Practicing labor and employment law is hard work. Here’s a manual to learn how Fordham Law alumni and faculty are making it look easy.
… Demand Better of the On-Demand Economy
Clients at nail salons choose from innumerable colors for their fingers and toes, but they’re often left unaware of the darker shade of the industry: a booming market of exploited manicurists. Locked into grueling, low-paying work, immigrant women at nail salons frequently get cheated while their owners get rich. In a fight that inspired a multipart New York Times series, the manicurists of Envy Nails in Harlem filed a class-action lawsuit against their employer that won them a settlement for withheld wages, thanks in part to Alison Genova ’13.
Working on the team at Virginia & Ambinder that handled the suit, Genova assisted in preparing clients for deposition, defending those depositions, and helping draft the motion for summary judgment. “Industries like nail salons that overwhelmingly employ immigrant workers are particularly susceptible to abuse,” she says.
Since starting at the firm after graduation, Genova has seen wage-and-hour litigation explode as lawyers and judges wrap their heads around the new “on-demand” economy, where workers may miss out on minimum wage, overtime, and other benefits because they are classified as independent contractors. Genova has fought to retrieve wages for employees hoodwinked by this sleight of hand, and for other abused workers, such as home health aides who sometimes pull 24-hour shifts for scant compensation.
Helping disenfranchised workers has been a focus for Genova since she interned in district attorneys’ offices while at Fordham Law. “Many of these individuals do not know their rights and do not know how to use the criminal and civil legal systems to protect themselves,” says Genova, who won Fordham’s Archibald R. Murray Public Service Award. “They’re the hardest workers but are readily taken advantage of due to their socioeconomic status.”
For all the work she has done on behalf of workers, Genova has an equitable view of the employer-employee relationship, or at least, of its potential. She wants to see labor law evolve so that both sides will prosper. “The future we face as lawyers in this field is to try to refine labor laws so that new businesses can succeed, but not at the expense of fair and legal labor practices.”
… Do Right by Employers and Employees
In the 1980s, a company that Joseph DeGiuseppe ’77 represented closed down a plant, forcing everyone who worked there out of a job. DeGiuseppe did what he says labor and employment lawyers like him are supposed to do: brought the workers and their former bosses together to reach a severance agreement that benefited both sides. “The employees came up afterwards and thanked us,” he says. “It’s satisfying to help an employer do the right thing.”
DeGiuseppe, who was initially interested in becoming a social worker before deciding to switch to law, has strived to do the right thing through four decades of change in labor, employment, and immigration law. Fresh out of law school, he helped soon-to-be-Dean John Feerick ’61 edit his book on National Labor Relations Board representation law, which led to a job initially representing unions atFeerick’s rapidly rising firm, Skadden Arps. There DeGiuseppe became the go-to expert on the employment-at-will rule after writing an oft-cited law review article on the topic for the Fordham Urban Law Journal (for which he was an editor-in-chief in the publication’s fledgling days). In ensuing years, his focus shifted to representing Fortune 500 companies along with the ever-changing field, from the rise of employment verification cases after the 1986 Immigration Reform and Control Act to the many employment discrimination lawsuits resulting from the Civil Rights Act of 1991.
More recently, representing both large and small employers as head of the labor and employment and immigration practice groups at Bleakley Platt, DeGiuseppe has adapted to the new legal reality of working with insurance companies in the passenger seat when clients carry employment practices liability insurance protecting them against potentially significant liability resulting from employment discrimination lawsuits. He has also seen a swell of wage-and-hour class-action litigation in the past few years as employers have struggled to keep up with the application of the Fair Labor Standards Act to the various types of employment relationships in today’s service economy (among other factors). As for the future, he expects to see an increase in sexual orientation discrimination lawsuits and litigation revolving around employees and their free speech rights on social media. “In one recent case an employee called an employer a very derogatory name and it was upheld as free speech,” says DeGiuseppe. “Labor law is much more complicated than people think.”
… Organize Workers for the 21st Century
Having already been fired from two jobs for trying to form unions there, Daniel Gross ’07 knew what he was getting into when he helped create the Starbucks Workers Union in 2004. What he didn’t expect was to discover his calling—not as a barista, but as the eventual founder of Brandworkers, a nonprofit dedicated to helping retail and food workers get a better deal. He formed the organization almost immediately after learning all he could about labor law at Fordham Law. “The anti-union lawyering I experienced drove me to want to understand more about the law,” says the Stein Scholar alumnus and co-author of Labor Law for the Rank and Filer: Building Solidarity While Staying Clear of the Law (2008). “I wanted to develop the skills to go into battle with these forces.”
Brandworkers has recovered nearly a million dollars in unpaid wages and discrimination compensation for the immigrant employees routinely exploited at food production jobs. The model it has developed over 10 years rallies marginalized workers to skip the red tape of forming a government-certified, employerapproved union and jumping right into the nitty-gritty: solidarity, legal tools, and direct action campaigning. In one of its biggest victories, Brandworkers won $577,000 in withheld wages and a binding code of workplace conduct from Flaum Appetizing after organizing the company’s workers and mounting a boycott joined by 120 New York City groceries and a major distributor.
Gross says alternative approaches like those practiced by Brandworkers will be essential for workers facing potentially higher levels of wage theft, anti-immigrant abuse, and health and safety hazards in an American political climate less friendly to organized labor. “Now more than ever, with union membership on the decline, it’s absolutely necessary that workers lead themselves and find new ways to revitalize the labor movement,” he says. “The traditional model of collective bargaining isn’t delivering what workers deserve, and they deserve nothing but the best.”
… Make Higher Education Work for Everyone
Any lawyer who handles discrimination cases on behalf of an employer gets asked the question sooner or later: How can you be fair when you’re drawing a paycheck? For Cheri Burgess ’93, who heads up discrimination and harassment investigations among other diversity- and compliance-related duties at Princeton University, it’s not a matter of taking sides, but of making the process itself fair. “I make sure people have the opportunity to use the process and be heard,” she says. “I’m an advocate for access.”
As Princeton University’s director for institutional equity and equal employment opportunity, Burgess sees her job as more proactive than reactive. She strives to head off harassment and discrimination by coordinating the school’s affirmative action plan and developing and overseeing policies, procedures, and initiatives to infuse equal opportunity, diversity, and inclusion throughout the school. “I am fortunate to work in an organization where the top leadership fully supports these efforts as central to the mission. For some in roles like mine, half of the job is persuading leaders of the importance of this work. By not having to make the case for diversity and inclusion, I get to focus on the work itself.”
After graduating from Fordham Law, Burgess spent her first two years earning her employment law chops at Cullen and Dykman. From there, she moved on to the New York City Board of Education, where she spent five years as a staff attorney honing a portfolio that blended employment and education law issues. She then shifted to the corporate setting, spending nearly four years as an equal employment opportunity specialist for Home Depot USA, and three years after that at her own employment law practice—before her path ultimately led her to the job at Princeton in 2006.
Despite the changes the Trump administration may have in store for labor and education policy, Burgess has confidence that Princeton, other colleges and universities, and corporate America have too much of a stake in diversity and equity to brush it all away. “Higher education institutions and many large corporations have already gone far beyond the minimal obligations that they’ve had to comply with,” she says. “Regardless of what happens on the regulatory front, I see Princeton continuing to make progress in terms of equity, diversity, and inclusion. We’re firmly positioned that this work is vital to the institution’s aspiration for academic excellence and the maintenance of Princeton’s leadership position in higher education, and that’s not going away.”
… Help a City Help Its Workers
Ever since she helped campus custodians form a union and advocated for cafeteria workers as an undergrad at Wesleyan University, Sarah Leberstein ’08 has been passionate about worker’s rights. Little surprise then that, after six years as an organizer for the Service Employees International Union and eight years as a staff attorney at the National Employment Law Project, she should come aboard New York City’s Office of Labor Policy and Standards.
Created last year by the City Council and housed in the city’s Department of Consumer Affairs by Mayor Bill de Blasio, the OLPS enforces key municipal workplace laws and serves as a central hub for information, outreach, and policy on issues that impact workers in the city. It’s also a multifaceted dream job for someone who went to Fordham to learn how to get the law on the side of workers. “Getting a law degree gave me an opportunity to continue doing the good work I’d started on behalf of working people but with an expanded set of skills and expertise,” says Leberstein.
Leberstein says one of her main goals at OLPS this year will be to work on policy to help home-care and domestic workers, a segment of the workforce she focused on at the NELP. She’s also spreading the word about the city’s paid sick days and commuter benefits laws while keeping the communication lines open both ways to get new ideas about how to address other issues facing low-wage and vulnerable workers. The research program she’s rolling out will generate data on the city’s workforce and demographics, finding problematic industries that might require intervention.
That OLPS happened to accelerate to full operation just as President Trump took office was a fortunate bit of just-when-they-need-us-most timing. “The erosion of workers’ rights at the federal level and, relatedly, the attacks on immigrant workers and sanctuary cities, are among the biggest issues our office will face and probably the predominant concern for many low-wage and vulnerable workers in the U.S. now,” says Leberstein. “This new climate presents significant challenges to our work and also makes municipal labor standards offices like ours an even more critical resource for workers.”
… Defend Higher Learning
When it comes to discrimination lawsuits, colleges and universities tend to do their homework. “No surprise, their investigation into any situation is always thoroughly researched,” says Mary Ellen Donnelly ’91, a labor and employment lawyer at Putney, Twombly, Hall and Hirson, who represents higher learning institutions. “But it’s not just their academic nature. They’re dedicated to nurturing students, so they take claims of discrimination extremely seriously. At the same time, they also respect the rights of their employees.”
Donnelly, a second-generation Fordham Law graduate, got hooked on employment law early in her career, when she worked on the first appeal case of the New York Whistleblower Law in 1996. Since then she’s handled several types of employment litigation, especially proliferating discrimination cases. Though academia tends to provide more detailed information on cases than her other (mostly nonprofit) clients do, that hasn’t made Donnelly’s job any easier. In her 25 years on the job, she’s found the law in these cases has changed to favor plaintiffs, who have an easier time bringing their grievances to court against increasingly hindered companies and institutions. For instance, she has to jump through several hoops to get files on an employee’s conduct at previous jobs, information that can help her case but is often out of reach. “It’s important to protect the rights of workers, but I’d like to see a more equitable playing ground,” she says. “Higher education institutions work hard to do the right thing and don’t have a lot of means to defend themselves.”
Donnelly also does what she can to prevent discrimination in the first place by visiting clients for group and one-on-one antidiscrimination training. “I can counsel them to avoid a problem, and I can defend them if they’re accused of a problem,” she says. “Either way I’m on the right side of the equation.”
… Keep Global Labor Fair and Just
Geneva is often cold and damp in late November, but when Fordham Law Professor James Brudney and his colleagues gather there for three weeks each year, they don’t complain. They’re too busy checking up on whether governments across the globe are fulfilling their commitments to workers. As members of the International Labor Organization’s Committee of Experts, they write the ILO’s annual report examining how governments have adhered to labor standards that provide for socially just worker protections.
One hundred eighty-seven member states have ratified at least some of the ILO’s 189 conventions, and over 90 percent have ratified many or all of the eight fundamental conventions— agreeing in the process to protect freedom of association and collective bargaining, promote equal pay for work of equal value, end workplace discrimination, and abolish child labor and forced labor. The governments submit regular reports on their progress in these areas, which means that Brudney and his 19 fellow committee members (who themselves hail from 20 different countries) have to review a lot of translated documents.
After taking into account independent comments from workers organizations and employers organizations that may be at odds with the government’s official version, the committee drafts its annual set of “Observations”; these are made publicly available on the ILO website and in hard copy. The committee also makes “Direct Requests” privately to many governments, asking for more detailed information. And sometimes the committee will invite a government to seek technical assistance or support from the ILO to enhance its compliance efforts. “The ILO can arrange for a technical assistance mission to visit the country, meet with affected constituencies, and help devise plans that will strengthen worker protections. This can be especially useful for governments that face economic challenges when seeking to comply with ratified standards,” says Brudney.
One major challenge Brudney sees for workers and their organizations around the globe is assuring labor standards protections for those toiling in the “informal economy.”
“If you live in a country where two-thirds of the work is off the books, it can be very hard to determine whether those individuals are receiving basic workplace rights and protections,” Brudney says.
He notes the growing potential for contributions by major corporations across national borders. “Governments may lack the resources, or sometimes the political will, to be vigorous about labor protections,” he says.
He adds that multinational brands operating at the top of global supply chains are in a special position to complement the work of these governments.
“The brands have long had a recognized ability to pressure suppliers for on-time production at specified price points; they may also be in a position to pressure those same suppliers to comply with widely recognized labor standards.
… Get the Law on the Worker’s Side
Since forming to help restaurant workers displaced by the September 11 attacks, the Restaurant Opportunities Center has grown into an advocacy group boasting 18,000 members and 200 employers across 32 cities. But it couldn’t have gotten there without the students of Fordham Law’s Community Economic Development Clinic.
As the ROC expanded its mission to improve wages and working conditions for all restaurant workers, the students designed a detailed agreement between the center and its growing list of affiliates, helping the group evolve into Restaurant Opportunities Centers United. The clinic has provided similar transactional-law know-how to help more than 70 nonprofits and co-ops set up shop, advising them on contracts, regulation, compliance, and other paperwork the grassroots groups need to function. “In a certain way, we’re the legal mechanics who keep the vehicle safe and running so they can drive it wherever they want to,” says Professor Brian Glick, who founded the clinic in 2000, supervising students as they counsel, negotiate, advocate, mediate, facilitate, and organize for a number of organizations.
From a Brooklyn community garden to a real estate investment co-op to a women’s dragon boat team raising money for cancer research, the clinic has a wide variety of clients, many of them low-wage earners. In helping migrants, taxi drivers, domestic caregivers, and other marginalized workers, the clinicians have thrived in the trenches of labor law, winning federal income tax exemption for the National Domestic Workers Alliance and getting several worker co-ops off the ground.
Glick anticipates his students may be in for a more painful lesson in a new political climate less friendly to their typical clientele. “It’ll be a struggle, there’ll be close calls, but we’ll do what we can to help,” he says.
… Look Beyond the Employer-Employee Division
An Asian company with limited experience and understanding of U.S. labor law wants to buy half the operations of a chemical plant in Louisville, Kentucky, and employ one-half the original workforce, represented by four separate unions, with the rest staying with the seller. Someone has to hammer out new collective bargaining agreements acceptable to buyer, seller, the unions, and the workers—without which the deal cannot close. Welcome to the world of Steven Swirsky ’78.
In 1991, Swirsky handled just such a matter on behalf of a Japanese company; he deftly navigated competing interests to develop a framework all parties could accept and forged relationships across the table that led to one of the union leaders taking him on a tour of local bourbon distilleries. “A big part of my practice is working with others to find solutions,” says Swirsky, a shareholder at Epstein Becker & Green’s New York office since 1999, where he is a leader of the national labor-management relations practice.
This kind of precise detail work has kept Swirsky interested in the field since he studied labor history and economics as an undergrad at Cornell University. At Fordham Law, professors Joseph Crowley, John Feerick, and Sam Kaynard nurtured his interest in labor and employment law; before the end of his third year, he had secured a field attorney job at the National Labor Relations Board. After five years conducting investigations, running elections, and trying cases for the NLRB, Swirsky moved to private practice, where he found a new kind of challenge: representing employers. He takes a special pleasure in helping foreign clients navigate U.S. law and labor relations. After he worked with Volkswagen to transplant the German works-council model of employee participation at its Chattanooga, Tennessee, plant in the face of a United Auto Workers organizing, Law360 recognized him as labor and employment MVP in 2014.
Swirsky, a fellow of the College of Labor and Employment Lawyers, has seen enough change in the field to know that no predictions about its future are safe. “Labor law is a dynamic microcosm of society. The relationship between employers and employees is at the core of virtually every industry. You can’t always predict what happens next.”
Illustrations by Sophie Yasharian