Joel Dillard

Representing Mississippi Workers

The Mississippi Workers' Rights Blog



Overtime Lawsuit filed against Hinds County School District

A lawsuit has been filed against Hinds County School District, alleging that it has underpaid its hourly employees. This class action lawsuit covers janitors, bookkeepers, and anyone else who is not exempt from overtime. (It does not include teachers or coaches, because they are exempt from the Fair Labor Standards Act.)

The lawsuit alleges that the District did not pay the employees the time they worked, shorting them anything from a few minutes to multiple hours in various weeks. This is both because of work which was taking place off the clock, and also because the District was simply not paying for all the time recorded on the timeclock.

More information about the lawsuit - including a copy of the form needed to join the class action - is available at the Hinds County overtime lawsuit website.



The Challenges of Employment Law

Today's post is written by Elissa Furlong, a law fellow working for the firm this year.

An attorney once told me that you when you first graduate from law school, you don’t know anything about how to actually practice law. I only have one year of law school under my belt, so by that equation, my knowledge about how to practice law isn’t especially extensive (but don’t worry because anyone reading this would be in good hands with Joel).

To make matters worse (for me), the consensus surrounding employment/labor law seems to be that it is ever changing and particularly complex. My sources confirming this include my dad, a labor law attorney, one of my professors, who told me she only fully understood the intricacies of employment discrimination once she started teaching it, and even my first day observations working for Joel.

I remember when I first became interested in workers’ rights: it was when I took economics in college and learned about corporate social responsibility and free trade. It continued when I studied human rights in South Africa, and again when I interned with the International Labor Organization. It wasn’t until I started law school, though, that I started to realize that most areas of law, including and especially labor/employment law, are riddled in several shades of grey.

But even if governed by a nuanced and complicated area of law, the concerns and grievances of working people seem straightforward: people want, and deserve, to be treated with respect at work. Although I don’t know a lot about the practice of law, I am hoping that the laws in place, as complex as they may get, can do something to further this simple, universal desire, and tilt in favor of those who want something as fundamental as dignity at their place of work. If you are being deprived of this dignity, you should contact an employment law attorney. She/he can sort through the complicated.



Wage theft from salaried employees

Today's post is written by Jay Kucia, a law fellow working for the firm this summer.

Fifty billion dollars.

$50,000,000,000.

According to reports, that is how much pay workers lose in the United States annually through wage theft. Wage theft is when an employer refuses to pay an employee wages the employee is owed. This can happen in a variety of ways, and the employee is often completely unaware of it. This is particularly true for salaried employees.

Wage theft from salaried employees is actually fairly common. However, federal wage and hour law is too confusing, so employers often get away with inventive forms of wage theft. Here’s the bottom line: Your salary itself may be illegal, and you may be entitled to overtime.

To avoid overtime, the employee must prove the work meets three tests: the salary basis test, the duties test, and the salary threshold test.

  1. First, the salary basis test requires the employer to pay the employee that guaranteed minimum regardless of quantity or quality of work.
  2. Second, the duties test limits this exemption to employees who perform certain kinds of work. Generally, the only exempt employees are certain professionals, or those who supervise, manage, and control the work of other employees.
  3. Finally, there is the salary level test. Under this test, an employee is not exempt unless that employee earns more than $455 per week or $23,600 per year.
But how can you know whether you meet these tests? If you are a salaried employee who suspects your employer might be stealing your wages, what can you look for?

First, under the salary basis test, if your employer does not pay you your salary consistently you are entitled to overtime pay. Employers often do this by docking salaried employees for time missed or product losses. If your employer says you earn a salary, be on the look out for violations like this. Your employer may be cleverly—or even unintentionally—stealing your wages.

Second, under the job duties test, you are entitled to overtime (no matter how you are paid) if your work is mainly physical or manual labor. For example, if you are called a manager and paid a salary but most of your work is cleaning up behind other workers, you are entitled to minimum wage and overtime pay.

Third, under the salary level test, you are entitled to overtime if you make less than the salary threshold of $455 per week or $23,600 per year. This is a simple math problem, and is usually obvious from the pay check.

If you think you might be experiencing wage theft, consider contacting an employment attorney.



Jackson Federation of Teachers Sues JPS for Free Speech Violations

The AFT local union is suing the Jackson Public School District on behalf of Anthony Gunter, a former teacher at Provine High School. The District has violated his free speech rights - and the rights of all teachers and other employees.

Act 1: The Tuberculosis Outbreak at Provine High School

In February of 2019, the media broke the story that a student at Provine High School had a confirmed case of tuberculosis, and that he had been attending the school while ill in the month of December 2018. Suffice to say this was big news, and JPS was not happy with the way public relations were being handled.

Act 2: A Teacher Talks to the News Media About the Issue

Teacher Anthony Gunter was approached off-campus by Channel 16 WAPT to comment about the tuberculosis outbreak. Gunter stated his concerns and the interview aired on the evening news.You can watch his interview here: Gunter's interview.

ROSS ADAMS: TONIGHT ONE PROVINE TEACHER IS SPEAKING OUT. HE WANTS TO KNOW WHY THEY WEREN'T TOLD EARLIER ABOUT THIS HEALTH SCARE.
ANTHONY GUNTER: AS A CONCERNED PERSON HERE AT PROVINE HIGH SCHOOL I WOULD LIKE TO KNOW WHEN IT STARTED.
ADAMS: PROVINE HIGH TEACHER ANTHONY GUNTER IS LOOKING FOR ANSWERS ABOUT TUBERCULOSIS AT HIS SCHOOL.
GUNTER: IT'S A LOT OF QUESTIONS TO BE ASKED. AND A LOT OF QUESTIONS THAT NEED DIRECT ANSWERS.
ADAMS: GUNTER WANTS TO KNOW WHY THE SCHOOL JUST FOUND OUT THAT A PROVINE STUDENT WAS DIAGNOSED WITH TB IN DECEMBER.
GUNTER: IF IT WAS DECEMBER WE SHOULD'VE BEEN NOTIFIED LONG BEFORE DECEMBER. LIKE I SAID, THIS IS A VERY DANGEROUS SITUATION. THIS IS NOT LIKE YOU CAN GO TO THE STORE AND BUY SOME ROBITUSSIN AND IT WILL BE DONE WITH IN 24 TO 48 HOURS.
ADAMS: HEALTH DEPARTMENT OFFICIALS SAID IT TOOK WEEKS TO GET LAB RESULTS THAT CONFIRMED THE DIAGNOSIS.
GUNTER: IF IT WAS SOMETHING THAT WAS KNOWN PRIOR TO TODAY I’D JUST LIKE TO KNOW WHY WASN'T THE FACULTY OR THE STUDENT BODY INFORMED. THIS IS A VERY DANGEROUS SITUATION.
DR. THOMAS DOBBS: THERE IS NO ONGOING RISK OF INFECTION.
ADAMS: STATE HEALTH OFFICER DR. THOMAS DOBBS SAID THE HEALTH DEPARTMENT PLANS TO TEST 200 PROVINE STUDENTS AND FACULTY WHO MAY HAVE HAD EXTENDED CONTACT WITH THE INFECTED STUDENT.
VALERIE HOYE: THEY'RE GOING TO HAVE TO GO THROUGH A LOT BECAUSE IT MIGHT BE SOME KIDS THAT WAS ACTUALLY INFECTED BY IT.
GUNTER: I THINK WE ALL NEED TO BE TESTED. WE ALL SHOULD BE INFORMED AS TO HOW LONG THIS THING HAS BEEN GOING ON, HOW LONG WE HAVE BEEN EXPOSED.
ADAMS: AND TONIGHT THE HEALTH DEPARTMENT TELLS US THAT THE INFECTED STUDENT HAS BEEN REMOVED FROM PROVINE HIGH.
ROSS ADAMS, CHANNEL 16 WAPT NEWS

Act 3: Gunter is fired

Gunter was terminated by the school district thereafter. The day after the story aired, Gunter was called into the principal's office where he was criticized for giving the interview without prior permission, and for what was said in the interview. At the end of this conversation the Principal shook Gunter's hand and said they were going in a different direction and that the school did not need [Gunter] anymore.

Act 4: The AFT local Union Sues for Free Speech Violations

The union JFT-PSRP and Gunter jointly brought suit alleging that JPS is maintaining and enforcing an unconstitutional media policy that restrains employees in the exercise of their free speech rights. According to Joel Dillard, the attorney representing Gunter and JFT-PSRP in the suit: Teachers are a vital source of information about the health and wellbeing of students in our schools. We cannot tolerate administration efforts to silence them.

Read more in covereage of this lawsuit in the media from the Clarion Ledger.



Hancock County sued for retaliating against a breastfeeding mother

A Hancock County Sheriff’s Department corrections officer claims she faced harassment and retaliation when she asked for break time to pump breast milk for her newborn.

Crystal Ford, a law enforcement officer at the Hancock County Sheriff’s Department located in Bay St. Louis, has sued her employer for violating her rights under the Fair Labor Standards Act (FLSA). The law requires employers to give nursing mothers breaks in an appropriate place to express breast milk. Ms. Ford claims that the Sheriff’s Department repeatedly denied her breaks to pump and forced her to pump in an employee restroom.

On September 2, 2018, Ms. Ford requested permission to return home to retrieve a part of her breast pump. A deputy told her she could not leave and said that he did not give a f--k about Ms. Ford’s emergency. When she attempted to leave, Ms. Ford was locked into the prison facility and mocked over the prison speaker system.

Ms. Ford developed a mastitis infection due to her inability to pump regularly at work. For her health, Ms. Ford took a demotion to a part-time, on-call job, but she was rarely called into work. She later asked to return full time but was not rehired.

According to Mississippi attorney Joel F. Dillard, who is representing Ms. Ford in the lawsuit, The rules are clear: Employers must allow women to nurture their children by pumping at work. Those rules were broken and ignored by the Sheriff’s Department. Ms. Ford is suing to enforce these rules, which should protect every mother and child.



Due Process Victory for Mississippi Library Employees

A federal court in Mississippi recently ruled that the Meridian-Lauderdale Public Library broke the law and deprived employee Sharon Smith of her constitutional rights. The case broke new legal ground and significantly expanded the rights enjoyed by all library employees in the state.

Sharon Smith was working as the public relations director at the library in Meridian. She was fired by library director Barbara Gough without cause - that is, for no reason - after only a few months on the job. Neither Ms. Gough nor anyone else at the library would tell her why she was fired. She asked for a hearing with the library's executive board. The board refused to hear what she had to say.

Jackson lawyer Joel Dillard brought a lawsuit against the government on behalf of Sharon Smith. The lawsuit asserted that Ms. Smith has a constitutional right to due process. Ms. Smith argued to the court that she should have been given notice of the reasons for her termination and an opportunity to explain her side of the story.

The government was represented by Butler Snow, a corporate firm with 131 attorneys in the Jackson office and 25 additional offices throughout the nation. The government argued that library employees are at will and can be fired for any reason or for no reason at all. They noted that almost all Mississippi employees are at will and have no due process rights.

But the plaintiff identified a state statute which said that library staff can be fired for good cause and that they have the right to a hearing before the library board. This particular argument was a new one which had never been heard in the courts before.

Federal Judge Carlton Reeves ruled on the case. He found that Ms. Smith was correct, and that library employees can only be fired for good cause under the statute, and therefore that they have a right to due process under the United States Constitution. He further ruled - in judgment on the pleadings - that Ms. Smith had proven her case, and that the library had violated her constitutional rights: It is undisputed that Smith did not receive any sort of notice or hearing prior to her termination. Ultimately, she received no process at all. Thus, Smith's motion for judgment on the pleadings in regards to her procedural due process claim is granted. The only remaining issue is the determination of damages. Read the full decision here.

This is a big victory, said Dillard in a statement concerning the case. For the first time, the courts have told the government that it must give its library staff basic due process. To throw away a career - without even telling the employee what went wrong - is the kind of arbitrary, callus behavior we expect in a dictatorship, not a free democracy. Everyone should be treated with dignity and respect - including by their boss. My mission is to bring democratic values of due process and free speech to every single employee in the state. This case is an important victory in that fight.

When I am doing my job and doing it well, Smith said it is really unfair to be blindsided like this. It is good to know that one person can stand up and make a difference. Not just for myself, but for everyone else who comes after me.



Construction liens, statutory late fees, and special advantages for construction sub-contractors

Compared to most states, Mississippi law governing the workplace is basically non-existent. There is no state law against sex discrimination, for example, so you can only rely on federal law. This means that sexual harassment is legal for employers with fewer than 15 employees! As another example, it is perfectly legal to fire someone in retaliation for filing a workers compensation claim in Mississippi.

Why? Because employees are so poorly organized. If the employees were sufficiently organized to have a meaningful voice at the legislature, these laws would change in a hurry.

We can see this in the unique advantages that construction industry subcontractors have. Large subcontractors with deep pockets have coordinated to create a legislative environment that works for them.

For example, state law requires that, on bonded projects, the subcontractor or employee that does construction work on the project can collect directly on the bond, and can intervene in any lawsuit on the bond to make sure that they get paid. The office manager at that same firm has no such rights.

In addition, state law gives contractors a lien against the property they work on if they are not paid.

And subcontractors have an automatic statutory late penalty they can exact from a general contractor or higher-level sub if they are not paid within a couple weeks of the general contractor receiving payment.

These laws were basically written by construction industry lawyers who represent subcontractors in litigation, and know how to get the necessary advantages to collect on construction projects.

When the workers of this state come together in political and labor organizations to advance their interests, they will quickly see the benefits.



Careers in Labor & Employment Law

I went to law school knowing that I wanted a career representing working people and labor unions. I had seen the difference that this kind of representation can make at first hand during my undergraduate work, when organizers for the Laborers (LIUNA) came to campus. And today it is a joy to stand up again and again for better wages and working conditions, due process and fairness at work.

But as a law student, it was terrifying to face the unknowable hazards of trying to enter a very narrow career niche. And the truth is, there is no one way to get into this kind of work. Some people are born into high-level connections with the labor movement, and are able to leverage that into a career. But for the rest of us, the path is necessarily going to be a little more fraught and creative. Let me share a couple essential takeaways from my own path, some things law students may find helpful.

Be mobile. You may not be able to call your own shots on where you practice. You may find yourself anywhere from Seattle to D.C. chasing this dream.

Don't limit yourself to traditional labor law. NLRB work is the exception, rather than the rule, for the kind of work lawyers representing working people and unions will do. Whether it's pension benefits, workers compensation, civil rights, wage & hour, or even Clean Air Act litigation, most lawyers in this line have subject-matter flexibility.

Get practical work. The practical knowledge - from the technique for settlement negotiations, to trial practice skills, to connecting with clients - is by far the most important. And there's only one way to get it.

Write better. We can all improve. And most of a lawyer's work is on paper. So try to make everything you write an exercise in improving your skills. From your facebook posts to your law journal article, everything you write is an opportunity to practice precision, clarity, and effectiveness in your writing.



A Lawyer's Prayer

There is a famous lawyer's prayer that I love. It captures much of the unique ethical obligation of the attorney, and I thought I'd share just one small part of it with you today. We pray that:

For the glory of God an in the pursuit of His justice,
I may be trustworthy with confidences,
keen in study, accurate in analysis,
correct in conclusion, able in argument,
loyal to clients, honest with all,
courteous to adversaries, and ever attentive to conscience.

These are modest, basic qualities that every lawyer must have. In fact, they match up closely with the ethical rules governing the profession:

Where the prayer falls short is in leaving out the duty of every attorney under Rule 6 to represent persons of limited means either directly or through representation of organizations in matters that are designed primarily to address the needs of persons of limited means. This is one way in which the lawyer lives out the preferential option for the poor. In fact, lawyers have a special role in every aspect of Christian social teaching. But that is a topic for another day.



Veterans Day

Veterans enjoy some unique employment protections, an apt topic for this Veterans Day. The federal statute is called the Uniformed Services Employment and Reemployment Rights Act - or USERRA - and it has a counterpart in many states under state law as well. This includes Mississippi.

First of all, the statute prohibits discrimination against veterans. 38 U.S.C. Sec. 4311(a). This is fairly straightforward.

The unique feature of the law, however, is that it gives any person the right to leave work for up to five years to go into the military, and then demand his job back. This includes short breaks from work (such as for a brief reserve call-up or training) as well as a lengthy and continuous break, such as for a multi-year deployment. 38 U.S.C. Sec. 4312.

All that is required is for the person leaving for the military to give written or oral notice that he is going into the military when he leaves the job, and then to apply for reemployment promptly on his return. 38 USC Sec 4312(a); see also 38 USC Sec 4312(e) for what I mean by promptly. He does not have to inform the employer that he intends to come back to this job before leaving.

The employer has a possible defense, but it is not simple. To avoid the requirement to rehire the employee, the employer usually must prove that the employer’s business has changed such that reemployment is impossible or unreasonable. 38 USC Sec 4312(d).

And the employer cannot retaliate or harass the veteran for exercising his reemployment rights. 38 USC Sec 4311(b).

The veteran is not only entitled to get the same or similar job back, he is entitled to be treated as if he had been continuously employed in the meantime. In other words, he should still be accumulating seniority, leave, benefits, and pay raises during the time he is in the military - even though he is not at work or even on the employer rolls. The statute says he must be reemployed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service or else in a position of the similar seniority and status. 38 USEC Secs 4313, 4316, 4317, 4318,

This includes the right to retirement benefits accrual and contributions - although the employee will usually have to buy back the employee contributions he missed in the meantime.

State law provides additional protections. In particular, it is a crime - a misdemeanor with fine or prison term up to 6 months - for any employer to discriminate against a veteran or member of the reserves. Miss Code 33-1-15. And because of the McArn doctrine (discussed elsewhere on this site), a veteran who experiences such discrimination cannot be fired for reporting it.

In addition, Mississippi has a reemployment statute also. A person in the employ of any employer in the state shall be entitled to be restored to his previous or a similar position, in the same status, pay and seniority, and such period of absence for military duty or training shall be construed as an absence with leave but may be without pay. Miss Code 33-1-19. Crucially, the Mississippi statute does not mention any notice whatsoever to the employer about the reason for leaving, nor does it have a 5 year limitation on the military leave taken. This means that, even after decades of military time, employees in Mississippi may still have a means of securing reemployment.

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