crisis.

This nation was founded on the concept of objective truth ("We hold these truths to be self-evident...."). And some of our nation's oldest institutions were founded as instrumentalities of the search for truth (Veritas). The quest for truth has not, of course, ended; nor has the clash between the free flow of ideas and the desire to punish untruthful speech that is perceived as harmful. The law has long provided for legal consequences for false speech constituting fraud, perjury, and defamation. The present case, however, presents a new category of deceit which the State of Iowa seeks to penalize. Some see it as investigative journalism. Others see it as lying to further an agenda at the expense of private property rights. In either sense, its punishment presents a legal dilemma between protecting property and protecting speech. While some have always questioned whether truth can be known ("What is truth?"), our task is not to answer that question but simply to determine whether the constitution allows the government to criminally punish falsity in the specific context of the statute before us.

I join the court's opinion in full because I believe it is consistent with current law, as best we can determine it from limited and sometimes hazy precedent. Still, I do so hesitantly as to the Access Provision. The court's opinion today represents the first time any circuit court has upheld such a provision. At a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being "cancelled" for holding "incorrect" views, it concerns me to see a new category of speech which the government can punish through criminal prosecution. Ultimately, the Supreme Court will have to determine whether such laws can be sustained, or whether they infringe on the "breathing room" necessary to effectuate the promise of the First Amendment.

Going forward, a key question will be whether access-by-deceit statutes will be applied to punish speech that has instrumental value or which is tied to political or ideological messages....

In general, public interest constitutional litigation against state ag gag has fared very, very well in the courts.  So the Eighth Circuit distinction on the Iowa access provision bucks the trend, which is not to say the court was mistaken.  To my mind, most of the victories against ag gag, as in the Iowa case, have derived from legislative overreach.  As I told the Arkansas committee in 1998, it is possible to draft an "ag gag" bill that would pass constitutional muster.  But such a statute would substantially duplicate the existing tort law of trespass, fraud, and product disparagement.  And while common law tort accommodates constitutional norms by design, rigid statutes are more prone to invite expensive legal challenge in the application.

The real problem, politically for Big Ag, is that it wants more than tort law gives, or than constitutional law permits.  And for public interest advocates, the problem ultimately is one of policy, not constitutional law.  Legislators must be motivated to choose accountability over campaign donations, and the public must be motivated to care about labor conditions and animal welfare, even when opacity precludes investigation.

These cases also resonate in the vein of transparency and access in the private sector.  As I have written previously, contemporary social and economic woes increasingly arise from private-sector abuse of public trust, and our cramped notion of state action is critically diminishing democratic accountability.

The Iowa case is Animal Legal Defense Fund v. Reynolds, No. 19-1364 (8th Cir. Aug. 10, 2021).  The Arkansas case is Animal Legal Defense Fund v. Vaught, No. 20-1538 (8th Cir. Aug. 9, 2021).

Wednesday, February 3, 2021

Court: Employer has no free speech right to republish worker healthcare data that state provides conditionally

Confidential (Nick Youngson Alpha Stock Images CC BY-SA 3.0)
An employer has no First Amendment right to republish the identity of workers who relied on publicly subsidized healthcare when the state provides the names conditionally, for restricted use, the Massachusetts Appeals Court held yesterday.

A state program imposed assessments on employers whose employees relied on publicly subsidized healthcare.  The state offered to tell the employer which employees triggered assessment, so that the employer could review, and if appropriate challenge, the assessment. But the names came with strings attached: employers were required to promise that they will use the names in the administrative process only and not republish them.

Emerald Home Care, Inc., challenged the assessment program and conditional disclosures as violative of procedural due process and the First Amendment.

Affirming the Superior Court, the Appeals Court rejected both arguments.  As to due process, the state provided employers ample notice and opportunity to be heard in resisting the assessments.  As to the First Amendment, the state may attach conditions to access to confidential information.

In the First Amendment analysis, the court cited two U.S. Supreme Court oldies but goodies: LAPD v. United Reporting (1999) and Seattle Times v. Rhinehart (1984).  In LAPD, the Court allowed a statute to condition access to criminal histories on non-commercial use.  In Seattle Times, the Court allowed a protective order on discovery disclosures in a defamation-and-privacy case in which a newspaper was the defendant.

Justice Desmond
The Appeals Court applied intermediate scrutiny, drawn from Seattle Times.  The court reasoned that confidentiality in healthcare insurance information is an important state interest, and the restrictions on disclosure were closely tailored to the purpose of maintaining confidentiality while allowing the employer limited access for the purpose of administrative review.

The case is not remarkable for its holding, but it marks an ongoing tension between U.S. and foreign law over free speech, privacy, and data protection.  In the United States, the First Amendment often is a wrench in the works of government efforts to regulate information downstream from its disclosure to a third party.  Legal systems elsewhere in the world are more comfortable with the notion that a person's privacy rights may tag along with information in its downstream transfer from hand to hand, outweighing the free speech right to republish.

I noted some years ago that in some areas of U.S. law, including freedom of information (FOI), or access to information, we can see examples of American privacy expectations that accord with, not diverge from, European norms.  Downstream control by contract has been a key advancement in making some jurisdictions willing to furnish court records to information brokers.  Binding a broker to adjust records later as a condition of receipt helps to solve problems such as expungement, the American judiciary's equivalent to the right to be forgotten.

The case is Emerald Home Care, Inc. v. Department of Unemployment Assistance, No. AC 20-P-188 (Mass. App. Ct. Feb. 2, 2021).  Justice Kenneth V. Desmond Jr. authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Lemire.

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 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.

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.