Fighting for progressive politics

Here’s a strange law with a major impact on progressive politics. California law makes it a crime for any county employee in the State to solicit any political contribution from any other employee of the same county. But the law allows any state employee to solicit a political contribution from any other state employee, including within in the same office, and regardless of how politically sensitive the work of that office may be.

Turns out that this weird and inexplicable difference makes life unduly hard for county employees to run for office. That especially includes candidates for District Attorney who have experience as defenders, and want to run for prosecutor on a progressive platform. The reason is that public defenders all work as county employees, so they aren’t allowed to solicit their fellow public defenders to support their candidacy. That’s crippling, because public defenders are often both close friends and ideologically aligned on this important issue.

We are trying to change things and make it easier for public defenders and other county employees to raise the money necessary to mount viable candidacies. We represent a club in Silicon Valley called Progressive Democrats for Social Justice, plus two of its remarkable members: founder and president Krista Henneman, and member Carlie Ware. We’ve sued the California Attorney General on their behalf contending that this bizarre restriction on county employees, including public defenders, is unconstitutional, because it doesn’t apply equally to state employees. Put differently, we think the law restricts our clients’ fundamental right of political participation in a way that irrationally discriminates among similarly situated people. Our complaint requests that court find the law unconstitutional, which would permit our clients to solicit money from anyone in the public defender’s office—so long as they do it ethically, of course.

It’s already hard enough to mount a progressive challenge to incumbent prosecutors. It shouldn’t be doubly hard because public defenders in California aren’t even allowed to raise money from their friends and colleagues to mount a credible challenge. We hope to change that with this case.

We’ll have more to say on this case in the coming weeks, as we move for an injunction and as the campaign for DA in Silicon Valley heats up.

Fighting For Restaurant Workers

Most people think the minimum wage in America is $7.25 per hour. But it turns out even that low wage has a loophole: tipped workers, like servers and bartenders at most restaurants, can be paid something called the “subminimum wage,” which can be as low as $2.13 per hour, depending on the state. Tips are supposed to make up the difference between the two, but our friends at One Fair Wage have long argued that relying on tips for such a huge part of workers’ take home pay leads to sexual harassment and racial discrimination. One Fair Wage has been making this case compelling to the public, but today, Gerstein Harrow LLP filed a legal complaint on behalf of One Fair Wage against the largest restaurant company in America to take the fight against discriminatory wage and tipping practices to court. 

Our legal case takes on two aspects of Darden’s illegal business practices. First, we directly attack Darden’s stated policy of paying all servers and bartenders at all of its restaurants—like the Olive Garden and the The Capital Grille—the lowest possible cash wage in any state. According to data from current and former Darden employees, and supported by studies measuring the impact of wage policies like Darden’s, paying this subminimum wage, and forcing tipped workers to get to the regular minimum wage through tipping, is the cause of a documented increase in sexual harassment. A key reason for this is that the subminimum wage puts great pressure on tipped employees to have the customers, rather than Darden, pay employees their legally-required wages. This, in turn, means that managers have an incentive to ignore, indulge, or even encourage sexual harassment, including requiring or encouraging employees to flirt or dress suggestively. If Darden got rid of this wage policy tomorrow—and we hope they will in response to this lawsuit!— these illegal effects would be substantially lessened. 

Second, Darden’s tipping policy itself has led directly to tipped employees of color being paid less in tips than tipped white employees. The reason is clear: it is Darden’s corporate policy or practice to encourage and facilitate tipping for positions like servers and bartenders while doing nothing to guide customers or ensure their workers receive fair payment for their work. In essence, this means that Darden, as a corporation, requires its customers to directly set the wage levels for tens of thousands of its employees without any oversight. But customers are often capricious, not rational; and they can bring conscious and unconscious racial and other biases with them when they dine out. This results in an illegal wage disparity. 

This effect is actually well-known. We found it in One Fair Wage’s poll of Darden employees, and it’s been documented elsewhere, including in a prominent study by leading researchers at Cornell and in another Yale study of the tipping of taxi drivers. The disparity is replicable across industries; it’s so well-known, in fact that Uber publicly resisted tipping because it knew that “tipping is influenced by personal bias.” (It later caved, though there’s no evidence that Uber has eliminated that bias.)

 This is not to say that all tipping is illegal. If Darden wants to maintain tipping, there are easy ways to mitigate these effects. Darden could require the pooling of tips. It could add a mandatory or recommended service charge. It could provide better guidance for customers about how to tip, so that diners don’t fall into this trap. What it can’t do is require servers to rely on tips by paying the minimum possible wage, facilitate tipping, and then look the other way when it turns out employees of color aren’t making as much in those tips as white servers. That’d be illegal in any other industry. It’s illegal in industries where tipping is common too—at least the way Darden operates its restaurants. 

This is just the beginning of this case. Stay tuned for more as the case develops.

Fighting For The First Amendment Online

We opened our virtual doors just a few weeks ago, and we already have our first lawsuit. It’s called Hecker v. Krepp, and it’s part of our attempt to strengthen the First Amendment as it applies to online speech. In particular, the case seeks to prevent the government from censoring important public issues on Twitter and Facebook. It’s our first case in what is emerging as an important national campaign to end this practice. We hope to bring more cases, and to be an even bigger part of this important community. You can read our first complaint here. 

Here’s what we allege happened in our case, which is representative of what’s happening nationally. Washington, DC has elected officials called Advisory Neighborhood Commission Representatives. Their job is to discuss and respond to local concerns, to enable the D.C. Mayor and Council to their jobs. One of them, Denise Krepp, has a practice of blocking on Twitter those who voice opinions that she doesn’t like. Blocking those user accounts remove those comments from her twitter threads, so each time she tweets, it seems like most people agree with her, or have neutral comments. That’s because she’s deleting the ones she doesn’t like. 

The First Amendment prohibits government officials from discriminating against people in public forums on the basis of viewpoint. This fits that to a tee. When Denise Krepp tweets about official business on twitter, she creates a public forum (pretty much every court that has looked at the issue agrees). And when she does that, she’s not allowed to swat away comments she doesn’t like. Those comments are part of the public debate that is central to the First Amendment. 

One of the people she blocked is our client, Mark Hecker. Hecker is a community leader who operates a remarkable non-profit called Reach Incorporated that provides tutoring and mentoring to young people in Washington, DC. He likes to participate in the public debate on important issues in his community. On January 11, Hecker tweeted his thoughts on Denise Krepp’s efforts to garner support for a letter she intended to send to the D.C. Council advocating higher prison sentences for people involved in the attack on the Capitol on January 6th. He said: 

“Quite amazing to write a letter, ask 250 to sign it, have 249 not agree to sign, and then to announce publicly that the other 249 are the problem.” 

Krepp didn’t like this response, so she blocked him. That meant his contribution was deleted. And he’s been blocked since, so he can’t reply to or even see Krepp’s tweets. 

This isn’t how the government is supposed to work. The issue isn’t life or death, and we get that. But especially, in our pandemic era, the only town squares we have right now are virtual. So we’ve partnered with Mark to fight back. We filed our complaint in federal court in the District of Columbia. You can read it here. We’ll provide updates as the case moves along, and more thoughts on the important principles in this fight generally.

Two additional thoughts. First, I want to make clear that, just like our law firm itself, this is the start of something bigger. We want to win this case, yes, but we want to win more cases in more places to stop this unconstitutional practice. So, if you’ve been blocked on twitter or facebook by a government official and want to fight back, let us know. We’ll look into taking your case too. 

Second, we freely admit we’re not the first folks into this space, and we’re grateful to those who have already litigated this issue and gotten favorable court decisions. In particular, the Knight First Amendment Institute at Columbia won an important federal appeals court decision in a case involving President Trump’s twitter blocking, and to Georgetown Law’s Institute for Constitutional Advocacy and Protection, who have done important work on this issue.

We’re open for business.

We plan to use this space to tell you about important cases and issues. But for now, we just want to say hi. And tell you about what we’d like to do with this new law firm you are reading about.

Both of us started this law firm because we want to do, for lack of a better term, real people law. That is, we want to take the kind of cases where we represent real people and make their lives better through our work. We will be creative about what that means. Our clients will be workers, incarcerated people, entrepreneurs, activists, artists, tenants, or anyone else who could use our help. And our goal will sometimes be money damages, or sometimes something else, like a promise to stop doing something harmful or a change of a government policy.

You’d think, given how many lawyers there are in America, that there’d be too many lawyers who want to do high-quality legal work, with the utmost integrity, for real people, at a reasonable cost. But it turns out there are too few that tick all of those boxes. Some lawyers who do high-quality legal work charge too much for most people to afford. Other lawyers are reasonably priced but can’t do innovative or high-quality work. Still others are skilled but might not always practice with integrity.

Those lawyers might have a place in the system. But that place is not Gerstein Harrow LLP.

So now it’s up to you. If you are reading this and want a law firm like us, email us at hi@gerstein-harrow. Or if you are a lawyer like us, out to do cases that matter and that could use some help, please contact us too at the same address, hi@gerstein-harrow.com.

If you build it, they will come, or so folks say. Step 1 is done, since we’ve built the law firm we think should exist. Help us out with step 2.