Criminal Enforcement - Materials Bank

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Child Labor Violations

Wage Theft

 

Joint Employer Liability

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People of the State of New York v. Domino's Pizza Inc. (May 23, 2016)

Massachusetts Office of the Attorney General v. Greg Decious and Coliseum Companies, Inc. D/B/A Bay State Linen 

Massachusetts Office of the Attorney General v. Unwrapped, Inc., and Stephen A. Katz 

Misclassification

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Defining the working relationship between “employees” and “independent contractors” is one of the most troublesome and important issues facing businesses today. Classifying workers as independent contractors allows companies to avoid paying minimum wage, overtime, Social Security and Medicare taxes, unemployment insurance taxes, workers’ compensation premiums, and circumvent federal antidiscrimination laws. Consequently, misclassification denies workers of rightful protections and privileges under state and federal law. Meanwhile, avoiding the payment of certain taxes and wages gives employers a competitive advantage and thus, an economic incentive to misclassify.  Such forces could lead to what has been coined in the wage-and-hour context as a “regulatory race to the bottom.” Lastly, misclassification also causes federal, state and local governments to suffer revenue losses as employers circumvent their tax obligations. 

In an attempt to combat this scourge, states have employed multidisciplinary and multifaceted approaches, including the formation of state task forces, federal-state cooperation and litigation. Here are some examples:

Federal Action

The U.S. Department of Labor’s Misclassification Initiative, launched under Vice President Biden’s Middle Class Task Force, seeks to combat this pervasive issue on a national level and restore crucial employee rights to those denied them. In September 2011, former Secretary of Labor Hilda L. Solis announced a major step forward with the signing of a Memorandum of Understanding (MOU) between the Department and the Internal Revenue Service (IRS). Under this agreement, the agencies will work together and share information to reduce the incidence of misclassification of employees, to help reduce the tax gap, and to improve compliance with federal labor laws.

Additionally, labor commissioners and other agency leaders representing thirty-five states (as of Nov. 2016) have signed MOUs with the Department’s Wage and Hour Division, and in some cases, with its Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Office of Federal Contract Compliance Programs (OFCCP), and the Office of the Solicitor. Under the Obama Administration, the U.S. Labor Department actively pursued MOUs with additional states as well.

These MOUs will enable the U.S. Labor Department to share information and to coordinate enforcement efforts with participating states in order to level the playing field for law-abiding employers and to ensure that employees receive the protections to which they are entitled under federal and state law. Employers that misclassify their employees may not be paying the proper overtime compensation, FICA and Unemployment Insurances taxes, or workers' compensation premiums.

State Case Bank

Commonwealth of Massachusetts v. Universal Drywall, LLC and Richard Pelletier 

Non-Compete Agreements

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People of the State of Illinois v. Check into Cash of Illinois Inc.  (Oct. 25, 2015)

People of the State of Illinois v. Jimmy John's Enterprises LLC (June 8, 2016)

On-Call Scheduling

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According to the U.S. Government Accountability Office, there are approximately 2 million workers "on-call" - a practice in which workers, particularly in the retail industry, are requested to call into their place of employment to see if they will be needed for the day's shift. In some cases, employees are asked to remain "on-call" for a particular day and may be summoned to their place of employment to respond to spikes in work-flow. The model has created greater worker instability and unpredictability. For instance, workers who are not required to report to work on a given day are not paid. Those who are asked to come in must often do so in the face of family considerations, such as child care.  

New York Attorney General Eric Schneiderman conducted an investigation into the retail industries use of on-call scheduling and the likelihood that this pervasive practice violates state laws. Under New York Labor Law, for example, call-in pay provisions require that “[a]n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” 12 NYCRR 142-2.3.

In response to letters sent by the Attorneys General, major retailers such as Abercrombie and Fitch, J.Crew and Pier 1 and others agreed to end the practice and amend their scheduling protocols.  

In 2016, seven other states and the District of the Columbia joined New York in issuing joint letters to other major retail chains over their use of on-call scheduling.

 

Protecting Immigrant Workers

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Discriminatory Treatment

People of the State of Illinois and Illinois Department Of Labor v. Xing Ying Employment Agency et al., No. 15-cv-10235 (N.D. Ill. Apr. 22, 2016)

Immigrant Detainees

State of Washington v. The GEO Group Inc. (Wash. Superior Ct. Pierce Cty., Sept. 20, 2017).

Attorney General Guidance/Advisory Memorandum

Massachusetts OAG Advisory - All Workers Are Entitled to Employment Protections Irrespective of Immigration Status (May 1, 2017).

Systemic Wage Theft - NY OAG Lawsuit Against Domino's Pizza and its Franchisees

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Unfair Competition Law in Labor Enforcement Context

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The People of the State of California v. One Source Facility Solution, Inc., a Corporation, Dilip R. Joshi, an Individual, And Does 1 Through 20, Inclusive (Cal. Supr. Ct. Nov. 2017).