Tag Archive for 'new york'

Sirius XM Radio Settles Unpaid Internship Lawsuit

Sirius XM Radio has entered into a settlement agreement to pay up to $1.3 million to its interns who claim that the company was in violation of U.S. labor laws by not compensating its interns. The plaintiffs had performed work on a number of Sirius projects, including the Howard Stern Show, and stated that they had worked up to 40 hours a week without pay. They allege that this violates the Fair Labor Standards Act (FLSA) as well as the minimum wage law in New York State.

The principal test that courts apply in this type of case is whether internships were created mainly to provide an education to young people in a certain field. This is in contrast to the use of unpaid workers for the same duties carried out by employees. According to federal court papers filed on Monday, August 3rd, Sirius still thinks that it was not in violation of any laws by having an unpaid intern program. However, in an effort to avoid expensive litigation, the company has agreed to make payments to over 1,800 previous interns.

The settlement, which was presented by Sirius, and is pending approval by a judge, was announced one month following rulings made by the 2nd U.S. Circuit Court of Appeals in New York. Previous cases with similar decisions include those against Fox Searchlight Pictures Inc. and The Hearst Corp., in which the appeals court also determined that the legality of unpaid internships is dependent on whether they are relevant to the education of interns.  Paid internsihps

After the Fox case was filed in 2013, many other comparable lawsuits followed, including claims against Warner Music Group Corp., which entered into an agreement in June to pay hundreds of interns over $4.2 million. Prior to that, there were even more substantial settlements by Comcast Corp’s NBCUniversal, Condé Nast, and Viacom Inc.

In the complaint against Sirius, an intern for the Howard Stern Show named Melissa Tierney claimed that for a period of four months, she ran errands, placed orders, collected breakfast orders and carried out other menial tasks for Stern’s crew without pay. Her complaint cited the FLSA, which is explained by the Labor Department using a six-point test to decide whether an internship can be legally unpaid. According to the Department of Labor Wage & Hour Division, if the following six factors are present, then there is no employment relationship under the FLSA, and the Act’s minimum wage and overtime provisions are inapplicable to interns. The six factors are:

  1. The internship resembles training that would be provided in an educational environment;
  2. The internship experience is intended to be for the intern’s advantage;
  3. The intern does not take the place of the usual employees, but is closely managed by current staff;
  4. The employer that gives the training does not benefit from the work performed by the intern; in fact, its operations may be hindered;
  5. The intern is not guaranteed a job at the end of the internship; and
  6. There is an understanding that the intern is not to receive compensation for any work performed during the internship.

Given the fact that many of these factors were not present during the plaintiffs’ internship, the court ruled in favor of the interns. It appears that several large media companies are exploiting interns’ desire to work for them by requiring them to work really hard and to work long hours without pay. Some interns have said that they were even promised a job at the conclusion of the internship, but were never offered a position. In light of the recent settlements, hopefully, large media companies will think twice before taking advantage of interns.

NY Court Protects Rent-Controlled Leases from Bankruptcy

Most laws favor homeowners over renters. This is obvious from even a cursory glance at bankruptcy statutes or the federal tax code. Tenants are often hesitant about filing bankruptcy because they fear losing their homes. A recent New York court case could change that.

NY Court Protects Rent-Controlled Leases from BankruptcyMary Santiago-Monteverde was not very happy in 2001. She had incurred heavy credit card debt after her husband passed away from extensive health problems. Santiago-Monteverde filed for bankruptcy. Shortly after, Santiago-Monteverde’s landlord approached the bankruptcy trustee and offered to buy the lease of the apartment she was living in. Santiago-Monteverde had lived in the East Village with her late husband for over forty years and she was not going to give it up without a fight.

Her attorneys claimed the apartment was a form of “local public assistance benefit” and thus legally exempt from the bankruptcy proceedings. Bankruptcy and District court initially ruled against the tenant. In a surprising 5-2 decision though, Santiago-Monteverde won on appeal. In New York, rent-controlled leases can be shielded from bankruptcy.

What Does All This Mean?

When a debtor files for bankruptcy, the bankruptcy court appoints a trustee to manage the debtor’s assets. In many cases, the trustee will sell the debtor’s assets to pay off the debts. However, federal law exempts certain property from bankruptcy. Some states offer their own exemptions. If a property is exempted, it means the trustee cannot sell the property and the debtor gets to keep the property, even after the bankruptcy is over. Property is often exempt from bankruptcy so that the debtor can start fresh after bankruptcy is over.

Since homes are often exempted, homeowners may file bankruptcy knowing that part or all of their home equity will be safe. Tenants, on the other hand, have no such luxury. Leases are rarely exempted and it is not usual for landlords to buy back leases, like Santiago-Monteverde’s landlord did. Debtors who rent a home rather than outright purchase a house rarely file for bankruptcy, even when bankruptcy is financially smart.

Santiago-Monteverde’s case found a way around this problem. Even though leases are not exempt, public assistance programs, such as food stamps, are exempt. Public assistance is exempt so that if the debtor has low or no income, the debtor won’t starve. Santiago-Monteverde makes it so that rent-controlled housing is public assistance. In the court’s collective minds, the purpose of rent control is to help low-income peoples, the same purpose that other public assistance programs serve.

Future Consequences

Although this case balances the rights of homeowners and renters, it also opens the doors for further bankruptcy exemptions. If rent control is public assistance because it is designed to help low-income families, what else could qualify as a public assistance exemption? What about income from minimum wage jobs? Or government scholarships and school vouchers?  If Washington bails out a large corporation like GM, and the justification is to prevent workers from losing their jobs, does that make government bailouts public assistance programs?

I applaud that tenants can keep their homes through bankruptcy, but this kind of decision seems like it should come from legislators rather than judges. The latter often cannot control where the slippery slope will end and this case could open doors that judges cannot foresee opening.

New York Criminalizes the Use of GPS for Stalking People

A new law was recently implemented in New York that criminalizes a use of GPS for the purposes of stalking.

GPS stalkingFor the law to apply, the person being followed informs the stalker that such behavior is unwelcome. This requirement conforms to New York’s stalking law, which requires people to let a suspected stalker know that certain kinds of conduct are unwanted.

The Reason for the New Law

The new law, called Jackie’s Law, was implemented in response to the murder of Jackie Wisniewski by her boyfriend two years ago at the Erie County Medical Center. Prior to her demise, Wisniewski discovered a GPS device that her boyfriend had put in her car. However, law enforcement officials were unable to prosecute him for stalking her with a GPS because under the state’s stalking laws, such conduct was not forbidden.

Only if the alleged stalker is told that his or her behavior is unwelcome, and the stalker persists in tracking the victim, are the police then able to charge the person with stalking in the fourth degree. Jackie’s Law is significant in that it removes the burden of filing charges from the victim, and places it upon the police. In so doing, it offers some protection to victims of domestic violence and other types of violence.

Other Uses of GPS Tracking

Not only has GPS technology been used to track victims of domestic violence, but it has also been used by political opponents to discover whether one was residing in a certain political district.

Unfortunately, tracking someone with a GPS device without that person’s knowledge is still legal. And if that person discovers the device, but does not inform the perpetrator that such conduct is unwelcome, then the use of the GPS is still legal.

Potential Changes in the Law

According to recently proposed federal legislation, secretive use of GPS trackers may also soon be criminalized, with the exception of such use by the police, parents of minors, and in certain cases of patients afflicted with dementia or similar illnesses.

Although the new law is an improvement over the previous one, the onus is still on the victim to confront and inform the perpetrator that such behavior is unwelcome. But if the victim is so fearful of the stalker that he or she would prefer to have no contact with him or her, then perhaps the victim could relay those fears to the police, who could then act as the victim’s messenger, and inform the stalker. Then, if the stalker still engages in GPS tracking, the police would be free to press charges.

New York Legalizes Medical Marijuana (with Strings Attached)

New York became the 23rd state to legalize medical marijuana when Governor Andrew Cuomo signed the Compassionate Care Act (CCA) into law. In 2015, New Yorkers who suffer from cancer, AIDs, ALS, Parkinson’s disease, multiple sclerosis, spinal cord damage, epilepsy, and inflammatory bowel disease can use marijuana to help treat their conditions.

medical marijuana in New YorkHowever, the CCA has a number of differences which make it unique compared to medical marijuana programs of other states.

  1. The Department of Health has the power to price the medicine purchased. New York will start with a 7% tax.
  2. Even qualified patients aren’t allowed to smoke marijuana. Patients will be forced to mix marijuana with food, ingest pills, or breathe vapors instead. The only other state which legalizes medical marijuana but prohibits smoking is Minnesota.
  3. New York patients can’t grow their own marijuana. They must buy it from a state regulated dispensary. Finally, physicians who prescribe more than 2.5 ounces will be subject to penalties.

In short, New York will have the most regulated medical marijuana program in the country. Governor Cuomo and state legislators believe the law strikes an appropriate balance between medical need and public health. “Public health” means making sure people don’t abuse marijuana or use it as a gateway drug to more dangerous substances like heroin.

The problem is that the rules don’t correlate with public health. The smoking prohibition looks like a means to protect public health, but bans on tobacco smoking in public areas could easily be extended to marijuana. The ban on smoking will not guard against second-hand smoking. Forcing patients to ingest rather than smoke marijuana will cause patients to spend more money on the drug.

It is also difficult to understand how a tax would prevent addicted potheads from spending all their cash on weed. Given that patients must buy from state approved dispensaries, the CCA looks more like a way for the state to make money than to help sick patients. Of course, any amount of medical marijuana is better than none.

NY Mayor Bloomberg’s Next Target: Cigarette Displays

New York Mayor Bloomberg suffered a defeat when his large soda ban was struck down by State Supreme Court Judge Tingling. The mayor was not deterred by the ruling though, because he now seeks a ban on displays of tobacco products in retail stores. The reasoning behind the proposal is that if children cannot see the tobacco products, they will not be tempted to buy them. The ban would also create a cultural norm. By keeping cigarettes out of sight, smoking would no longer seem normal and children would not seek to emulate such behavior. If a store is found with tobacco products on display, the store could be fined hundreds of dollars. Higher fines would be levied for repeat offenses, with fines going into the thousands.

Given how addictive tobacco is, it would be good public policy to keep children away from cigarettes. The proposed ban is redundant though. Stores are already forbidden by state law from selling cigarettes to children. Since a young person cannot legally buy cigarettes from stores, keeping them out of sight would not be deter anyone under the age of eighteen from asking for a smoke. Mayor Bloomberg would say that the point of the ban is not to keep children from buying tobacco, but to discourage children from smoking when they can legally buy the cigarettes.

Even from that standpoint though, the law does not make sense. Pornography, guns, and liquor are often kept out of children’s sight, but that does not prevent young adults from pursuing them. Indeed, hiding these vices might actually make them more attractive to young people. Children have an unfortunate need to be viewed as “grown up,” and vices which are hidden from youth often become a status symbol of age to the young. Mayor Bloomberg’s proposal would make the problem worse, not better.

The Mayor’s law might pass if it were simply redundant and ineffective. The proposed ban also carries a free speech problem though. Although displaying a product is not the first thing a person might consider speech, making a product visible does mold a store or shop’s public image. Free speech is a citizen’s right to express themselves. Stores and other businesses have a right to express what they wish to sell and the right to present themselves to the public in any manner they wish. Of course, the display ban probably would not cut into business revenue since addicts will seek out tobacco like a man dying out hunger will seek out food. However, individual rights have never been tied to profits. Rights are an end, not a means to more money.

Mayor Bloomberg’s large soda ban was struck down by Judge Tingling partly because it violated the separation of powers. The soda ban was mainly a creation of the Board of Health, an executive committee appointed by the Mayor of New York. The New York City Council, the city’s actual legislative body, needs to be more involved in the process more. The mayor might not be fond of individual rights, but ignoring the legislative process will harm both businesses and children.



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