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BREAKING: NYC Passes “Ban the Box” Legislation Limiting Criminal Background Checks for Job Applicants

On June 10, 2015 the NYC Council passed “ban the box” legislation limiting NYC employers from conducting criminal record checks of candidates for employment prior to making a conditional offer of employment.  The bill has been forwarded to the Mayor for his signature.  More details on the bill can be found here.  The bill’s text is here.

Ban Box

BREAKING: NYC Bans Employer Use of Credit Checks in Employment Decisions

Credit BillOn May 6, 2015 Mayor De Blasio signed into law Intro. 261-A, a Bill that prohibits employers, labor organizations, and employment agencies from using or requesting an applicant’s consumer credit history, and prevents them from discriminating against an applicant or employee based on their consumer credit history.  The law provides several exemptions, including the following: Law-enforcement personnel, employees who have to be bonded, and financial-service workers.  The law takes effect 120 days from signing.  A NYC government press release regarding the new law can be found here: Link

HR Implications:  A review of job descriptions should be conducted to assess whether any positions are covered by the exemptions. Candidate/employee screening for positions not covered by the exemptions must immediately cease using credit screening as part of the hiring/review process for job applicants and emplyees in NYC.  While we have mentioned in past blogs (see here) that a large number of federal courts have held that private employers may use applicant bankruptcy history in making employment decisions, HR would be wise to do an individualized assessment for each candidate subject to such screening to avoid a disparate impact violation under federal and state law for jobs outside of NYC.  Inside NYC such screening are now illegal under local law.

DISCLAIMER: This site and any information contained herein, including this Blog, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

NYC Mayor Signs Bill to Resume Investigating Employment Discrimination Using Testers | #EmpLaw

042015_MayorBillSigningUPDATE: The mayor signed the bill described below on April 20, 2015, thus making it law.  A link with video is here.

BREAKING:  On March 31, 2015, the New York City Council (“Council”) passed a bill requiring the New York City Commission on Human Rights (“CHR”) to conduct, over a 12 month period, at least five (5) investigations of discrimination in employment using testers.  The bill is being touted by lawmakers as one strengthening the CHR.  However, the right to conduct such investigations already exists in the NYC Human Rights Law, to be exercised at the discretion of the CHR.  If signed by Mayor Bill de Blasio, the bill will have the effect of forcing the CHR to actually exercise its authority in this area for at least 5 times per year.  The bill was introduced by the Council’s Chair on Civil Rights, Councilwoman Darlene Mealy of Brooklyn.

The bill specifically requires that:

the commission shall use pairs of testers to investigate local employers, labor organizations or employment agencies and employees or agents thereof. Such investigations shall include but not be limited to using matched pairs of testers who shall apply for, inquire about or express interest in the same job and who shall be assigned similar credentials but who shall differ in one of the following characteristics: actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or other characteristic protected pursuant to title 8 of the administrative code of the city of New York. The first of the investigations shall commence on or before October 1, 2015.

The bill also requires the CHR to submit a report to the Speaker of the Council detailing the investigations conducted during the 12 month period.  The full text of the bill can be found here.  A similar bill requiring testing in housing discrimination was also passed.  It was introduced by Councilman Landers.  A summary of both bills can be found here. Both bills will be sent to the mayor for his signature.

HR Implications

Now more than ever, all staff involved in the hiring process must be trained on how to  draft lawful job ads, how to review credentials and applications, and/or how to conduct lawful interviews under New York City, State, and federal law, depending on their role in the process.  Testers from the NYC Commission on Human Rights will have as their mandate to see whether job candidates are treated differently due to their protected status. Therefore, knowledge of the specific protected classifications under the laws, and how to handle potential reasonable accommodation issues, is vital.  Document the training of staff involved in interviewing.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Oral Pay Complaints To Supervisors Are Now Protected From Retaliation Under The FLSA In The Second Circuit.

show-me-the-money (1)Just a quick note to update THIS old post and indicate that employees in New York are now protected from retaliation under the Fair Labor Standards Act (FLSA) if they make an oral complaint to a company supervisor.

Back in 2011 I blogged on the U.S. Supreme Court decision Kasten v. Saint-Gobain Performance that said that oral employee complaints warrant retaliation protection under the FLSA.  It was significant in that it resolved a split at the federal circuit court level between circuits that held that the complaint had to be written and those that had said complaints could be oral.  However, at the time I noted that the decision was not a big change in New York because the Second Circuit decision in Lambert v. Genesee Hospital, 10 F. 3d 46, 55– 56 (CA2 1993) held that FLSA complaints had to be filed with the government in order to be protected under the statute. Complaints to company supervisors were not protected under the retaliation provision.    As I said in 2011, “[t]he Court specifically refused to decide the issue of whether a complaint needs to be filed with the government or whether filing it with the employer would suffice.” Thus, HR departments in New York had nothing to do in response to the Kasten decision (unless they heard that an employee had filed a FLSA complaint with the government).  However, yesterday this all changed when the Second Circuit reversed its Lambert decision and held that FLSA complaints to the employer warrant retaliation protection under the statute.  The case is Greathouse v. JHS Security.

HR Implications

The practical impact for HR and employers in general is that supervisors must be trained to notify HR when an employee has made a complaint about pay, and that they are not to take any actions against the employee that may be viewed as retaliatory without consulting HR first.  HR should create protocol of documenting oral complaints so that any cases that arise where the employee claims to have made an oral complaint when in fact no such complaint was made, the employer can show that it has a policy of consistently documenting oral complaints and that no document exists in that particular case because no oral complaint was ever made.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Why Internet journalists may organize after all

Hot Off the PressIn short, it’s all about the new “ambush election” rules from the National Labor Relations Board (“NLRB”) that went into effect on April 14, 2015.  I follow a number of labor reporters via their Twitter accounts, and that’s how I heard about the unionization effort currently underway at the online news outlet Gawker, and possibly at Politico.  Specifically, I first saw the Gawker story break on the twitter feed of Lydia DePillis (at @lydiadepillis), a reporter for the Washington Post. The link is here. This in turn led me to an insightful article she wrote on January 30, 2015 ironically entitled “Why Internet journalists don’t organize.”  In it she discusses a fledgling organizing drive at Politico, and the attitudes about unions in the industry.  First of all, you should read it.  Here’s a link.  She interviews insiders and makes sound points as to what may be different about internet journalists, and this generation more broadly, that might explain why they thus far haven’t organized.

In this post I don’t address whether she’s right or wrong about any of this, but rather I highlight the changed NLRB rules that make it easy for unions to get elected as the exclusive bargaining representative of employees.  Indeed, the new rules make it so much easier for unions that we may yet see even Mike Elk (@MikeElk) succeed in his effort to unionize Politico (the article doesnt sound upbeat about his traction).  Why? Because the new election rules promulgated by the NLRB speed up the union election process dramatically.  So much so that almost all of the labor lawyers commenting on these new rules have made it clear that an employer’s best hopes of remaining union-free lie in proactive work long before a union drive is underway.   I  discuss (or obsess about?) the rules in greater detail here.

Given that the industry already has a known and respected union in place (the Newspaper Guild, now rebranded as the NewsGuild), and we are seeing signs at Gawker and Politico that internet journalists are indeed interested in representation, I would be surprised if the NewsGuild, emboldened by the new “ambush election” rules, doesn’t launch an organizing drive at both media outlets and more. In addition to the foregoing the NLRB also recently ruled in essence that employers must permit employees to use company email to organize, thus making union organizing even easier. See here.  It would be hard for NewsGuild to resist these shiny new tools. Unless Gawker and Politico embark on a unionization education campaign with their employees to offset union propoganda before election petitions are filed, it will most likely be too late to effectively counter the union drive after the election petition is filed.  There’s simply not enough time under the new ambush election rules.  According to the article it seems that Gawker has taken a neutral stance thus far. In fact, Gawker has permitted editorial staff to post an article on the Gawker website regarding the reasons some of them are seeking to unionize.  The link is here. No word on Politico’s stance.  Stay tuned.

Other Labor Law Issues in Ms. DePillis’s Article

On a somewhat related note, Ms. DePillis’s article was interesting for other labor law reasons.  In particular, some of the quotes from anonymous young media employees show the battle that the NLRB is waging to gain relevance among today’s workers is a dire one.  With private sector unionization at an all-time low, most employees have no idea that the NLRB even exists, let alone what it does.  This is seen in the following quote:

“ . . .take this response from a 25-year-old employee of a print and online magazine in Washington. He has thought a union might be useful in reducing the anxiety of not knowing when his job might disappear, but he doesn’t know where to start. “I suspect that the lack of knowledge, my own included, about labor laws probably contribute to that problem,” writes the young person, who requested anonymity to avoid retaliation from his employer. “The collective barriers to action with regard to starting a unionization drive — and the inevitable stress and problems it would create — seem more onerous than keeping one’s head down.”“

Two years ago the NLRB released an app, presumably to reach people like this young man.  The app “provides information for employers, employees and unions, with sections describing the rights enforced by the National Labor Relations Board, along with contact information for NLRB regional offices across the country.  The app also details the process the NLRB uses in elections held to determine whether employees wish to be collectively represented.”  See here.  Given this young worker still has no clue what the NLRB is, it’s clear that the NLRB’s outreach leaves much to be desired.

Similarly, another “young employee of a large media company” spoke to Ms. DePillis on the condition of anonymity because “he’s not authorized to talk to the press.”  The NLRB has long held that employer policies restricting employees from discussing the terms and conditions of their employment violate Section 7 of the NLRA.  Indeed, in a March 18, 2015 NLRB General Counsel Memo focused on common employer policies that may violate the NLRA, the NLRB noted that blanket policies prohibiting employees from speaking to the press are unlawfully overbroad.   See pages 13 and 14 of the Memo.

Employers should not count on this level of employee ignorance regarding the NLRA or NLRB continuing, but should instead contact labor counsel proactively and implement positive employee communications strategies and policies to repell potential union drives before they even begin.  Train managers and supervisors on identifying the early signs of union organizing, the dos and donts of conduct during an organizing campaign, and the likely impact of unionization on the company. Do not wait until a union election petition is filed.  Unions won most elections under the old time frame.  Their win percentage will most surely increase under the new rules.  You can print that!

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

The Revolution will be live-streamed, as will sexual harassment in your workplace. #Periscope #Meerkat #HR

Meerkat & periscope(1)This is just a quick note about tech developments that may impact labor and employment law.  This week a new social media technology caught the attention of a few labor & employment lawyers because of its potential to cause headaches for employers and human resource managers.  Specifically, the technology presents the ability for employees (or union salts) to easily live-stream video from their smartphone to their social media followers (Yes, techies, I know it’s not entirely new, but it is new in terms of the ease with which it enables one to execute live streams). Who is providing us with this technology? Two companies: (1) Meerkat (the pioneer), and (2) Periscope (acquired by Twitter January 2015), both have free apps available for download on iPhones.

The world is quickly taking advantage of this new technology, particularly journalists.  The New York City Council live streamed its Women’s History Month celebration via Periscope yesterday, Al Roker has used Periscope to stream backstage footage, and reporters used Periscope to cover reaction to the legislature’s announcement of a budget deal in Albany.

I tweeted on Sunday that this technology will likely be disruptive in the labor and employment arena.  Think of anything that can go wrong in the workplace (drugs, violence, harassment, safety issues, union protests, etc), and then think of the impact it can have on a company’s reputation, not to mention exposure to legal liability, should it be streamed live to the public.  For some reason, this clip from The Office comes to mind.

The big change here is that, unlike conventional video that you can impound and possibly delete before anyone sees it, damage limitation with live-streamed video is limited to stopping any rebroadcast.  You cant undo the live broadcast.  In most cases it is already  gone before you even know its being shot.  Still, on the balance, I think employment lawyer Jon Hyman has it right when he says in his blog that employers shouldn’t rush to ban these apps.  With the doubt/confusion created by the NLRB General Counsel’s recent memo on whether such bans would pass muster under the NLRA, I agree that the better course until courts provide some clarity is to train staff on the reality that much of what happens at work may end up online.

Stream App LogosBack to the technology.  Until now, the focus has been on Meerkat and Periscope, the two brands making the most news.  As mentioned above, both apps are currently available for iPhone users only.  There is no word on when their Android versions will be released.  However, for those using smartphones running on the Android platform (like yours truly), two companies have jumped in to fill the Meerkat and Periscope Android void.   Tarsii-live and Stre.am are two Android live-streaming apps already live in the Google Play store.  I have not had the opportunity to try them out, but will update this post as soon as I do.  Or maybe I’ll live-stream the update . . . .

*Quick Update:  I have tried the Stre.am app, and it does what it says on the tin – live streams from your Android smartphone.  Very easy to use.  Not a huge following yet, and I wonder what will become of the app once Meerkat and Periscope offer Android versions, but for now Stre.am provides Android users with a viable live-streaming option for their smartphones.

*Quick Update: Both Meerkat and Periscope have rolled out their Android versions.  I am infrequently on Periscope. You can see what and when Im scoping by following me on Twitter at @ShaunReidESQ.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Get Ready: Uncle Sam Wants Employers to Lose More Union Elections

2015 UPDATE: The rules discussed in this 2011 blog post are set to be implemented this year.  The “Ambush Election” rules will likely go into effect on April 14, 2015, and the “persuader” rule changes are expected to take effect in July 2015.  As discussed below, the combined effect of these changes will likely be that employers will be blindsided by union elections with no time to react, and have a hard time finding experienced labor lawyers willing to represent them.  Employers are advised to contact labor counsel proactively and prepare a strategy to remain union-free before there is even a hint that a union is organizing employees. 

Yes, it is true. Its happening.

Uncle Sam2

On June 20 and 21, 2011, the Federal government (through the U.S Department of Labor (“DOL”) and  the National Labor Relations Board (“NLRB” or “Board”) respectively) announced proposed rules that seek to strip away any significant means employers have to mount an effective defense to unionization drives.  Given how tough it is for employers to win union elections under the current system, one can only wonder what problem the government seeks to fix with these proposed rule changes.  It seems that the old adage “if it ain’t broke, don’t fix it” does not apply where the government and private sector unionization is concerned.    Through these proposed rules, announced by two federal agencies a mere day apart, private employers are being sent a clear message that the federal government wants to help unions win more elections.  Employers would be wise to heed this message and prepare accordingly.

I.                    Current System

a.       Time Frame of Union Elections

Under the current system, unions win roughly 65% of elections.  Recent statistics show that pre-election hearings are noticed and completed within just 13 days.  In addition, on average, elections are typically conducted within 38 days.  In 2010, 95% of all initial elections were conducted in less than 60 days.

b.      Practical Realities of the Current Election Process

Considering the fact that only 6.9% of private employees are unionized (a historic low) this article assumes that most of its readers have minimal familiarity with NLRB union election procedures.  As such, this section represents a basic summary of the existing practice in NLRB representation elections.

When an experienced union targets an employer for organizing, it can speak to the employees of the target employer for months before the employer even suspects anything is happening.  This can happen offsite at local restaurants, parks, and bowling alleys, etc.  It can also happen onsite where unions send “salts” to get hired by the employer by posing as real job applicants.  During this time, current law permits union organizers to make false promises to the employees regarding what the employees can expect if they vote for union representation.  As such, it is not unheard of for union organizers to promise large pay raises, boosted health care benefits, retirement plans, and removal of unpopular supervisors.   Unions may also misrepresent to employees the significance of employees signing union authorization cards.

Once the union has signed authorization cards from 30% of the employees in the targeted bargaining unit (the specific group of employees the union wants to represent), the union can file a petition for an election to be conducted by the NLRB.  When the NLRB reviews the union’s election petition and is satisfied that the union has a sufficient showing of interest (30%), it tries to work out an agreement between the parties for the scheduling of an election.  If an agreement is not made, the Board schedules a pre-election hearing to be held usually within two weeks.  When the employer gets notice of the pre-election hearing, they rush to find competent labor counsel.  Labor counsel will assist the employer in identifying issues to be raised at the hearing, and begin advising the employer of the NLRB election process, election campaigns, and compliance.  At the hearing, parties are expected to raise any issues with respect to voter eligibility, and the unit composition (i.e., is the group the union seeks to represent appropriate? or should it be larger/smaller?).

After the pre-election hearing, the NLRB will direct an election be scheduled.  The average time it takes for an election to be conducted after a petition is filed is 38 days.  For the employer, it is a very intense 38 days, filled with countering union misinformation, and  planning, coordinating, and executing its own counter-union election campaign, all while still trying to run its core business.

II.                  Proposed Rules

 A.      The NLRB Proposed Rules: “Ambush Elections” 

Under the proposed rules issued by the NLRB, the union election process, which currently takes an average of 38 days to run its course, could be cut down to between ten to twenty-one days.  Some of the highlights of how the proposed rules reduce the pre-election period include:

  • Elections and petitions may be filed electronically;
  • A significant restriction of the opportunity for pre-election full evidentiary hearing or NLRB review of contested issues involving, among other things, appropriate unit, and voter eligibility;
  • Reduction of the time for an initial hearing from 14 days to 7;
  • Employers will be required to submit a list of issues it wishes to raise by no later than the day of hearing, or risk waiving them.  That is, the employer has only 7 days to select competent counsel, and research and raise any issues that may be relevant to the employer’s position;
  • Two days after an election has been scheduled, an employer would be required to submit to the union a final list of eligible voters (down from 7), which must include mailing addresses, phone numbers, and email addresses where available;
  • Post-election hearings will be scheduled 14 days after the votes are tallied;

One of the most significant changes that the proposed rules make is that all election-related litigation will be shifted to the post-election period.  In addition, the act of reducing the time for an initial hearing will seriously prejudice employers.  Needless to say, in just 7 days, employers will be hard-pressed to find and select competent counsel and formulate any meaningful strategy, let alone conduct even preliminary research in anticipation of any issues that may arise.

The practical effect of these rules would be to continue to allow unions unlimited time to organize and persuade employees to support them, often through misinformation and false promises, while reducing an employer’s time to respond to as little as 10 days.  When one considers that current law permits unions to promise employees the world in exchange for their support, and prohibits employers from doing the same, it is not hard to see why a 10-21 day period is woefully insufficient time for an employer to effectively counter a union’s election campaign propaganda.   Union organizers typically campaign for months by providing employees with misinformation and false promises.  A properly conceived employer election campaign involves researching issues of concern to the workforce, countering inaccurate union propaganda, and fashioning lawful communications that effectively convey the employer’s position on various aspects of unionization.   This can be a time consuming undertaking, particularly for smaller employers who typically do not have labor counsel on retainer, or even have contact information for one.

While technology has arguably made it easier for employers to communicate with their employees, it has also increased the number of channels that an employer must communicate through, including e-mail, websites, social media, podcasts, and DVDs.  Effectively and lawfully communicating through these various channels takes time to plan in the context of countering a union election campaign, and often involves looking at various third party offerings since election campaigns simply do not allow for much production time, and employers usually do not have the expertise to produce them in-house.    While unions have as much time as they want or need to talk to employees, the proposed rules would force employers to try to cram all of their preparation and execution into a mere 10-21 day period.  After taking a close look at these proposed rule changes, it is not hard to see why some are calling them a proposal to create “Ambush Elections” that give employers little chance of winning.

B.      The DOL Proposed Rule: Turning Labor Lawyers into Persuaders  

In addition to the above proposed rules from the NLRB, to make matters worse, the rule proposed by the DOL will likely result in employers not getting comprehensive legal advice and assistance to guide their conduct during union election campaigns.  The reason for this is that the DOL proposed rule will basically require labor attorneys to report to the DOL the details (including attorney-client communications and fees) of their relationship with any employer that they provide strategic assistance to during an election campaign.   Currently, only so-called “persuaders” that speak directly to employees in an effort to persuade them to vote “no” in the election have to report the details of their relationships to the government.

An employer facing a union election will typically engage the services of a labor attorney and/or a particular type of labor consultant called a “persuader”.  Persuaders are labor consultants that directly communicate (by speech or in writings) with employees in the voting unit on behalf of management during a union election campaign.   The activity of persuaders is regulated by the Labor-Management Reporting and Disclosure Act (LMRDA), and requires persuaders to disclose in a yearly report to the DOL the nature of their activities and the fees earned in performance thereof.  For 50 years, the LMRDA has provided that labor attorneys that merely advise employers of their rights and strategies during union election campaigns are exempt from reporting under the persuader rules, unless they communicate directly with voting unit employees.

Thus, how it sometimes works is that labor counsel advises the employer on the NLRB election process, strategizes with the employer on how to win the election, drafts communications subject to the employer’s final edits, and trains supervisors on the “Dos and Don’ts” of responding to union organizing.  Where the employer determines that its supervisors are ineffective or inadequate in communicating the employer’s views to the employees in the voting unit, the employer may choose to hire a persuader to talk directly to the employees regarding the union election campaign.

The proposed DOL rule seeks to cover labor attorneys under the persuader rule by expanding the definition of “persuader activity” to include both direct and indirect efforts to persuade employees concerning their rights.  The proposed rule accomplishes this by (1) shrinking the definition of “advice” to mean only oral and written recommendations, and by (2) expanding the definition of “persuader activity” to include when an attorney provides materials or communications in draft form to be included in an employer speech or poster/handout.  In addition, an attorney would have to report under the persuader rule if he plans,  directs, or coordinates the activities of employer representatives, such as supervisors and managers, or provides them with materials, whether for their own use or for distribution to employees.  On its face, the proposed rule seems to be aimed at discouraging attorneys from active participation in an employer’s election campaign.  At a minimum, it would seem to be aimed at discouraging labor attorneys from drafting any communications intended for use by the employer or its representatives.

Thus, under the proposed rules, if labor attorneys wish to stay in the union election business, they will have to relegate themselves to merely advising employers of their rights, and editing draft employer communications.  The actual drafting of the communications will have to be left up to the employer.  Bear in mind that in order for the employer to draft effective and lawful communications, the employer would have to understand which themes resonate most in union elections, are lawful, and how to word its messages in a lawful manner. Well, you will recall that under the NLRB proposed rules, the employer will have as few as 10 days to learn the entire NLRB election process, counter the union’s propaganda, train supervisors, craft a winning strategy, and draft persuasive and lawful material for distribution to employees.  While theoretically possible, it is highly improbable that most employers will be able to pull this off. Even the best persuader companies recognize the importance of working with labor counsel.  Without the benefit of labor counsel, employers will likely either mount a poor counter-union campaign, commit serious unfair labor practice violations, or both, resulting in (1) a loss in the election, or (2) the ordering of a rerun election, or (3) being hit with a bargaining order, which essentially forces the employer to deal with the union as if the union won the election.

To summarize, the combination of the proposed NLRB and DOL rules sends the message that the federal government wants employers to have (1) insufficient time to prepare its defense and counter a union election campaign, and (2) no labor counsel expertise in drafting effective and lawful union election campaign communications.  In short, from where I sit, the federal government wants employers to lose more union elections.

III.                All is Not Lost

Despite the fact that the NLRB has held some public hearings regarding its proposed rules, and both the NLRB and DOL are seeking public comments on the proposed rules for 60 days, it is safe to assume that these proposed rules will go into effect.  Once they go into effect, it is also safe to assume that there will be a significant spike in union organizing activity.  Rather than sit and wait for this to happen, or worse, sit and hope that it does not happen, the prudent employer will seize this moment in time to aggressively educate his employees on the cons of union membership and unionization.  At a minimum, you should have your front-line managers and supervisors trained on the impact of unionization, recognizing signs of union activity, and basic union avoidance.  Do not think that just because you see no signs of union activity at your work-site it means that you have nothing to be concerned about.  As noted above, once the new rules go into effect, unions will ramp up their organizing of employers in an unprecedented manner.  Be proactive while the law still gives you the time to be.  Do not wait to be ambushed!  Consult competent labor counsel as soon as possible.

With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in traditional labor law matters at rates that are reasonable and affordable.  For more information, call us at (718) 412-8452.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Women’s History Month: Attorneys Constance Baker Motley & Sonia Pressman Fuentes

In honor of Women’s History Month, Reid Kelly, P.C. shines a spotlight on two phenomenal women that had an incredible impact in the development and enforcement of civil rights and workplace rights for women in America.

Constance Baker Motley

Constance Baker Motley (14 September 1921–28 September 2005) was born in New Haven, Connecticut, the daughter of immigrants from the island of Nevis.  During law school at Columbia Law School, she worked as a law clerk for Thurgood Marshall, the Executive Director and Chief Counsel of the NAACP Legal Defense and Education Fund (“LDF”).  Within a year she was drafting the original complaint in the landmark 1954 Brown v Board of Education case at the U.S. Supreme Court that ended legal segregation in public education.  At the time, she was the only female attorney at the LDF.

Over a 20 year career at the LDF, she was promoted to chief counsel, and won the case that got James H. Meredith admitted to the University of Mississippi, ending its policy of racial segregation.  Motley & MeredithShe represented Dr. Martin Luther King Jr. when he was imprisoned in a Birmingham jail, and also stayed overnight with Medgar Evers in his home under armed guard.  She also became the first African American woman to argue before the U.S. Supreme Court.  Of the ten cases that she argued before the court, she lost her first case, but won the other nine.  Many years later, the Supreme Court also reversed itself in her first case!  Always blazing trails, she later went on to become the first African American Woman to be a New York State Senator, and the first woman to serve as Manhattan Borough President.  In 1996 she was appointed to the federal bench.  She was the first African American woman to serve as a federal judge.  She served as a federal judge until she died in 2005, at the age of 84.   photo credit: Source 

In a tribute to her legacy, Supreme Court Justice Ruth Bader Ginsburg noted the following:

“Among the many cases over which she presided, in the mid-1970s, she was assigned to adjudicate Blank v. Sullivan & Cromwell, a Title VII gender-discrimination class action against several of New York’s most prestigious firms. In the course of that litigation, she was asked by defense counsel to recuse herself because she was a woman and, before her elevation to the bench, a woman lawyer. She declined to do so, explaining politely but firmly:

“[I]f background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”

Blank v. Sullivan & Cromwell , 418 F. Supp. 1, 4 (S.D.N.Y. 1975).

I count it my great good fortune to be among the legions whose lives Judge Motley touched. She taught me and others of my generation that law and courts could become positive forces in achieving our nation’s high aspiration—as carved above the entrance to the U.S. Supreme Court—Equal Justice under Law. May the history she helped to create prove inspiring to law students and lawyers just entering the profession. And may her achievements stand as basic building blocks for the work that remains to be done.”  See Source

 Sonia Pressman Fuentes

Sonia Pressman Fuentes graduated from the University of Miami law school in1957, a time when only 3% of the country’s law school graduates were women.  Private law firms and corporations were not hiring many, if any, women, so she went to work for federal agencies.  She worked for the Department of Justice, and the National Labor Relations Board.  Then in October 1965, she joined the three month old Equal Employment Opportunity Commission, the federal agency that was created by the Civil Rights Act of 1964, to enforce Title VII of that law.  She worked in the EEOC’s Office of the General Counsel in Washington D.C., and was the only woman attorney working there.  As you know, Title VII prohibits unlawful discrimination in employment based on protected classifications, including gender.  Shockingly, she discovered that “[n]ot only was the country uninterested in sex discrimination, so were most of the commissioners, officials, and staff at the EEOC.”  See source

Since the EEOC was originally created principally to fight racial discrimination in employment, the small staff at the EEOC did not want to divert many resources to fighting sex discrimination.  However, after its first fiscal year in operation, the agency discovered that 37% of the complaints it received were about sex discrimination.  Despite this, she still found that the EEOC moved slowly on sex discrimination, causing her incredible frustration.  At every opportunity Mrs. Fuentes pushed hard for the EEOC to take up the fight against sex discrimination.  Indeed, so much so that, incredibly, the EEOC General Counsel called her the “sex maniac.”  sonia_pressman_fuentes_eeoc_award_photoMs. Fuentes learned that in order to compel the EEOC to prioritize sex discrimination, women needed what African Americans had in their fight to get Title VII passed: an outside advocacy group working on their behalf.  Through her professional network, she organized with other professional women to form the National Organization for Women (“NOW”).  Using her inside knowledge Ms. Fuentes informed NOW of initiatives the EEOC was considering,  so that NOW’s timing could be precise in pushing the EEOC into action.  Through NOW’s actions (lawsuits, petitioning the EEOC for public hearings, and picketing the White House), they managed to propel the EEOC into action on a plethora of issues relating to sex discrimination.   The fact that since at least 1997 sex discrimination complaints have consistently hovered around 30% of all complaints filed at the EEOC highlights how important Ms. Fuentes’ advocacy was in getting the EEOC to focus resources on combatting it.  See Stats Source.  Photo of Ms. Fuentes recieving the EEOC performance award.  Credit: Source.  

BLACK HISTORY MONTH: Clarence Mitchell Jr.’s Pivotal Role in the Passage of Title VII of the Civil Rights Act of 1964

Most people know of the role the National Association for the Advancement of Colored People (“NAACP”) and the legendary Thurgood Marshall played in knocking down “separate but equal” laws in public education via the landmark 1954 Brown v Board of Education U.S. Supreme Court decision, but how many know the role played by the NAACP’s Clarence Mitchell Jr. in getting Title VII passed?   We at Reid Kelly, P.C. find it particularly important to explore the life of this great lawyer, lobbyist, and strategist for civil rights, and how his work impacts the work that we are all currently engaged in.

Born in Baltimore, Maryland, on March 18, 1911, he led the struggle in Washington for passage of the civil rights laws, including Title VII.  He joined the national staff of the NAACP in Washington as Labor Secretary in 1946. From 1950 to 1978 he was Director of the NAACP Washington Bureau, as well as Legislative Chairman of the Leadership Conference on Civil Rights.  Working the halls of Congress, and the Executive Branch, Mitchell worked tirelessly behind the scenes ensuring that Title VII got the votes it needed to pass.

This was a very difficult time in the nation’s history.  Among other things, these incidents occurred while Title VII legislation was working its way through Congress:  Dr. Martin Luther King Jr. wrote his letter from a Birmingham jail on April 12, 1963; “Bull” Conner unleased fire hoses and police dogs on anti-segregationist demonstrators on May 2, 1963; Governor Wallace of Alabama literally stood in the door of the University of Alabama in an attempt to block integration of the school on June 11, 1963; Medgar Evers was assassinated on June 12, 1963; the March on Washington happened on August 27, 1963; The 16th Street Baptist Church in Birmingham, Alabama was bombed on Sunday, September 15, 1963, killing 4 little girls and injuring 22 others; and President Kennedy was assassinated on November 22, 1963.  Yet still Mr. Mitchell and the NAACP pressed on, now with new President Johnson, against the odds to get the law passed.   Indeed “[s]o legendary was Clarence Mitchell, Jr., as a civil rights lobbyist in Congress that he was popularly called the “101st senator.” See http://www.clarencemitchellpapers.com/

Clarence Mitchell NAACP

Picture featuring Joseph Rauh, Clarence Mitchell Jr., and Roy Wilkins conferring about lobbying strategy on August 7, 1963.  Credit: http://www.clarencemitchellpapers.com/

“His work encompassed the contributions of eight presidents, from Franklin D. Roosevelt to Jimmy Carter, in a mission to build a legacy of advocacy that won him the popular tribute of “101st senator,” and the Presidential Medal of Freedom. Every civil rights law from the 1957 Civil Rights Act to the 1968 Fair Housing Act, plus their strengthening provisions and constructive executive policies, bears his imprimatur.” IdClearly, as we celebrate Black History Month, and the ground breaking Civil Rights Act of 1964, and specifically Title VII, we must also celebrate the legacy and contributions of this great man, Clarence Mitchell Jr.  For more on his remarkable life, read Dr. Henry Louis Gates Jr.’s excellent piece HERE

*On a related note, we are all no doubt familiar with the contentious nature of the passage of the Civil Rights Act of 1964 in Congress, including the 14 hour filibuster by conservative Senator Robert C. Byrd.  However, did you know that among those that went to Capitol Hill to hear debate on the law were none other than Dr. Martin Luther King Jr. and Malcolm X? In fact, it was the only time that the two ever met, and lasted only a few minutes.  It was captured in this now famous photograph.

 King Meets X

 

 

 

 

 

FREE Employment Law Seminar: “Hiring Right” – Queens, February 20, 2015

WHAT?

Employment law seminar: Hiring Right! Join Labor & Employment attorney Shaun C. Reid, Esq. of Reid Kelly, P.C., along with NYC Business Solutions on February 20, 2015, for a free seminar on hiring, managing, and firing employees in compliance with today’s labor and employment laws.

WHY?

Do you want to avoid making mistakes in hiring that can expose your business to lawsuits? In this class, you will learn about the many laws affecting how you manage employees, from hiring to firing.

You will learn about: 

  • Laws covering the hiring process
  • Job posting and Sourcing
  • References and background checks
  • 10 Tips to Avoid Lawsuits

WHEN?

Friday, February 20, 2015 from 10:00 AM to 12:00 PM (EDT)

WHERE?

NYC Business Solutions Center
168-25 Jamaica Ave, 2nd Floor, Jamaica, NY 11432

REGISTER NOW BY CLICKING HERE!

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