Rat-Inflating Union Organizer Can't Get Overtime

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By Jon Steingart

Oct. 4 — A labor union defeated a claim by one of its New York organizers that he was entitled to overtime pay ( Krupinski v. Laborers Eastern Region Org. Fund , S.D.N.Y., No. 15-cv-00982, 9/30/16 ).

Organizer Daniel Krupinski said he engaged primarily in non-exempt duties for Laborers Eastern Region Organizing Fund, an affiliate of the Laborers International Union of North America. But Judge Richard J. Sullivan of the U.S. District Court for the Southern District of New York disagreed, finding in a Sept. 30 opinion that Krupinski was an overtime-exempt administrative employee under the Fair Labor Standards Act.

“Organizers have always been exempt employees,” Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations, told Bloomberg BNA Oct. 4. The amount of independent judgment that’s needed to perform the job successfully, sometimes in remote situations where it isn’t possible to check in with headquarters, makes them exempt from overtime.

Duties Included Rat Protests

Krupinski’s main job was to persuade non-union members to join the union. He staged demonstrations at non-union workplaces with inflatable rats and coffins to highlight the poor labor practices he said occurred there.

Department of Labor regulations say people who engage in manual labor such as carpentry, plumbing and construction generally are eligible for overtime pay. Krupinski argued that setting up, operating, and disassembling inflatable rats involved manual labor, as he responded to varying weather conditions.

Sullivan was skeptical that tending to a prop might be the sort of manual work contemplated by the regulations. Even if it was, it didn’t matter because a worker may be exempt from overtime despite performing some manual work.

Krupinski’s duties, Sullivan found, were similar to those listed in the regulations as examples of those that make someone exempt from overtime because they are associated with operating a business. By interfacing with non-union workers, he engaged in a form of marketing and public outreach, which disqualify someone from overtime eligibility.

That Krupinski had discretion to choose the worksites and individuals to target showed he engaged in the sort of decision making needed to operate the organizing campaigns he was a part of, the judge said. He was expected to tailor his outreach according to the different responses he encountered.

An attorney for Krupinski wasn’t available for comment Oct. 4. An attorney for the union didn’t immediately return a call seeking comment.

Justin Clark, Matthew Blit and Russell Moriarty of Levine & Blit, PLLC in New York City represented Krupinski. Raymond Heineman and Brian Tremer of Kroll Heineman Carton, LLC in Iselin, N.J., represented the union.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

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