NYC’s Mandatory Collective Bargaining Agreements in Fast-Food Shops?

SAMUEL ESTREICHER, ZACHARY FASMAN

NYU law professor Samuel Estreicher and adjunct professor Zachary Fasman comment on two bills passed by the New York City Council that would mandate detailed and extensive labor protections for fast-food workers in New York City. Professors Estreicher and Fasman praise the intent behind the laws but explain why the City Council is not the place where binding agreements governing private workplaces in the City should be enacted.

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Sterling National Bank v. Block

Dockets: 19-2300, 19‐3122, 19‐3235

Opinion Date: January 5, 2021

Judge: HAMILTON

Areas of Law: Business Law, Contracts, Corporate Compliance

Sterling Bank purchased Damian Services. The stock purchase agreement set up a two-million-dollar escrow to resolve disputes arising after the purchase and established comprehensive rights, obligations, remedies, and procedures for resolving disputes. After the purchase, a former Damian employee called some of Damian’s clients to tell them of a billing practice that the sellers had instituted years earlier. When Sterling learned of the situation, it investigated with the help of a forensic accountant. Sterling concluded that under the sellers’ management, Damian had overcharged its clients by over one million dollars. Sterling refunded the overpayments to its current clients, then unsuccessfully demanded indemnification from the escrow, claiming that the sellers had misrepresented Damian’s liabilities and vulnerability to litigation. The district court granted the sellers summary judgment, reasoning that Sterling missed the deadline for claiming indemnification under the stock purchase agreement. The court denied the sellers’ request for statutory interest on the escrow money. The Seventh Circuit reversed. Whether Sterling’s demand for indemnification was late depends on disputed facts. Even if the demand was late, however, the agreement’s elaborate terms provide that any delay could be held against Sterling only “to the extent that [sellers] irrevocably forfeit rights or defenses by reason of such failure.” Undisputed facts show that the sellers have not irrevocably forfeited any claims or defenses.

Kellogg v. Ball State University

Docket: 20-1406

Opinion Date: January 5, 2021

Judge: KANNE

Areas of Law: Civil Rights, Education Law, Labor & Employment Law

Kellogg testified that when the Indiana Academy hired her as a teacher in 2006, its director, Dr. Williams, told her that she “didn’t need any more [starting salary, $32,000], because he knew [her] husband worked.” In 2017, Kellogg complained to the Dean of Ball State’s Teacher’s College, which oversees the Academy, that she received less pay than her similarly-situated male colleagues. The Dean responded that “[t]he issue [wa]s salary compression, which means those who [we]re hired after [Kellogg] began at a higher salary.” The Dean also noted that Kellogg’s salary increased by 36.45% during her time at the Academy while her colleagues’ salaries increased by less. In Kellogg’s 2018 lawsuit, the district court granted the Academy summary judgment, reasoning that there were undisputed gender-neutral explanations for Kellogg’s pay. The Seventh Circuit reversed. Williams’s statement contradicts the Academy’s explanations for Kellogg’s pay and puts them in dispute. It does not matter that Williams uttered the statement long ago, outside the statute of limitations period. Under the paycheck accrual rule, Williams’s statement can establish liability because it affected paychecks that Kellogg received within the limitations window. Kellogg can rely on Williams’s statement to put the Academy’s explanations in dispute.

Lothridge v. Saul

Docket: 20-1269

Opinion Date: January 5, 2021

Judge: HAMILTON

Areas of Law: Public Benefits

Lothridge applied for disability insurance benefits and supplemental security income in 2013 when she was 33 years old. She asserted that she was disabled by fibromyalgia, COPD, asthma, and hypertension. She was diagnosed with bipolar disorder, learning disabilities, significant problems with decision-making, moderate problems with social functioning, and problems with remote memory. She had worked as a CNA, a daycare worker, a cashier, and a telemarketer. She had tried, unsuccessfully. to earn her GED. Hip and back pain caused her to stop working in 2009. After an ALJ denied her application, a district judge remanded for further explanation of how the ALJ considered Lothridge’s periodic non-compliance with treatments. The ALJ again denied the application, finding that Lothridge could still perform light work with certain limitations. A district judge affirmed. The Seventh Circuit vacated. In assessing Lothridge’s impairments using the five-step disability analysis, the ALJ found moderate limitations in concentration, persistence, and pace. In determining her residual functional capacity, the ALJ failed to take those limitations into account. The jobs that the ALJ determined that Lothridge could still perform would require the ability to stay on-task for at least 90% of the workday and would have little tolerance for tardiness or absences. The ALJ made no determination of whether Lothridge is capable of meeting these requirements.