The Biden administration’s Labor Department is empowering career officials across the U.S. to deploy a range of enforcement tools when scouring businesses for wage violations, overturning a Trump-era policy that consolidated approval of such decisions under one politically appointed leader.
Jessica Looman, the principal deputy administrator of DOL’s Wage and Hour Division, earlier this month revoked 2019 instructions issued by the Trump-appointed WHD Administrator Cheryl Stanton, according to an internal memo obtained by Bloomberg Law.
Looman, who arrived on Inauguration Day, is ceding control to regional and district office personnel, who now gain final approval on multiple actions—such as more stringent back-wage settlements—that crack down on employers accused of shorting workers on pay.
Previously, many of these activities required Stanton’s final approval, which sent a chilling effect to the enforcement field that stopped some career officials from pursuing those means and methods, according to current and former DOL officials.
By spurring more frequent and faster use of wage investigation tactics, the changes are likely to deliver a more punitive enforcement philosophy when WHD investigators scrutinize company payroll practices.
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Off-Limit Tools
Looman’s March 8 memo came amid a series of DOL regulatory and policy decisions that voided employer-friendly measures. It delegated to regional administrators, who are career civil servants, authority to greenlight their staff’s use of:
- “Enhanced compliance agreements” in settlements, which generally require more egregious violators to take steps to ensure adherence to wage laws;
- Visa certifications for undocumented workers who are victims of severe workplace crimes;
- Cooperation agreements with state agencies to share information;
- “Sharing letters” between WHD and other government agencies investigating the same workplace; and
- Requests to withhold payments to government contractors who owe workers wages.
Utilizing those means often requires time-sensitive decisions that must be made by the qualified, veteran officials on the ground, not by the national administrator, said Michael Hancock, a former senior WHD official in the Obama administration who worked at the division for two decades.
“If the reality is I can’t decide which of these tools that I can use today, those are effectively tools that aren’t available to me,” said Hancock, now a plaintiff attorney at Cohen Milstein in New York. He called Looman’s memo an “important step in trying to rebuild the relationship between the national office and the field.”
Tyson Foods Inc., Pilgrim’s Pride Corp., Hormel Foods Corp., and other top poultry processors must face antitrust claims over an alleged industrywide plot to drive down the wages of their largely immigrant workforce, a federal judge in Maryland ruled Thursday.
Judge Stephanie A. Gallagher, who tentatively tossed the case last year, said this time around that the plaintiffs—chicken plant employees paid by the hour—can lead a lawsuit on behalf of all poultry workers, including turkey plant employees and those on salary. They all allegedly felt the scheme’s impact similarly, the judge said.
The suit “sufficiently pled the existence of a singular poultry labor market” affected “by the same exact anti-competitive conduct,” Gallagher wrote. That suggests the “plaintiffs have a sufficient personal stake” in the case, even with respect to “class members from slightly different backgrounds,” she said.
The ruling clears the way for the proposed class action to move forward in the U.S. District Court for the District of Maryland with claims that the poultry processors colluded to depress pay through illegal data exchanges and annual secret meetings at a Florida hotel.
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Handley Farah & Anderson PLLC, Cohen Milstein Sellers & Toll PLLC, and Hagens Berman Sobol Shapiro LLP are interim co-lead counsel for the plaintiffs, who are also represented by Lockridge Grindal Nauen PLLP, Keller Rohrback LLP, Berger Montague PC, Kramon & Graham PA, Hardin & Hughes LLP, Butler Farm & Ranch Law Group PLLC, Robins Kaplan LLP, the Dampier Law Firm PC, and Shapiro Sher Guinot & Sandler.
A participant in a 401(k) plan run by New York Life Insurance Co. has sued the company and plan fiduciaries alleging violations of their ERISA responsibilities for two company retirement plans.
“This suit is about corporate self-dealing and the prohibited transfer of employees’ retirement assets to defendants at the expense of the retirement savings of company employees and its agents,” said the March 2 complaint filed in a U.S. District Court in New York in the case of Stuart Krohnengold vs. New York Life Insurance Co. et al.
Mr. Krohnengold is a participant in the New York Life Insurance Co. Employee Progress-Sharing Investment Plan, and he also is suing, as part of a class action claim, to represent the New York Life Agents Progress-Sharing Investment Plan. The former had assets of $3.51 billion and the latter had assets of $846 million, both as of Dec. 31, 2019, and both according to the latest Form 5500s.
Mr. Krohnengold’s complaint also accused the defendants of offering proprietary products “earning New York Life and its affiliates windfall profits at the expense of the retirement savings of New York Life employees and its agents.”
Cohen Milstein Sellers & Toll PLLC represents the proposed class.
WHAT TO KNOW:
- Part of a larger $104 million deal, first reached by consumers.
- Comes days after tentative approval of wholesaler settlement.
The consumers leading a proposed chicken price-fixing class action over an alleged industrywide scheme revealed a $99 million settlement with Tyson Foods Inc., part of a larger $104 million “icebreaker” deal they disclosed in a Chicago federal court.
The agreement, which includes a cooperation pledge, is the first between the consumer plaintiffs and the poultry processors they targeted in the U.S. District Court for the Northern District of Illinois, where the consolidated case also includes antitrust claims on behalf of retailers and wholesalers.
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The lawsuit accuses the top U.S. chicken processors of inflating prices through long-term supply reductions, achieved by culling flocks of “breeder” hens, and through an index run by Eli Lilly & Co. subsidiary Agri Stats Inc. The dispute recently added bid rigging claims by restaurant chains including Boston Market, Johnny Rockets, and Subway.
The poultry processors have also faced antitrust claims over alleged schemes to fix the wages of their mostly immigrant workforce and drive down compensation for the permanently indebted “modern-day sharecroppers” who raise chickens for them.
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The consumers are represented by Hagens Berman Sobol Shapiro LLP and Cohen Milstein Sellers & Toll PLLC.
New York Life Insurance Co. was sued by a former employee who says the company engages in self-dealing and earns “windfall profits” from a pair of retirement plans covering tens of thousands of employees and insurance agents, according to a proposed class action filed in federal court in Manhattan.
Stuart Krohnengold’s lawsuit, filed in the U.S. District Court for the Southern District of New York, accuses the insurer of improperly profiting off its workers’ retirement savings by defaulting certain retirement plan participants into an undiversified general account insurance fund. This fund—called the Fixed Dollar Account—isn’t a permissible 401(k) default investment, and it allows New York Life and its affiliates to earn “enormous profits and billions of dollars to be used for its own business purposes while exposing most of the Plans’ assets to New York Life’s credit risk,” he claims.
Krohnengold also accuses New York Life of offering its own affiliated investment products in the plans without properly considering lower cost and better performing alternatives from competitors. These two failures cost plan participants hundreds of millions of dollars in lost retirement savings, he claims.
The two New York Life retirement plans hold a combined $4.3 billion and cover nearly 30,000 people, according to the complaint.
The case is one of dozens of recent lawsuits challenging financial companies that include affiliated investment products in their 401(k) plans. Several companies have signed multimillion-dollar settlements, including Reliance Trust Co. ($39.8 million), McKinsey & Co. ($39.5 million), SunTrust Banks Inc. ($29 million), Fidelity Investments ($28.5 million), BB&T Corp. ($24 million), and Deutsche Bank ($21.9 million).
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Cohen Milstein Sellers & Toll PLLC represents the proposed class.
Chipotle Mexican Grill Inc. has agreed to pay $15 million to resolve class claims that the restaurant chain improperly failed to pay overtime to management trainees based on a controversial U.S. Department of Labor overtime expansion rule, according to a motion filed Friday in New Jersey federal court.
In what would end a legal battle that has stretched across the country, plaintiffs and former Chipotle employees Carmen Alvarez and Asher Guni urged the court to sign off on the agreement, citing the risks of further litigating “novel” legal issues surrounding the DOL rule and a Texas federal court order barring the agency from implementing it.
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The overtime rule, which was slated to take effect in December 2016, would have doubled the salary threshold for executive, administrative and professional workers to be exempt from overtime pay requirements. The DOL’s revision raised the salary threshold from $23,660 to $47,476 a year and created an index for future increases.
Several months after U.S. District Judge Amos Mazzant blocked the DOL from enforcing the rule, Alvarez in June 2017 initiated the action alleging Chipotle had misclassified her and other so-called apprentices as exempt from overtime pay requirements. Alvarez claimed that they were entitled to overtime pay under the DOL rule.
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Against that backdrop, the parties reached a settlement that is expected to benefit about 4,838 workers, the brief said. The proposed collective comprises people who worked as apprentices in New Jersey from June 7, 2014 to July 15, 2019, and in all other states — except for California, New York and Texas — from June 18, 2017 to Aug. 25, 2020, the brief said.
The plaintiffs are represented by Justin M. Swartz and Melissa Lardo Stewart of Outten & Golden LLP, Joseph M. Sellers of Cohen Milstein Sellers & Toll PLLC and Glen D. Savits of Green Savits LLC.
The complete article can be accessed here.
Lawsuit cites product executive’s qualms over figures provided to advertisers
A Facebook employee warned that the company reported revenues it “should have never made” by overstating how many users advertisers could reach, according to internal emails revealed in a newly unsealed court filing.
The world’s largest social media company has since 2018 been fighting a class-action lawsuit claiming that its executives knew its “potential reach metric”, used to inform advertisers of their potential audience size, was inflated but failed to correct it.
According to sections of a filing in the lawsuit that were unredacted on Wednesday, a Facebook product manager in charge of potential reach proposed changing the definition of the metric in mid-2018 to render it more accurate.
However, internal emails show that his suggestion was rebuffed by Facebook executives overseeing metrics on the grounds that the “revenue impact” for the company would be “significant”, the filing said.
The product manager responded by saying “it’s revenue we should have never made given the fact it’s based on wrong data”, the complaint said.
“Facebook knew for years its potential reach was misleading, and concealed that fact to preserve its own bottom line”
Lawsuit against Facebook.
Several other employees echoed his concerns, with one writing that the “status quo in ad reach estimation and reporting is deeply wrong”, according to the filing, parts of which had been initially sealed largely on the grounds that they were commercially sensitive for Facebook.
The lawsuit, which was filed in northern California in 2018 by a small-business owner, alleges that Facebook knowingly included fake and duplicate accounts in its potential reach metric, misleading unwitting advertisers.
It cites research showing Facebook had suggested potential reach in certain US states and demographics that was greater than the actual populations. A Financial Times investigation in 2019 found similar discrepancies in Facebook’s ads manager, an online tool to help advertisers build campaigns.
The lawsuit accuses the former president of conspiring with two extremist groups to block the Electoral College vote count.
Rep. Bennie Thompson, D-Miss., and the NAACP filed a lawsuit Tuesday against former President Donald Trump and Rudy Giuliani, accusing them of conspiring with two extremist groups to block the presidential vote count by storming the U.S. Capitol.
The lawsuit, the first over the Capitol riot to name Trump, said the attack was “the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College.”
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Thompson and the NAACP said Trump, Giuliani, the Proud Boys and the Oath Keepers shared a common goal “of employing intimidation, harassment, and threats” to stop the vote count. The riot was “a direct, intended, and foreseeable result” of the conspiracy, it said.
Their suit invoked the Civil Rights Act of 1871, commonly known as the Ku Klux Klan act, which allows lawsuits against government officials for claims that they conspired to violate civil rights. It was filed in U.S. District Court in Washington by a law firm specializing in such cases, Cohen Millstein Sellers & Toll.
Attorneys at Cohen Milstein and the NAACP are representing a Democratic lawmaker who sued former President Donald Trump and others on Tuesday for allegedly causing the deadly Capitol riot in January and violating the Reconstruction-era Ku Klux Klan Act.
Rep. Bennie Thompson, a Mississippi Democrat who chairs the House Homeland Security Committee, said he expects other lawmakers to join his case against Trump, the ex-president’s personal attorney Rudy Giuliani and two far-right extremist groups, the Proud Boys and the Oath Keepers. He said litigation in D.C. federal court was necessary after the Senate acquitted Trump in his second impeachment trial Saturday.
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Senate Minority Leader Mitch McConnell, R-Ky., in a floor speech after the acquittal vote called the former president “practically and morally responsible for provoking the events” of Jan 6. However, he said Trump should face accusations in the courts rather than a post-presidency impeachment trial, which most Republicans called unconstitutional.
“We have a criminal justice system in this country,” McConnell said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”
Thompson said his lawsuit aims to do just that, relying on a rarely used provision of an 1871 law meant to protect civil rights and federal officials amid harassment and attacks by the KKK Section 1985(1) of Title 42 creates civil liability for conspiracies to interfere with federal officials carrying out their duties.
“The congressman is intending to show that no one is above the law,” Cohen Milstein Sellers & Toll PLLC executive committee chair Joseph M. Sellers told Law360. “It is quite clear that these four defendants all took steps with the common purpose of interfering with the ability of Congress to ratify the election.”
The veteran civil rights attorney said that under D.C. Circuit precedent, a conspiracy does not require showing communication among the defendants but simply proving they “have taken one or more actions in the pursuit of a common plan or purpose.”
The complaint alleged a “carefully orchestrated” and “unified plan to prevent the counting of Electoral College votes.” It said combative rhetoric by Trump and Giuliani, combined with a campaign of unproven and discredited claims about massive election fraud, had a “natural, foreseeable and intended consequence.”
The lawsuit also described how Thompson listened to rioters pounding on the House chamber’s doors as he lay on the floor and heard a gunshot.
“Thompson feared for his life and worried he might never see his family again,” the complaint said, seeking to establish an injury that gives him standing to sue. He requested a jury trial, an injunction, and compensatory and punitive damages.
Sellers said he regularly deals with other provisions in Section 1985 but had never thought much about its rarely invoked first paragraph until Thompson and the NAACP sought a legal framework for their case. He said it rarely had been raised after some litigation in the late 1800s.
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That argument comes after Trump tweeted Dec. 19, “Big protest in D.C. on January 6th. Be there, will be wild!” On Jan. 6, Trump and Giuliani addressed the crowd on the Ellipse in front of the White House shortly before rioters stormed the Capitol. Democrats and some Republicans said Trump’s inflammatory rhetoric amounted to inciting an insurrection.
Thompson is represented by Janette Louard and Anthony P. Ashton of the NAACP and Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC.
FOR IMMEDIATE RELEASE:
Lawsuit Alleges Violation of the “Ku Klux Klan Act,” a Civil War-Era Statute Prohibiting Interference with Congress’ Constitutional Duties.
Filed by NAACP and Cohen Milstein Sellers & Toll, Lawsuit Also Names Proud Boys and Oath Keepers.
WASHINGTON D.C.—Mississippi Congressman Bennie Thompson filed a federal lawsuit today accusing Donald J. Trump, Rudy Giuliani, the Proud Boys and Oath Keepers of conspiring to incite a violent riot at the U.S. Capitol on January 6th, with the goal of preventing Congress from certifying the 2020 presidential election. The lawsuit alleges that, by preventing Congress from carrying out its official duties, Trump, Giuliani and the hate groups directly violated the 1871 Ku Klux Klan Act.
Following acquittal by the U.S. Senate in the second impeachment trial, Minority Leader Mitch McConnell openly encouraged litigation against Trump, saying: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”
The insurrection was the result of a carefully orchestrated plan by Trump, Giuliani and extremist groups like the Oath Keepers and Proud Boys, all of whom shared a common goal of employing intimidation, harassment and threats to stop the certification of the Electoral College. They succeeded in their plan. After witnessing Capitol police barricading the doors of the House chamber with furniture, Congressman Thompson and fellow lawmakers donned gas masks and were rushed into the Longworth House Office Building where they sheltered with more than 200 other representatives, staffers and family members.
The lawsuit was filed Tuesday morning in Federal District Court in Washington, D.C. by the NAACP and law firm Cohen Milstein Sellers & Toll. Other members of Congress, including Representatives Hank Johnson (D-GA) and Bonnie Watson Coleman (D-NJ), intend to join the litigation as plaintiffs in the coming days and weeks.
The coup attempt was a coordinated, months-long attempt to destroy democracy, to block the results of a fair and democratic election, and to disenfranchise millions of ballots that were legally cast by African-American voters. The NAACP is representing Congressman Thompson in this lawsuit because the events on January 6th were just one more attempt by Donald Trump and his allies to make sure that African-American voters were disenfranchised – this time, by trying to stop members of Congress from doing their job and certifying the election results.
“January 6th was one of the most shameful days in our country’s history, and it was instigated by the President himself. His gleeful support of violent white supremacists led to a breach of the Capitol that put my life, and that of my colleagues, in grave danger. It is by the slimmest of luck that the outcome was not deadlier. While the majority of Republicans in the Senate abdicated their responsibility to hold the President accountable, we must hold him accountable for the insurrection that he so blatantly planned. Failure to do so will only invite this type of authoritarianism for the anti-democratic forces on the far right that are so intent on destroying our country,” said Congressman Bennie Thompson (D-MS).
“Donald Trump needs to be held accountable for deliberately inciting and colluding with white supremacists to stage a coup, in his continuing efforts to disenfranchise African-American voters. The insurrection was the culmination of a carefully orchestrated, months-long plan to destroy democracy, to block the results of a fair and democratic election, and to disenfranchise hundreds of thousands of African-American voters who cast valid ballots. Since our founding, the NAACP has gone to the courthouse to put an end to actions that discriminate against African- American voters. We are now bringing this case to continue our work to protect our democracy and make sure nothing like what happened on January 6th ever happens again,” said Derrick Johnson, President and CEO, NAACP.
“The insurrection at the Capitol did not just spontaneously occur—it was the product of Donald Trump and Rudy Giuliani lies about the election. With the Senate failing to hold the President accountable, we must use the full weight of the legal system to do so. The judicial system was an essential bulwark against the President during his time in office, and its role in protecting our democracy against future extremism is more important than ever,” said Joe Sellers, Partner at Cohen Milstein, Chair of the firm’s Executive Committee and Chair of the Civil Rights & Employment Practice Group.
The lawsuit alleges that Trump and Giuliani violated 42 U.S.C. 1985(1), often referred to as the Ku Klux Klan Act, which was passed in 1871 in response to KKK violence and intimidation preventing Members of Congress in the South during Reconstruction from carrying out their constitutional duties. The statute was intended specifically to protect against conspiracies.
In the months leading up to the insurrection, Trump and Giuliani allegedly mobilized and prepared supporters for an attack. In fact, Trump acknowledged the potential for violence and bloodshed if the election results were not overturned, tweeting: “People are upset, and they have a right to be. Georgia not only supported Trump in 2016, but now. This is the only State in the Deep South that went for Biden? Have they lost their minds? This is going to escalate dramatically. This is a very dangerous moment in our history….”
As Electoral College certification grew closer, Trump encouraged his supporters to descend on Washington that day, tweeting “Big protest in DC on January 6th. Be there, will be wild!” Extremist groups responded to Trump’s and Giuliani’s rhetoric. In early January, Proud Boys leader Joseph Biggs said, “Every lawmaker who breaks their own stupid Fucking laws should be dragged out of office and hung.” Members of the Oath Keepers worked together to find a hotel that had “a good location and would allow us to hunt at night if we wanted to.”
On the day of the insurrection, Trump and Giuliani spoke to participants at the “Save America” rally, which both the Proud Boys and Oath Keepers attended. Both Trump and Giuliani allegedly made incendiary comments designed to incite the crowd and direct them to take action to thwart Congress’ ability to certify the election, including:
- “If we’re right, a lot of them will go to jail. So let’s have trial by combat …”
- “So we are going to … walk down Pennsylvania Avenue… we’re … going to try and give them the kind of pride and boldness that they need to take back our country.”
Shortly after, rioters breached the Capitol, including members of the Proud Boys and Oath Keepers. Video footage shows a member of the Proud Boys breaking through a window with a shield captured from a U.S. Capitol police officer. The militia members then began to roam the hallways, using earpieces and walkie talkies to coordinate and communicate as they enacted their plan to hunt for Members of Congress, with some even bringing plastic handcuffs in preparation for detaining captured elected officials.
Once inside, the rioters made clear they were acting at the behest of President Trump to interrupt the certification process, with one saying, “We were invited here by the President of the United States.”
Eventually, the rioters began pounding on the doors where Congressman Thompson and the House of Representatives were voting to certify the Electoral College. Behind the barricaded doors, Thompson heard the rioters trying to break into the chamber refer to Speaker Pelosi as a “bitch,” saying they wanted to get their hands on her and refer to Vice President Pence as a person who had betrayed President Trump.
Even as the insurrection was occurring, Giuliani made phone calls to Members of Congress insisting that they do everything they could to “slow down” the Electoral College vote count in Congress, again referring to unfounded claims of voter fraud. Later in the evening, President Trump tweeted, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”
The NAACP has, since its founding, represented individuals in court to eliminate race-based discrimination. Throughout the 2020 election cycle, and after the election, the NAACP utilized the judiciary to protect the rights of African-American voters and ensure that their ballots were counted. This case is a continuation of that work.
About NAACP:
Founded in 1909 in response to the ongoing violence against Black people around the country, the NAACP is the largest and most pre-eminent civil rights organization in the nation. We have over 2,200 units and branches across the nation, along with well over 2M activists. Our mission is to secure the political, educational, social, and economic equality of rights in order to eliminate race-based discrimination and ensure the health and well-being of all persons. In media attributions, please refer to us as the NAACP.
NOTE: The Legal Defense Fund, also referred to as the NAACP-LDF, was founded in 1940 as a part of the NAACP, but separated in 1957 to become a completely separate entity. It is recognized as the nation’s first civil and human rights law organization, and shares our commitment to equal rights.
About Cohen Milstein Sellers & Toll:
Cohen Milstein Sellers & Toll PLLC is recognized as one of the premier law firms in the country handling major, complex plaintiff-side litigation. With more than 100 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa. and Raleigh, N.C.
Media Contact:
Doug Cohen / 617.595.7160
doug.cohen@berlinrosen.com