The Legal Rationale for Our Community Service Minimum Wage Suit
So our minimum wage suit for the innocent forced to perform community service has gotten some play on Fox news, with rather predictable results (“greedy employment lawyers taking advantage, etc etc”).
But right from the jump, the piece gets a key fact wrong, where the talking heads claim that our suit is on behalf of people convicted of low level crimes. Of course, a significant point of our suit is that our class is convicted of nothing, and remain presumed innocent.
The case is really a labor and employment issue, not a criminal justice issue. According to the latest figures, 88,000 ACDs were granted in 2012 in New York City. If half of those people did community service, at an average of 2 days per person, that’s 88,000 days of paid workers getting displaced by the modern chain gang. The entire point of the federal and state labor laws is to protect the labor market, keep wages at a reasonable rate, and prevent exploitation. This free labor impacts labor unions’ bargaining position, and suppresses wages.
For that reason, the case is entirely meritorious, consistent with federal and state labor laws. Here’s a copy of the Filed Complaint. It’s not volunteerism, because, among other reasons, it’s not done for “civic, charitable, or humanitarian reasons”, or “without pressure or coercion”. It’s not prison labor, because, among other reasons, “penological objectives, such as punishment, deterrence, and rehabilitation, are inapplicable to pretrial detainees” who are “clothed with a presumption of innocence”, and, unlike prison workers, these workers are not taken out of the general labor market.
Rather, the work is most easily analogized to an unpaid internship where the work performed benefits almost entirely the employer, with virtually no educational component, work that has been held to enjoy the protections of the labor laws, to prevent exploitation. And it is well analogized to workfare for food stamps and welfare, which enjoys the protections of the minimum wage.
What the community service is on an ACD is an agreement, a contract- I will sweep this park, if you tell the DA and the Courts I did so so that they will dismiss my case. All well and good, except a person cannot bargain away the minimal protections of the labor laws- if they could, “employers might able to use superior bargaining power to coerce employees” to waive their rights. “This protects more than Plaintiffs themselves, because such exceptions to coverage would … exert a general downward pressure on competing businesses… It also protects businesses by preventing anti-competitive behavior. An employer is not to be allowed to gain a competitive advantage by reason of the fact that his employees are more willing to waive” the protections of the federal labor laws. Allowing a waiver of the minimum wage would gut the law, and so it is not permitted.
The work performed by these folks is not make work- the cleaning they do is real, and necessary. The city gets nicer and better every year for people like me- the parks are beautiful , the roads tolerable. This is not the New York City that I experienced in 1976 (of course, that means we don’t have the Ramones playing at CBGBs either, but we still have Patti Smith). But let’s make some of the costs plain- the improvements are sometimes at the expense of the underprivileged, who get charged with ridiculously minor offenses I would never get charged with, and then run through the system and shaken down for a few days of park cleaning. These are people charged with jumping a turnstyle, possessing a pocketknife, crossing into the next subway car, having their legs on a subway seat, littering, drinking a beer on their own stoop. And many are innocent- for example, the cops call every knife a “gravity knife”, though few are. Ask any criminal defense lawyer about the cases that come through an arraignment shift every day. These folks can spend a year and a half coming back and forth to court to fight their cases, or agree to do a couple days community service. It is a shakedown, plain and simple, designed to make the city better for the privileged, and secretly exploiting the vulnerable poor.