These lawsuits are currently before the US Court of Appeals 2nd Circuit involve an Alternative Employment Practice intended to address chronic lack of skills and benefits for a Class of employees, under the Percy Program: http://percy.alternativeemploymentpractice.com/percy-program-alternative-employment-practice-edny-20-cv-06131/65557377.
The litigation documents have been gathered at http://percy.alternativeemploymentpractice.com
Disenfranchised persons become frustrated, frustration involving generations who have long ago forgotten the satisfaction and pride in a respected occupation, frustration becoming an even more attenuated problem that often leads to violence. The benefits and the Alternative Employment Practice address this chronic problem. The 1991 amendment to the Civil Rights Act of 1964 (42 U.S.C. §§2000e et al, commonly referred to as PL Title VII of the Civil Rights Act of 1964 as amended in 1991) sets forth a methodology whereby the Plaintiff Class as the Complaining Party can demonstrate to Respondents an Alternative Employment Practice to address the disparate impact of the lack of skills caused by inadequate training of persons in the Plaintiff Class so as to have equal employment opportunity by possessing the necessary skills to compete for jobs.
These lawsuits are about providing relief to black and Spanish surnamed persons that have been disenfranchised due to lack of skills, marginalized and unable to compete for decent paying jobs and careers, to work, earn, buy, sell, pay taxes and do all the things that make up a strong middle-class. Title VII of the Civil Rights Act (42 U.S.C. 2000e-2[k][A][ii]) provides that “An unlawful employment practice based on disparate impact is established under this subchapter only if … the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.”
Regarding Percy v Brennan, SDNY Case 73-cv-04279, two plenary lawsuits, EDNY Percy v Employer and Owners 21-cv-01366 and Hodge v Cuomo 21-cv-01421 have been commenced this past year:
Percy Jobs to Careers, an IRC 501(c)(3) non-profit corporation, was founded to create apprentice training as a pathway for anyone to advance, which includes rewarding skills, advancement to business ownership and beyond, an individual’s choice.
Apprenticeship work processes were developed for many occupations through trade associations and by individual employer sponsors, involving learning a skilled occupation through both on-the-job training (practical, paid experience) and learning the related technical knowledge in a classroom (related classroom).
This Alternative Employment Practice provides an opportunity to compete for employment based on skills rather than the color of one’s skin or ethnicity. Such apprenticeship includes paid on-the-job (“OJT”) training working alongside an experienced worker, fosters transfer of their know-how to inexperienced, interns. The apprentice learns by training, drilling and practicing to become skilled for well-paying careers. An acceptable apprenticeship program is vigorous and comprehensive and takes many years for an apprentice to fulfill the requirements as established by the US Secretary of Labor, The United States Department of Labor through its US Bureau of Apprenticeship Training, New York State Department of Labor.
This became the Percy Program Alternative Employment Practice, providing benefit programs in compliance with the US Davis-Bacon Act (40 USC §§276a to 276a-5) and Article 8 of the New York State Labor Law, providing 24 hours of protection for health, disability, medical care and lost wages, encouraging workers to stay with their employer. The Percy Program fosters depth of experience and skill in the workforce.
The lawsuits against the potential members of the class of defendants were composed in good faith to enforce the relief awarded in Percy v. Brennan, supra, which settlement relief failed when Governor’s 1977 Executive Order 45 presented to the SDNY Federal Court to accomplish the settlement, was declared unconstitutional and unenforceable by the New York State Court of Appeals, Fullilove v Beame 48 NY2d 376 1979.and Fullilove v Carey 48 NY2d 826 1979. Since the failure of Executive Order 45 there has been little or no real affirmative action toward providing equal opportunity for employment, opening the gates of opportunity is not equality in fact if a person does not have the necessary skills. The New York Governor has failed over these many years to correct the failure of Governors Executive Order 45, frustrating the Alternative Employment Practice and the mandates of the Civil Rights Act.
The Percy Class meets its burden of persuasion under 42 U.S.C. § 2000e–2(k)(1)(A)(ii), as the requisite demonstration described in subparagraph (C) as required by 42 U.S.C. § 2000e–2(k)(1)(A)(ii) has been made.
STATUS OF LITIGATION
The Class represented by Donna Hodge, Annette Hall, Karen Grant Williams, Alexi Arias, Albert E. Percy, Percy Jobs and Careers Corporation in Lead Appeal 21-1585 Case EDNY 20-cv-06131, and nine tag along cases listed below were dismissed by the Lower Court’s Decision and Order . These cases involve “8,773 defendants”, named only as putative members of a class of defendants identified by analytical methods such as Dodge Analytics and census records, LEAD CASE EDNY 20-cv-06131 complaint at Dkt 27 paragraph 25 at page 60 and paragraph 28 at page 61, as “The Defendant Class is identified by Don & Bradstreet by Standard Industrial Classification (“SIC”) and North American Industrial Classification System (NAICS”) classification codes, as defendant class representative industry leaders fairly and vigorously able to represent the interests of the Employer Class Defendant to defend this Class Action. The appeal in 21-1585 Case EDNY 20-cv-06131 and 8 Related Appeals all concern the same parties and causes of action. A complete list of the Related Appeals and the proposed Lead Case, including District Court docket numbers, is as follows:
LEAD CASE EDNY 2120-cv-06131, Appeal No. 21-1585
EDNY 21-cv-02175, Appeal No. 21-1578
EDNY 21-cv-02182, Appeal No. 21-1577
EDNY 21-cv-02194, Appeal No. 21-1573
EDNY 21-cv-02198, Appeal No. 21-1570
EDNY 21-cv-02311, Appeal No. 21-1574
EDNY 21-cv-02283, Appeal No. 21-1597
EDNY 21-cv-02313, Appeal No. 21-1572
EDNY 21-cv-02314, Appeal No. 21-1587
Identical allegations are asserted in each of the actions relating to identifying members of a class of defendants. The Plaintiff-Appellants conferred with the Administrative Attorney’s Office of the Second Circuit Court Clerk’s office, and, in the interest of judicial and litigation economy and efficiency, have submitted motions for similar case management procedures to govern these cases. The determination of the issues in appeal 21-1585 (EDNY 21-cv-06131) and its related cases will be determinative of the appeals held in abeyance under lead appeal 21-1585.
42 U.S.C. 2000e-2[k][A][ii]) provides that “An unlawful employment practice based on disparate impact is established under this subchapter only if … the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.” The statute provides that once the plaintiff established a prima facie case of disparate impact, the employer has the burden of persuasion to “demonstrate that the challenged practice [was] job related for the position in question and consistent with business necessity…”. Plaintiff alleging disparate-impact discrimination under Title VII is ready to prove that an alternative, less discriminatory practice existed which the employer members of the defendant class refused to adopt, shifting the burden to the employer to rebut the claim by offering a valid justification for the challenged practice.
These matters in 20-cv-06131 are about providing relief to black and Spanish surnamed persons that have been disenfranchised due to a lack of skills to compete for decent paying jobs and careers; fighting to restoring the ability to work, earn, buy, sell, pay taxes and do all the things that make up a strong middle-class.
The 1991 amendment to the Civil Rights Act of 1964 (42 U.S.C. §§2000e et al, commonly referred to as PL Title VII of the Civil Rights Act of 1964 as amended in 1991) sets forth a procedure methodology whereby the Plaintiff Class as the Complaining Party can demonstrate to Respondents an Alternative Employment Practice to address the disparate impact of the lack of skills caused by inadequate training of persons in the Plaintiff Class so as to have equal employment opportunity by possessing the necessary skills to compete for jobs.
Hyperlinks demonstrated the alternative employment practice to the members of the defendant class (a “demonstration” within the meaning of 42 USC 2000e-2), meeting the Complainants burden of persuasion as defined at 42 U.S.C. Section 2000d. The 1991 amendment to the Civil Rights Act of 1964 (42 U.S.C. §§2000e et al, commonly referred to as PL Title VII of the Civil Rights Act of 1964 as amended in 1991) sets forth a methodology whereby the Plaintiff Class as the Complaining Party can demonstrate to Respondents (the members of the putative Class Defendant) an Alternative Employment Practice under the National Apprenticeship Act of 1937, section 1 (29 U.S.C. 50), addressing the disparate impact of the lack of skills of persons in the Plaintiff Class so as to have equal employment opportunity by possessing the necessary skills to compete for jobs. Necessary skill and knowledge are provided by the Alternative Employment Practice.
The Complaints state that the Class Plaintiffs, as the Complaining Party under 42 U.S.C. § 2000e–2(k)(1)(A)(ii), made the requisite demonstration to the members of the defendant class [as described in subparagraph (C) as required by 42 U.S.C. § 2000e–2 (k)(1)(A)(ii)], and that the respondents’ putative members of the defendant class failed to implement the alternative practice, thereby causing unfair employment practices and disparate impact. The Alternative Employment Practice and its demonstration, referenced subparagraph (A)(ii), is in accordance with the law as it existed on June 4, 1989 as required by 42 U.S.C. § 2000e–2(k)(1)(C).
The Complaints state that members of the defendant class, Respondents under 42 U.S.C. § 2000e–2(k)(1)(A)(ii), refused to adopt the Alternative Employment Practice and therefore a prima facie case to obtain relief for the Complaining Party Plaintiff Class is a meritorious federal cause of action of disparate impact on the plaintiff class as an illegal employment practice.
Demonstration to the putative members of the class defendant (a “demonstration” within the meaning of 42 USC 2000e-2), meets the burden of persuasion of the Plaintiff Class as defined at 42 U.S.C. Section 2000d. The members of the putative class defendants in question “refuse[d] to adopt” the alternative employment practice.
The Class Plaintiffs, as the Complaining Party under 42 U.S.C. § 2000e–2(k)(1)(A)(ii), made the requisite demonstration to the Respondent [as described in subparagraph (C) as required by 42 U.S.C. § 2000e–2 (k)(1)(A)(ii)], and the Respondents failed to implement training, thereby causing unfair employment practices and disparate impact. The Alternative Employment Practice and its demonstration, referencing subparagraph (A)(ii), is in accordance with the law as it existed on June 4, 1989 as required by 42 U.S.C. § 2000e–2(k)(1)(C), the National Apprenticeship Act of 1937, section 1 (29 U.S.C. 50).
CLASS LEGAL REPRESENTATION
A legal team has been assembled specifically selected for specialties involved in the litigation pending before the federal court, covered under this JPML Motion. The employee Class is represented by competent legal counsel, assembled based on each attorney’s specialty and capabilities.
An understanding of the team assembled to represent the Class begins with the origin and precedent for the current Class Action, originating in a case decided by Judge Lasker in the Southern District of New York, Percy v. Brennan, 384 FSupp 800, SDNY 73-cv-04279. Albert Percy was one of the class Representatives in the Percy v. Brennan Case involved in developing an alternative employment practice after the failure of NY Governors Executive Order 45.
The legal counsel is a team from diverse backgrounds selected for specific talents, experience and knowledge specifically selected for this litigation and the issues in this litigation, needed to represent the interests of the Class,
Attorney Anthony Robinson of Minority Business Enterprise Legal Defense and Education Fund (“MBELDEF”) is a practicing civil rights attorney. Mr. Robinson as the President and CEO of the MBELDEF, for the past 30 years has spent his impressive career advocating for better opportunities. MBELDEF, a public interest law firm, is an organization that seeks to protect the civil rights of disadvantaged persons, to combat institutional racism, including the right to equal employment opportunity. Attorney Robinson is well experienced in this type of litigation. Curriculum vitae at
Ephraim Savitt, 165 W. And Avenue, New York, NY 10023, Mr. Savitt is well experienced in white color civil and criminal litigation, RICO, mail and wire fraud and Medicaid/Medicare litigation, criminal and civil racketeering litigation. Curriculum vitae at http://percy.alternativeemploymentpractice.com/attachment-3-ephraim-savitt-curriculum-vitae/65739409 .
Joseph V. McBride, 30 East 37th Street, Apt. 5F, New York, NY 10016. McBride has extensive experience with class action litigation and FRCP 23 class issues. Curriculum vitae at
James M. Kernan, 26 Broadway, 19th Floor, New York, NY 10004, became involved in developing the Alternative Employment Practice after the conclusion of Percy v. Brennan, supra,and after Governor’s Executive Order 45 provided in the settlement was declared illegal, unconstitutional and unenforceable, Fullilove v Carey 48 NY2d 376 1979, and Fullilove v Carey 48 NY2d 826 1979.
Mr. Kernan developed the alternative employment practice (“Alternative Employment Practice”) which is the subject of this litigation, as set forth at
The Alternative Employment Practice began development when Mr. Kernan was recruited in 1978 to consult on benefits with Percy’s attorney Dennis R. Yeager Esq. Mr. Kernan worked with the team pursuing an apprenticeship program based on the Federal District Court for the SDNY case Percy vs Brennan supra, which required affirmative action for equal employment opportunity by apprenticeship training in enforcing Presidential EO 11246, a class action brought by Albert Percy, Class Representative for the Percy Class. Mr. Kernan’s role was to provide technical research on apprenticeship needed to implement the relief. Mr. Kernan has represented the Percy Class from the time that he was recruited in 1978 to provide assistance in the preparation of affirmative action apprenticeship training to address the failure of the settlement in Percy v. Brennan supra.
Mr. Kernan’s experience with skills training, now the Alternative Employment Practice in this litigation, began while at advanced Infantry training at Camp Lejeune, North Carolina. As an enlisted US Marine at Parris Island Recruit Depot Platoon 1039, and while at advanced infantry training at Camp Lejeune North Carolina, he was selected to be trained for CORDS: Civil Operations and Revolutionary Development Support for Marine Corps/Naval Combined Action Program (CAPs), a counterinsurgency pacification program of South Vietnam and the United States during the Vietnam War, based on Marine Corps experience in past civic action in the 1920s and 30s in Haiti, Nicaragua, and the Dominican Republic(the “Banana Wars”), President Nixon called it Vietnamization, to restore and rebuild the country of South Vietnam, to rebuild and reclaim the devastated countryside infrastructure working alongside and training local Vietnamese. Mr. Kernan was selected by the US Department of Navy for an appointment pursuant to Title 10 §2107 of the US Code for commissioning as a Second Lieutenant in the US Marine Corps into the CAPs classified under CORDS, trained at Quantico, Virginia Marine Corps base and Rensselaer Polytechnic Institute (RPI), for accelerated advanced engineering training for deployment May 1971.
Then, in the early months of 1971, enemy engagement ceased as the US withdrew from South Vietnam, combat engineering strength went from more than 20,000 to by May 1971 to less than 1000, and CAPs was abandoned. On May 24, 1971 the First Marine Combat Engineer Battalion withdrew from South Vietnam and shipped back to Pendleton, California. The last Marine Corps ground action in Vietnam was in May 1971. The withdrawal which began on January 1, 1971 was complete by the end of May 1971. This was at the same time that anti-war protests were reaching their peak and on June 13, 1971 the Pentagon Papers began to be published by the New York Times.
When the CORDS/CAPs mission as it involved the US Marines was abandoned upon US forces withdrawal and deployment orders were canceled, Mr. Kernan left military service returning to civilian life as a veteran trained as a combat engineer in demolition, explosives and ordnance, skilled in civil and mechanical trades for demolition support, field construction of machinery, structures, systems and controls, putting his military experience and training to use with development of an alternative employment practice.
Recruited by and working with attorney Dennis R. Yeager Esq. after the conclusion of the Percy v. Brennan Case 73-cv-04279, led to Mr. Kernan’s handling the case of Lancaster Development, Inc. v. Ross 82 A.D.2d 1013, which identified the need for a framework to provide employee benefits, including apprenticeship, to meet supplemental wage benefit requirements in compliance with the New York State Labor Law §220 and the federal Davis-Bacon Act 40 USC §§276a to 276a-5. The plan was developed to fit the framework required of Percy v. Brennan, supra.
With training knowledge from CORDS/CAPs to reach the hearts and minds of disadvantaged persons, paid OJT apprenticeship to meet the affirmative action demands of Percy v. Brennan, was developed. This became the Percy Program Alternative Employment Practice, providing benefit programs in compliance with the US Davis-Bacon Act (40 USC §§276a to 276a-5) and Article 8 of the New York State Labor Law, providing 24 hours of protection for health, disability, medical care and lost wages, encouraging workers to stay with their employer.
The Percy Program, http://percy.alternativeemploymentpractice.com/attachment-25-9-nycrr-section-345-executive-order-no-45-2017/65739447 , which includes apprenticeship, was developed to address the failed Percy vs Brennan decision and the Lancaster decision and to provide affirmative action that would benefit employees on public work projects, was approved by the Defendant United States Department of Labor.
By a letter of direction to Mr. Kernan of June 14, 1984, the United States Department of Labor, Employment Standards Administration Wage and Hour Division advised that the provisions of the Program that he worked on and the accompanying trust and adoption agreements were “bona fide” fringe benefit plans within the meaning of the Davis-Bacon Act and the applicable regulations of 29 CFR Part 5.
On January 25, 1991, after the 1991 amendment to the Civil Rights Act of 1964 Title VII, Mr. Kernan obtained association approval for an apprenticeship sponsor under regulation [part 601] and Article 23 of the New York State Labor Law, qualified under the 1937 National Apprenticeship Act section 1 (29 U.S.C. 50) under U.S. Department of Labor’s Bureau of Apprenticeship and Training (BAT) and C.F.R.T. 29, Subt. A, Pt. 29 and Pt. 30. (the Fitzgerald Act). Registration of the Percy Apprenticeship Program under the regulation 12 N.Y.C.R.R. 601.8 that existed when the Oriska Corporation program was registered, remains in full force and effect
In 1994 the apprenticeship programs established as an Alternative Employment Practice was provided with workers’ compensation insurance coverage as part of risk-management and loss control by an insurance carrier. The Alternative Employment Practice incorporates apprentice training into the workers’ compensation loss control and safety training of employees, by enrolling new entrants to the workforce to work alongside existing journeypersons, growing the depth of skilled workers, skilled workers whose ranks are being diminished through age and attrition. The Alternative Employment Practice is paid on-the-job apprentice training and continuing education involving apprentice training under the Fitzgerald Act (29 U.S.C. §50 commonly known as the National Apprenticeship Act of 1937, section 1 (29 U.S.C. 50) under U.S. Department of Labor’s Bureau of Apprenticeship and Training (BAT) and C.F.R. T. 29, Subt. A, Pt. 29 and Pt. 30.
Work processes have been approved for on-the-job training and related classroom instruction for skilled occupations: carpenter, heating, ventilating and air conditioning, plumber, steam fitter, mason, steelworker, roofer, operating engineer, electrician, and skilled laborer. In development are personal care, health care workers, nurse aide, activity director, dining services, environmental services, home health aide, rehabilitative aide, medication aide, hospital maintenance worker, emergency medical technician, firefighters and other first responders, the list is virtually unlimited and supported by the library of the United States Department of Labor and the Library of Congress.
Mr. Kernan has been a certified risk control and return-to-work specialist under New York State Department of Labor Industrial Code Rule 59 & 60 since 1997, a licensed Professional Engineer since 1976 and admitted to practice law in New York since 1977.
In 1999, Mr. Kernan was appointed by the Commissioner of the New York State Department of Labor to the Apprenticeship Training Task Force to establish guidelines for classroom instruction in the skilled trades, representing disadvantaged persons in relation to apprenticeship and bonding.
Mr. Kernan was appointed by former US Secretary of Labor Alexis M. Herman as a member of ERISA §3(40) Negotiated Rulemaking Advisory Committee, for the first rulemaking undertaken by the United States Department of Labor Pension & Welfare Benefits Administration. Mr. Kernan was awarded a commendation by Secretary of Labor Herman in April 2000 for my two years of voluntary pro bono work on the Rulemaking Committee, which ultimately resulted in the publication of the ERISA §3(40) Rule.
Mr. Kernan has received a designation as an Associate in Fidelity & Surety Bonding by the Chartered Property and Casualty Insurance Underwriters Society.
The skilled occupations are in constant need of new and experienced personnel able to handle the many changing aspects of the industry where the range of experience required for workers is always evolving. Continuing education will allow employees to be trained and be up-to-date on new equipment and methods and to be able to handle the day-to-day operations that all depend upon.
As reported in the New York Law Journal:, A landmark class action case, Percy v Brennan, was filed in the Southern District of New York in 1973 on behalf of minority persons seeking training in jobs in the New York construction industry.
Al Percy continues to fight so the next generation receives the on-the-job apprenticeship training that was promised.