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Nasir Pasha

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Nasir N. Pasha is the managing attorney of Pasha Law, providing essential legal services and support to businesses and corporations in California, Illinois, New York, and Texas. He oversees all of the firm’s operations and is a pivotal force in maintaining client relationships and ensuring that each transaction is brought to its best possible conclusion.

Just to catch everybody up, UPS did relent, and those 250 UPS workers who were fired after staging a 90-minute walkout on February 26 in Maspeth, Queens, NY are back at work.  So is the union activist whose firing on February 14 was the original cause of the protest.  As is often the case, what’s really interesting is the back story.  Let’s go there with a look at the initial reason for the dispute, the governing contract and the economic factors that came into play.

Jairo Reyes, the Union Activist, was Fired for Clocking In Early

He claimed his manager had given him permission, so that he could reach one of his regular deliveries at a time when a scarce delivery bay was likely to be available.  The manager denied giving permission. UPS claimed that Reyes was collecting overtime for hours not actually worked and fired him.

Employers have a general employment law obligation to pay workers overtime for hours worked above the state or federal threshold, even if those hours were not authorized.  They have a corresponding duty to ensure that unwanted hours are not worked, even to the length of terminating an employee.  Reyes claimed that the company was actually retaliating against him for signing a grievance in early February about senior workers' hours. Teamsters Local 804 claimed that proper dismissal procedures had not been followed.

When Dealing with Unionized Workers, Employers Must Look to the Contract

When dealing with employment disputes, employers should understand that the law has layers.

Layer 1 – Look at the terms of the contract, if there is one.  This may be the case with a unionized workforce, independent contractors or highly paid employees.  If no contract exits or if it is silent or ambiguous about a particular issue, proceed to layer 2.

Layer 2 – Look at statutes – start with local ordinances, then state law, then federal law.  The provisions that are most protective of employees usually trump less protective provisions.  Independent contractors have very few statutory protections. If statutes are silent or ambiguous about an issue, on to layer 3.

Layer 3 – Look at that vast, ancient body of case law, which traditionally has been far more protective of employers through application of the “employment-at-will” doctrine. As above, there are very few protections for independent contractors.

It’s a situation designed to produce apparently contradictory results.  Here, there is a contract between UPS and the union, but the parties disagree about what it provides.  So, how was the situation settled?

King Culture Won

It would have been great to have been a fly on the wall in the recent meeting between the union reps and UPS, but it has been reported that the City of New York was unhappy that the situation had even arisen.  UPS does a lot of business with the City and benefits from an arrangement dealing with parking fines.   Regardless of your position on unions, the truth is that UPS may have miscalled this one from the beginning.

Let’s take a brave step farther.  Is this a good thing or a bad thing? Silly.  In New York, one understands that the answer to a question is a question.

Why would we think  this is a binary choice?  Everyone who works for a living on any side of the employer/employee/independent contractor/creative worker/entrepreneur side of the question ultimately looks at the same thing.  What happens the day after tomorrow? Everyone went back to work. Packages got delivered, even to city offices. Parking ticket issues continue to be resolved. What was it all about?

Not law, it appears.  Positioning, maybe.  Perhaps it's nothing more than than a cautionary tale about the need to periodically assess the odds.

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