212.627.8100Case Spotlights
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U.S. Department of Labor Expands Eligibility for COVID-19 Unemployment Benefits, Including Workers Who Refuse to Work in Unsafe Conditions
During the COVID-19 pandemic, many workers have made the difficult choice not to return to an unsafe workplace or to decline a new offer of unsafe work to avoid the risk of catching the virus. On February 25, 2021, the U.S. Department of Labor (DOL) released guidance announcing that individuals in these situations, in addition to other categories, may be eligible for Pandemic Unemployment Assistance (PUA). PUA is a temporary program created by the Coronavirus Aid, Relief, and Economic Security (CARES) Act, initially to provide unemployment benefits to individuals who usually do not qualify for state unemployment benefits, such as self-employed and gig workers, but are unemployed because of the pandemic.
The DOL’s new guidance extends PUA benefits to three new categories of workers:
- Workers who refuse to return to a worksite or accept a new offer to work at an unsafe worksite. The DOL considers a workplace “unsafe” when it fails to comply with local, state, or national COVID-19 health and safety standards. This may include the failure to follow standards related to mask wearing, physical distancing, and providing adequate personal protective equipment (PPE).
- Certain workers of educational institutions who have experienced reduced hours as a direct result of the pandemic, including changes in schedules and partial closures. Eligibility in this category depends on whether the educational worker has a contract or “reasonable assurance” to return to the workplace in the next school year or term. Generally, an individual who does not have a contract or reasonable assurance to return to work in the next year or term may be eligible for PUA. Conversely, if the individual has a contract or reasonable assurance that they will return to work in the next year or term, they likely are not eligible for PUA.
- Workers who were laid off or had their hours reduced as a direct result of the pandemic. Before this guidance, PUA was only available to workers who were laid off because their workplaces fully closed because of the pandemic. This category expands PUA eligibility to workers who were laid off because their workplace partially closed and to workers who have had their hours reduced because of the pandemic.
This guidance applies retroactively, meaning individuals who fall under these categories may be able to receive payments for their time out of work that has already passed. However, individuals who filed their first claim for PUA after December 27, 2020 will only be eligible for retroactive benefits for weeks of unemployment starting on or after December 6, 2020.
The PUA payments are federally funded, but are administered by state governments. Workers should direct PUA eligibility questions to state employment agencies. The DOL estimates that it may take until the end of March for many states to modify their PUA application processes to include these categories and make the benefits available to newly eligible applicants.
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New York Wins against U.S. Department of Labor: Expanding Paid Leave during COVID-19
On August 2, 2020, a Manhattan federal judge ruled in favor of the State of New York by striking down the Trump administration’s standard for determining which employees are eligible for relief under the Families First Coronavirus Relief Act (“Act”).
The Department of Labor’s interpretation of the Act created excessive loopholes allowing employers to deny employees leave when they needed it most. The court rejected the DOL’s work availability requirement and partially rejected its requirement that certain workers receive an employer’s consent before taking intermittent leave.
Most significantly, the court’s decision put an end to the DOL’s extraordinary interpretation of the term “health care provider” to deny virtually everyone working in the health field the important sick leave benefits provided by the Act. The DOL previously defined “health care providers” to include anyone employed at “any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institutions, Employer, or entity.” Levy Ratner submitted an amicus brief on behalf of 1199 and SEIU members to assist the State of New York in explaining to the court why the DOL’s interpretation was wrong. The court agreed that the DOL’s definition was “vastly overbroad.”
It is not clear how employers and the DOL will now interpret the Act. But, a greater number of healthcare workers should have access to extended sick leave and family and medical leave benefits if they are personally affected or need to take care of a family member affected by COVID-19, or are caring for a child whose place of care is closed due to COVID-19.
For more information on the benefits provided under the Act, reference earlier LR What You Need to Know Now articles here, here, and here. The benefits provided by the Act are set to last through December 31, 2020. Follow LR on LinkedIn to stay up to date as interpretation of the Act continues to evolve.
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Levy Ratner Files Amicus Brief on Behalf of SEIU and 1199SEIU Supporting New York Challenge to DOL COVID-19 Regulations
Levy Ratner filed an amicus curiae brief on behalf of the Service Employees International Union and 1199SEIU United Healthcare Workers East supporting the New York State Attorney General’s lawsuit challenging the Trump Department of Labor’s regulations interpreting the Families First Coronavirus Response Act. The amicus brief supports the NYS Attorney General’s argument that the federal regulations create unlawful and unjustifiable loopholes in the federal law that allow employers to deny paid sick leave and emergency family leave to millions of workers just when they need it most.
One of those loopholes is the regulations’ overly expansive definition of “health care provider.” While similar statutes limit the term “health care provider” to medical doctors, osteopaths, dentists and similarly licensed health professionals, the U.S. Department of Labor applies that term in the law to all employees of a health care institution, or any entity that contracts with a health care institution. In doing so, the regulations deprive virtually every healthcare worker of the right to these newly created federal sick leave benefits.
The brief tells the personal stories of real healthcare workers: workers who cared for COVID-19 patients, contracted the virus themselves, and then went for weeks without pay; others who were forced to work while sick because they could not afford to lose pay, thereby risking their own health and the health of their co-workers, patients, and the public; and still others who lost their jobs because they needed to stay home to care for their children when schools were closed and day care was unavailable.
On behalf of SEIU and 1199SEIU, Levy Ratner urged the court to set aside the regulations so that healthcare workers – the people who are caring for the sick and who are keeping our hospitals, nursing homes and clinics operational in a pandemic — can benefit from the safety nets Congress intended to provide during this unprecedented health and economic crisis.
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Researcher and Google Activist
Meredith Whittaker is a Research Professor at New York University, the Co-founder of NYU’s AI Now Institute, and the founder of Google’s Open Research group.
She was also a leader in labor organizing efforts, including the Google Walkout and other mobilizations, while employed at Google
Her organizing drew from her research, recognizing that a powerful multinational tech corporation was unlikely to make ethical and just decisions without the force of worker power compelling it.
Levy Ratner represented Meredith in a retaliation charge before the National Labor Relations Board.
She has since moved on from Google, but she continues to promote tech worker organizing through her research and advocacy.
Our firm stands with Meredith in fighting for the rights of tech workers to speak out and hold their employers accountable.
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Fight for $15
In our role representing the Fast Food Workers Committee, Levy Ratner attorneys helped structure successful workplace actions and demonstrations in New York City that formed a foundation for the national living‑wage movement known as Fight for $15. Micah Wissinger was one of the architects of landmark litigation before the National Labor Relations Board involving McDonald’s Corporation and served as the primary attorney representing the union. The breadth and scope of the case were unprecedented, resulting in a multi‑year hearing before an Administrative Judge to determine whether McDonald’s was liable for its franchisees’ workplace violations, including retaliation for attempts to unionize.
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Levy Ratner Champions the Rights of Low‑Wage Workers in Alabama Wage Law Litigation
This case began in 2015 when the Alabama state legislature passed a bill to block the Birmingham City Council’s attempt to raise the minimum wage in Birmingham to $10.10. The wage increase would have made Birmingham the first city in the South to raise its minimum wage.
The legislature’s decision to block the wage increase, enacted the day following its effective date, was met with public protests by local low‑wage workers and supporters of the Birmingham ordinance.
Levy Ratner, along with co-counsel, represented the plaintiffs, who argued that Alabama’s legislation that nullified a raise for 40,000 workers was tainted “with racial animus” and violated the equal protection clause of the U.S. Constitution.
Plaintiffs alleged that black wage workers in Birmingham make, on average, $1.41 less per hour than white wage workers, and $2.12 less per hour statewide. Therefore, the Alabama law fell more heavily upon black workers than white. A three-judge panel of the 11th Circuit found that the trial judge had erred in dismissing the complaint but the full Court of Appeals concluded that the Plaintiffs lacked standing to challenge the law.
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Black and Latino Electricians Fight Racial Discrimination by the City of New York….And Win a Settlement
The City of New York agreed to pay $155,000, plus attorneys’ fees, to five black and Latino electricians in their claims of race discrimination and retaliation against the FDNY. They were represented by Levy Ratner’s Dana E. Lossia and Robert H. Stroup.
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Restaurant Workers Awarded $400k in Wage Violation Case
When seven restaurant workers sued their employer for claims of unpaid overtime and minimum wage violations, Levy Ratner’s Allyson L. Belovin reached a settlement of more than $400,000 on their behalf.
Judge Ronnie Abrams of the U.S. District Court, Southern District of New York, awarded the plaintiffs’ recoveries ranging from $15,700 up to $85,650 each, and totaling more than 80% of the estimated potential recovery at trial.
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Women Hold Cleveland Fire Department Accountable for Job Discrimination
Cleveland’s written and physical tests for firefighter jobs discriminate against women, found the U.S. Equal Employment Opportunity Commission, based upon charges filed by Levy Ratner’s Dana Lossia and Rebekah Cook-Mack, along with our co-counsel at Nichols Kaster, PLLP.
Our clients are women who were unfairly disqualified in the testing process and are demanding fair hiring standards, back pay and other relief for themselves and other women.
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Black and Latino firefighter hopefuls get a second chance to join the FDNY
Roughly 25% of New York City residents are African American, but for decades the FDNY’s firefighting force was only around 3% black.
Levy Ratner began investigating this disparity and learned that the City’s hiring process was systematically excluding black firefighter candidates who were well qualified to serve their City.
Our clients – a group of black firefighters and firefighter applicants – believed that the City’s hiring tests were racially biased. We decided to bring a class action race discrimination suit in federal court on behalf of hundreds of victims.
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$400,000 Settlement Reached for Restaurant Workers in Wage Violation Case
Judge Ronnie Abrams has approved a settlement of more than $400,000 for claims of, among other things, unpaid overtime and minimum wages by seven workers represented by Levy Ratner.
Susan Cameron discusses the settlement on NY1 Noticias here.
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Class Action Filed on Behalf of Non‑Union Home Care Workers Alleges ERISA and New York Wage Parity Violations
On November 28, 2018, Levy Ratner and Feinberg Jackson Worthman & Wasow filed a class action on behalf of Plaintiffs Ynes Gonzalez de Fuente, Mariya Kobryn, and Ivan Kobryn in the United States District Court for the Eastern District of New York against, among others, Preferred Home Care of New York, Edison Home Health Care, and Healthcap Assurance, Inc., under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the New York State Home Care Worker Wage Parity Law (“Wage Parity Law”). The plaintiffs seek to represent a proposed class of approximately 4,000 home health aides. The complaint alleges that Preferred and Edison created a single employer welfare benefit plan for the purpose of appearing compliant with the Wage Parity Law, while actually evading its requirements and misappropriating ERISA-protected Plan assets. Through this scheme, over a two-year period, the complaint alleges Preferred and Edison purported to set aside approximately $35.5 million dollars into the Plan, but in fact paid out less than $10 million towards employee health benefits. Instead, as alleged, Preferred and Edison concocted a plan to retain millions of dollars of Plan assets for themselves and/or their principals, in violation of the Wage Parity Law and ERISA’s fiduciary and prohibited transaction rules.
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In Another Victory for Fast‑Food Workers, Judge rejects McDonald’s Settlement
On July 16, Administrative Law Judge Lauren Esposito rejected a proposed settlement between McDonald’s USA and the General Counsel National Labor Relations Board, in large part because it would have little actual impact on the workers affected by McDonald’s unfair labor practices.
In 2012 McDonald’s workers complained of retaliation for supporting “Fight for $15,” a nationwide campaign for better wages. Since then, Levy Ratner partner Micah Wissinger has tirelessly advocated for workers who were “illegally fired and harassed for fighting to get off food stamps and out of poverty.” In 2014, the General Counsel of the NLRB issued complaints against McDonald’s, followed by 3+ years of litigation in what developed into the largest case in agency history, spanning over 150 days of trial and requiring litigation before six federal courts. Throughout her decision Judge Esposito noted the ways that McDonald’s complicated and delayed the proceedings in “extraordinary” fashion. The inadequate settlement between McDonald’s and the new Trump-appointed NLRB General Counsel, Peter Robb, did not satisfy Judge Esposito because McDonald’s would have no actual obligation toward the affected workers.
The key legal question in the case is whether McDonald’s is a “joint employer” of the workers hired by its franchisees. If it is deemed a joint employer, it would be liable for the violations of the franchisees.
To learn more about Micah Wissinger, or to request a consultation, contact us at (212) 627-8100 or info@levyratner.com
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NLRB Rules in Favor of Graduate Student Unions at Private Universities
The NLRB has ruled that graduate student employees at Columbia University and other private universities have the right to form or join a union and bargain collectively, reversing a 2004 Brown University decision. Levy Ratner’s Carl Levine, who devotes a large portion of his practice to representing faculty members and unions at colleges and universities, is quoted in the Chronicle of Higher Education concerning this historic ruling.
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Victory over Domino’s Pizza’s Unlawful Arbitration Agreement, on Behalf of the Fast Food Workers Committee
The Fast Food Workers Committee, represented by LR’s Micah Wissinger and Gwynne Wilcox, earned a major win in their fight on behalf of fast food workers nationally. In December 2015, the NLRB ruled that Domino’s violated the law by maintaining an arbitration agreement that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.
Domino’s began requiring employees to sign the arbitration agreement in November 2009. The agreement included a section stating that “any claim shall be arbitrated only on an individual basis and not on a class, collective, multiple-party, or private attorney general basis.” While the employees were able to opt-out of this agreement, they would have to do so in writing within 30 days of signing it. Domino’s argued that because of the inclusion of an opt-out provision, the arbitration agreement was lawful. The Board rejected that argument. As a result, Domino’s must now cease from maintaining any arbitration agreement “that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums.”
To learn more about Wilcox’s work in support of the Fast Food Workers Committee, click here.
To learn more about Wissinger’s work in support of the Fast Food Workers Committee, click here.
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FDNY Electricians Win Settlement of Race Discrimination Claims Against the City of New York
The City of New York agreed to pay $155,000, plus attorneys’ fees, to five black and Latino electricians represented by Levy Ratner in their claims of race discrimination and retaliation against the FDNY. The plaintiffs in Seabrook, et al v. City of New York also won an injunctive relief settlement aimed at advancing cultural change within the Department. They were represented by LR’s Dana E. Lossia and Robert H. Stroup.
