Outten & Golden: Empowering Employees in the Workplace

Kavanaugh: Threat to Workers and to OSHA

July 11th, 2018 | Jordan Barab

While most of the discussion of President Trump’s nomination of Brett Kavanaugh to the Supreme Court focuses on the possibility that he will be the deciding vote to repeal Rowe v. Wade or that the will bend over backwards to help Trump out of the Russia investigation, there is clear evidence that Kavanaugh is overly friendly to corporate America, and hostile to workplace safety, the Occupational Safety and Health Act and the environment.

In 2010 a killer whale dismembered and drowned a Sea World trainer, Dawn Brancheau, in front of hundreds of horrified men, women and children looking forward to a day of fun and frolic with sea animals. The whale that killed Brancheau had been implicated in three previous human deaths.

OSHA issued a $70,000 willful General Duty Clause Citation against Sea World and ordered the company to reduce the hazard by physically separating trainers from the whales. OSHA proved that Sea World and its employees knew from previous incidents and close calls that the all of its killer whales were dangerous, and that Tilikum, the whale that killed Brancheau, was particularly dangerous.  Experts also described a feasible means of protecting employees — actions that Sea World in fact implemented following Brancheau’s death.

The Occupational Safety and Health Review Commission upheld OSHA’s citation, and Sea World appealed to the Court of Appeals. The D.C. Circuit court decided 2-1 in favor of OSHA. The Court found that  “There was substantial record evidence that Sea World recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable,” and that there was substantial evidence that there were feasible means to protect employees without impacting the business. The majority opinion upholding OSHA’s action was written by Circuit Judge Judith Rogers. Also supporting OSHA was Chief Judge Merrick Garland.

The lone dissenter, opposing OSHA’s citation, was Circuit Judge Brett Kavanaugh.

According to former OSHA Assistant Secretary David Michaels, “In his dissent in the Sea World decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.”

Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.  —  David Michaels

Garland, as you may remember was nominated to the Supreme Court in 2016, following the death of Supreme Court Justice Antonin Scalia. Republicans, led by Senate Majority Leader Mitch McConnell, infamously refused to consider Obama’s nomination, allowing Trump to appoint Neil Gorsuch to the Court. And the lead attorney representing Sea World was Eugene Scalia, son of deceased Justice Antonin Scalia.

Are Whale Shows A Sport Like Football?

Kavanaugh calls OSHA’s action “arbitrary and capricious” because regulating the safety of killer whale shows is allegedly no different than regulating the safety of tackling in football, or speeding in sports car racing, or punching in boxing — things in which OSHA has never involved itself.  And just as you’d have no football if you didn’t have tackling, or no sports car racing if you didn’t have speeding, there would allegedly be no Sea World if there was no close human contact with killer whales.

One problem with this argument, as Rogers points out, is that no one — except Kavanaugh — claims that whale shows are a sport where you are there to see who “wins.”

Or, to put it more bluntly, people go to boxing matches to watch people punch each other, and go to football games to watch one team physically stop the other from scoring. But tourists — including small children — go to Sea World to watch attractive trainers lovingly interact with adorable sea creatures. Killer whale shows are not supposed to be modern gladiatorial contests where the audience looks forward to seeing whether the trainers will successfully keep their limbs attached or finish the show bleeding and dead at the bottom of a pool.

Not even Sea World made the football/car racing/boxing analogy, Rogers and Garland point out. By making that argument, Kavanaugh is just makin’ stuff up — adding his own opinions on matters that weren’t even part of the case.

Second, as the majority opinion points out, “physical contact between players is ‘intrinsic’ to professional football in a way that it is not to a killer whale show.” Spectators can take pleasure from a whale jumping out of the water and doing back flips even without close personal contact with a human trainer.

In fact, the show went on even after the OSHA citation. Following Brancheau’s death, Sea World implemented many of the controls that OSHA recommended in its General Duty Clause citation — and still managed to attract customers to the park — and even to the killer whale shows — without the close personal contact.

Hostility Toward OSHA

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. Comparing killer whale shows to football, boxing, car racing, as well  as other “extremely dangerous” sports such as “Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball….” etc., etc., Kavanaugh objects to OSHA’s “paternalistic” intervention because “the participants in those activities want to take part.”

And then goes on to state (cue the heroic music)

To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.

He then asks:

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?

Not “the bureaucracy at the U.S. Department of Labor,” according to Kavanaugh.

Happily, Garland and Rogers were more knowledgeable about the Occupational Safety and Heath Act than Kavanaugh. They point out that the OSHAct puts the duty on the employer to create a safe workplace, not on the employees to choose whether or not they want to risk death — especially when the employer can make the workplace safer.

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.  Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.  Maybe the worker even liked doing dangerous work.  Employers also escaped responsibility by showing that the worker was somehow negligent. (Interestingly, Sea World originally blamed Brancheau for her own death because she hadn’t tied her hair back.)

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.

Rogers and Garland were forced to remind Kavanaugh that the employer’s duty under the OSHAct isn’t reduced by “such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.”

Workers Comp laws, originally passed in the early 20th century, were supposed to be no-fault. It didn’t matter who was at fault, if the worker was hurt, the worker got compensated.  And the OSHAct, passed in 1970, further states clearly and unequivocally that the employer is responsible for ensuring that the workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and sets up a mechanism to enforce the law and penalize employers who violated it.  Even if the macho employee wants to defy death, the law states that the workers may not work at heights without fall protection or go down into deep trenches without shoring. And it’s the employer’s job to make sure that employees are not endangered.

Did Brancheau enjoy her job? Undoubtedly.

Did she “willingly accept the risk of violent death as part of their job?”  Unlikely. And legally irrelevant.

Did she deserve a safe workplace? Absolutely.

Nothing New Under the Sun?

Kavanaugh also objected to OSHA’s citation because the agency allegedly “departed from tradition and stormed headlong into a new regulatory arena.”

Well, first, Congress put the General Duty Clause into the OSHAct to address “unique” recognized hazards for which there is no OSHA standard.

Second, objecting to OSHA “storming into a new arena” brings back memories of the arguments used by previous OSHA heads, politicians and the health care industry when unions petitioned the agency in the late 1980’s for a bloodborne pathogens standard to prevent HIV infection and over 300 health care worker deaths a year from hepatitis B. At that time, infectious diseases were “a new regulatory arena.” Thankfully, Judge (or Justice) Kavanaugh wasn’t around then to rule on that standard. Thousands of health care workers owe their lives to OSHA’s move into the “new regulatory arena” of infectious diseases.

Bad for the Environment

Ken Ward of the Charleston Gazette-Mail reminds us that Kavanaugh is not only anti-worker (and anti-OSHA), but also anti-environment (and anti-EPA). In 2011, Kavanaugh was the lone dissenter in a case where Arch Coal had challenged the Environmental Protection Agency’s authority to cancel a mountain-top removal permit that had been issued by the U.S. Army Corps of Engineers. The 2,300-acre Spruce operation that would have buried more than seven miles of streams.  “The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.”

Kavanaugh’s argument is that EPA didn’t do a proper cost benefit analysis. Suddenly becoming a champion of working people and unions (at least when it benefits the company), Kavanaugh argued that EPA had failed to factor in the costs of  putting more than 300 United Mine Workers union members out of work.  Once again, Kavanaugh was making stuff up (legally). Arch Coal hadn’t even made that argument.

Kavanaugh also criticized the agency’s examination of potential damage to aquatic life as an “utterly one-sided analysis.” Perhaps the fish had also “accepted the risk” of living in streams near coal deposits.

One of the judges in the majority was an Ronald Reagan pick, and the other was appointed by President Obama.

Conclusion

Kavanaugh stated at last night’s press conference that one of his legal principles is that “A judge must interpret statutes as written.”  He might have added that to interpret the law as written, one must first read and understand the law.

He also warmly told the world that his mother was a prosecutor whose trademark line was: “‘Use your common sense. ‘What rings true? What rings false?’ That’s good advice for a juror and for a son. ”

Indeed it is. And maybe he could explain to the parents and husband of Dawn Brancheau why it rings false to him that the company responsible for their daughter’s safety should be held responsible for her death —  and held to the same standard as every other employer in the country.

Until he does that, he doesn’t belong on the Supreme Court.

This blog was originally published at Confined Space on July 10, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

July 10th, 2018 | Moshe Marvit

On Monday, President Donald Trump announced his nomination of conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed, Chief Justice John Roberts, a fellow conservative, will become the ideological and political center of the Supreme Court, and protections for women, minorities, voting rights, civil liberties and more could come under threat. Workers and labor unions should be particularly concerned about Judge Kavanaugh’s history of siding with businesses against workers and for pushing a deregulatory agenda.

In his 13 years on the Court, Chief Justice Roberts has helped to unleash unlimited corporate money into politics, open the door to mass voter disenfranchisement and lay the groundwork to strengthen the power of corporations over consumers and employees. He has also, in the words of Justice Elena Kagan, led the conservative project of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” This is who will now be the swing vote on the Supreme Court if Kavanaugh is confirmed.

Kavanaugh, who is 53 years old, once clerked for Judge Alex Kozinski, who abruptly retired last year after a long history of sexual harassment was revealed. Previously, Kavanaugh worked with Kenneth Starr to investigate President Clinton and draft the report that lead to Clinton’s impeachment. Over his last 12 years on the D.C. Circuit Court of Appeals,  Kavanaugh has shown himself to be an extraordinarily conservative judge. An analysis by Axios determined that Kavanaugh is just slightly less conservative than the most conservative member of the Court, Clarence Thomas.

A review of Judge Kavanaugh’s decisions regarding workers’ rights shows a disturbing trend of siding with employers on a range of issues.

In Southern New England Telephone Co. v. NLRB (2015), Kavanaugh overruled the NLRB’s decision that the employer committed an unfair labor practice when it barred workers from wearing T-shirts that said, “Inmate” on the front and “Prisoner of AT$T” on the back. Under the law, employees are permitted to wear union apparel to work, and the NLRB found that these shirts were protected under the National Labor Relations Act. The Board rejected the argument that “special circumstances” warranted limiting workers’ rights, because no reasonable person would conclude that the worker was a prison convict.

Kavanaugh rejected the Board’s legal analysis, writing, “Common sense sometimes matters in resolving legal disputes. … No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” Kavanaugh was undoubtedly correct in his understanding of the company’s desire not to have workers wear such shirts, which is precisely why the workers did so. What the unions did in wearing the shirts was apply pressure in a labor dispute in a manner that the law has long allowed. However, Kavanaugh criticized the Board’s analysis, writing that “the appropriate test for ‘special circumstances’ is not whether AT&T’s customers would confuse the ‘Inmate/Prisoner’ shirt with actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image.” By shifting the focus to the employer’s public image, Kavanaugh undercut the right of workers to publicly protest and dissent.

In Verizon New England Inc. v. NLRB (2016), Kavanaugh overturned the NLRB’s ruling that workers could display pro-union signs in their cars parked in the company parking lot after the union waived its members’ right to picket. In his decision, Kavanaugh held that “No hard-and-fast definition of the term ‘picketing’ excludes the visible display of pro-union signs in employees’ cars rather than in employees’ hands, especially when the cars are lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line.” Therefore, according to Kavanaugh, the union’s waiver of the right to picket also applied to signs left in cars.

Judge Kavanaugh again overruled a pro-worker NLRB decision in Venetian Casino Resort, L.L.C. v. NLRB (2015). The NLRB had determined that the casino committed an unfair labor practice when, in response to a peaceful demonstration by employees (for which they had a permit), the casino called the police on the workers. Citing the First Amendment, Kavanaugh held that “When a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.” Calling the police to enforce state trespassing laws, Kavanaugh concluded, deserved such protection.

In UFCW AFL CIO 540 v. NLRB (2014), Judge Kavanaugh issued an anti-worker decision involving Wal-Mart’s “meat wars.” After 10 meat cutters in Jacksonville, Texas, voted to form the first union at a Wal-Mart, the company closed its meat operations in 180 stores and switched to pre-packaged meats. (The notoriously anti-union Wal-Mart denied that its decision had anything to do with the union vote.) After the switch, Wal-Mart refused to bargain with the meat cutters, arguing that they no longer constituted an appropriate bargaining unit. Judge Kavanaugh agreed with Wal-Mart’s argument, but did write that Wal-Mart must bargain with the union over the effects of the conversion of the employees.

Judge Kavanaugh has consistently sided with employers in labor law cases, to the detriment of workers’ labor rights. He also has argued that the Consumer Financial Protection Bureau, established in 2011, is unconstitutional, and Aaron Klein, director of the Center on Regulation and Markets at the Brookings Institution, has said that his nomination “could reverse over a century of American financial regulation.”

Labor advocates should be extremely concerned about this ideological bent if Kavanaugh becomes a justice on an already very business friendly—and conservative—Supreme Court.

This article was originally published at In These Times on July 10, 2018. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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When Workers Don’t Get Paid: 3 Contributors to Wage Theft

July 9th, 2018 | Danielle Higley

Wage theft, sometimes known as time theft against employees, has been in the news a lot lately. That’s due to a study by the Economic Policy Institute (EPI) and another by Elizabeth Tippett of the University of Oregon, featured on NPR’s Planet Money podcast.

Recently, TSheets, a time tracking software company, ran a survey of their own. Their survey found just under 10 percent of employers admit to taking time off employee timesheets every day. Over 60 percent of those take off 30 minutes per day or more. Applied to the broader, hourly workforce across the U.S., TSheets estimates workers are losing out on $22 billion in earnings each year. Here are three known factors contributing to those billions lost.

Wage theft contributor 1: Unpaid breaks

The government has some stipulations in place when it comes to breaks for meals, namely “The employee must be fully relieved from duty for the purposes of eating regular meals.”

The trouble is, some employees, particularly those in the healthcare or education sector, aren’t often able to walk away from their work completely. They end up working straight through their lunch, even while clocked out. For them, it’s tough to take time off when part of their performance, and potentially their compensation, is based on their responsiveness.

The best solution — both from an employee perspective and from employers who want to avoid an expensive FLSA lawsuit — is to figure out how to accommodate employee breaks, so individuals are free to take advantage of that time of rest. At the very least, employers should be talking to employees and getting their input on how to improve the situation.

Wage theft contributor 2: Timesheet rounding

Timesheet rounding is a setting in time tracking software that rounds an employee’s time when they clock in or out to the nearest minute, five minutes, or 15 minutes. It’s common for an admin to set up rounding to the nearest minute, as payroll solutions like QuickBooks aren’t set up to process seconds.

But whether a company rounds to the nearest minute or the nearest 15 minutes isn’t the problem. It’s the direction in which the rounding occurs. Say an employer has set timesheet rounding to go up to the nearest five minutes when an employee clocks in, but down to the nearest five minutes when an employee clocks out. When the employee comes in at 8:31, the timesheet shows 8:35. When they clock out at 5:04, the timesheet shows 5:00. That employee has missed out on 8 minutes of paid time.

This problem becomes all the more challenging when the time tracker is set to round to the nearest 15 minutes. On this matter, the U.S. Department of Labor states employers cannot always round down. “Employee time from one to seven minutes may be rounded down, and thus not counted as hours worked, but employee time from eight to 14 minutes must be rounded up and counted as a quarter hour of work time. See Regulations 29 CFR 785.48(b).”

Wage theft contributor 3: Unpaid overtime

Did you know it’s illegal to withhold wages, even when those wages include overtime an employee has worked without consent or prior approval from a manager? The Department of Labor makes it very clear that “work not requested, but suffered or permitted is work time.” That means it doesn’t matter if the employee worked when they weren’t supposed to — they must be paid for the time they put in.

Many employers are also unaware that some travel time is considered eligible for overtime pay. For instance, while the time spent commuting from work to home or vice versa shouldn’t be counted, the commute from home to a job in the case of an emergency could be. Travel made on behalf of work, in some instances, also has the potential to be counted as overtime.

Wage theft conclusions

Wage theft is a complicated issue, and it’s one that employees and the lawyers, HR personnel, and union reps who represent them should be educated on. If you suspect an employer is taking wages from employees, it’s a good idea to contact your state’s labor agency to learn more about wage theft claims in your state.

Next, employees should try to find out if their employer rounds timesheets (and in which direction), in addition to documenting all hours they’re supposed to be paid and comparing those times to the ones listed on their paystubs. If the numbers don’t line up, it might be time for a conversation.

Everyone deserves to be paid for the time they put in. When employers intentionally or unintentionally violate that right, it isn’t just morally reprehensible — it’s against the law.

About the Author: Danielle Higley is a copywriter for TSheets by QuickBooks, a time tracking and scheduling solution. She has a BA in English literature and has spent her career writing and editing marketing materials for small businesses. Last year, she started an editorial consulting company.

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Serena Williams’ French Open ordeal proves maternity rights in pro sports have a long way to go

July 6th, 2018 | ThinkProgress Staff

Last month, Serena Williams — the greatest athlete of our time (don’t @ me, it’s true) — played in her first major tournament since giving birth to her daughter. But, as excited as fans and media touts were to have her back competing, most were outraged when they discovered that she would have to enter the French Open unseeded, as her protected No. 1 ranking from the Women’s Tennis Association did not apply to the tournament’s seeding.

Ivanka Trump weighed in on Twitter, saying that Williams was being “penalized professionally for having a child,” and calling on the Women’s Tennis Association (WTA) to change the rule “immediately.” USA Today said that Williams was being “punished” for having a baby.

The outrage cycle was effective. Wimbledon seeded Williams No. 25 for the Championships — not high enough for the liking of many, but far better than nothing — and the U.S. Open announced that it would change its seeding protocol to account for pregnancies. Behold, the power of Serena! Mission accomplished, right?

Well, not so fast. Because when it comes to maternity rights for professional female athletes, seeding for top players isn’t even in the top half of the list of their biggest concerns. And the outsized focus on Williams’ seeding folderol could end up distracting attention from the biggest problems that pregnant athletes face — both during their pregnancies and in their comebacks — such as insurance, protected contracts, and child care.

If those sound like the kinds of basic things that should have already been taken care of long ago, well then, you’re absolutely right. Unfortunately, the ideal is far from the reality.

Women who compete in sports can’t simply continue to work right up until the moment they’re ready to pop like their desk-bound counterparts, so it’s not unusual for them to take a year — or more — out of competition and training. And in many cases, these pro athletes have little-to-no guaranteed income during that time.

In team sports, such as basketball, they’re sometimes eligible to earn 50 percent of their contract when they’re off for maternity leave. But even that isn’t a given. For WNBA players, it is only applicable if they’re currently under a contract; players who are free agents or on expiring contracts when they get pregnant are in a much more precarious position. And while women’s soccer players on the U.S. Women’s National Team (USWNT) are eligible for maternity leave, rank-and-file players in the National Women’s Soccer League, who already earn much less money than their national team counterparts, don’t have any such maternity protections.

But the situation is even worse in individual sports, where the fulfillment of sponsor contracts hinge upon results — or at least appearances — in tournaments, and where if you’re not competing, you’re obviously not getting any prize money.

There was, however, a recent breakthrough for athletes seeking a solution to this problem — though it didn’t come from Serena. Just last week, Stacey Lewis, a two-time major champion on the Ladies’ Professional Golf Association Tour (LPGA), made a landmark announcement: One of her main sponsors, KPMG, is going to pay Lewis the full value of her contract while she is off of the LPGA Tour on maternity leave. Believe it or not, this is the first time this has happened in LPGA Tour history.

“I think a lot of people were shocked to learn that that had never happened before,” Lewis told CNN. “Players that were, that are moms and have kids, they thought it was the greatest thing ever, just because they had been in my position before and they know what that feels like. They just thought it was — I mean, they thought it was unbelievable.”

Getting pregnancy leave written into contracts in both team and individual sports would be a huge boost for pregnant athletes, as would arranging insurance options that would be affordable and effective even if a player found out they were pregnant during, say, free agency. But these mothers also need support when they return to pro competition as well. Babies don’t just watch themselves, you know.

The NWSL currently provides no child care assistance for its players, and neither does the WNBA. (Many individual teams have very family-friendly atmospheres, but that is not the same as actually assisting with child care.) And, in the WTA, former WTA No. 1 Victoria Azarenka, was shocked when she returned from pregnancy last year to find out that the women’s tennis tour offered far less child care than the men’s tour, because historically men have traveled with families, while women have not.

“I have been already talking about this point (of needing daycare services at tournaments) to some of the people in WTA,” Azarenka told reporters. “From my own power, I’ll do anything to make that happen, because I think it’s really important. The guys [playing the ATP Tour] do have that luxury of having the nurseries and stuff at every event and I think it’s time for women to have the same benefit. Because I think for women it’s much more important and harder.”

This year, Azarenka, who is a member of the WTA Player’s Council, said she understood why people were upset with the fact that Williams wasn’t seeded upon her return to professional tennis. However, she pointed out that she and Williams are the exception, not the rule, both when it comes to talent and financial means. They have earned enough in their careers to afford all the child care they need; and have had enough success to earn enough wild cards to get into any tournament they want as they get their body and game back into form.

On that note, in addition to getting more day care services at tournaments, Azarenka wants to work on extending the amount of time that players returning from pregnancy can use their protected ranking (so that they don’t have to rush back to competition), and she would like to see the protected ranking used at more tournaments than a typical injury layoff permits.

“My focus right now is to protect women who want to start a family,” Azarenka said, “because it’s still unusual for women to have a family during their career, especially in tennis.”

In general, maternity policies for pro athletes need to focus on providing care for the parent and child during pregnancy, and providing support and time for the parent during their comeback. This doesn’t mean coddling these athletes — or handing them a competitive advantage. Indeed, the athletes should still have to do the necessary work to get into the physical condition to justify their spot on the roster, earn their place back in the starting lineup, or, as it may be, qualify for a seed in a major tournament.

It’s definitely good that a larger discussion of fair policy governing the seeding for players coming back from maternity leave, has come out of Williams’ experience on the professional tour. But it’s crucial that the conversation doesn’t end there. The correct policies and resources need to be articulated and made available in order to keep pregnancy and child care from being a impenetrable barrier for pro athletes, especially those who aren’t household names.

About the Author: Lindsay Gibbs is a sports reporter at ThinkProgress.

This article was originally published at ThinkProgress on July 5, 2018. Reprinted with permission.

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Minimum wage workers just got a raise in two states, D.C., and 15 cities or counties

July 5th, 2018 | Laura Clawson

Minimum wage workers in two states, Washington, DC, and 15 cities and counties got a raise on Sunday. These state and local governments had passed laws to increase the minimum wage on a schedule, with July 1 and January 1 being the most common dates for raises.

  • Oregon doesn’t have a single statewide minimum wage, but it went up! The minimum is now $10.75 as a standard, $10.50 in “nonurban” counties, and $12 in the Portland metro area.
  • Maryland’s minimum wage went up to $10.10. In Maryland, Montgomery County boosted its minimum wage from $11.50 to $12.25
  • Washington, D.C., rose from $12.50 to $13.25.
  • Eleven California cities saw minimum wage increases, with Emeryville the high point at $15.69 an hour for larger businesses. Los Angeles, Los Angeles County, Malibu, Milpitas, Pasadena, and Santa Monica all went from $12 to $13.25. San Francisco rose from $14 to $15.
  • Workers in Portland, Maine, are seeing a modest bump from $10.68 to $10.90.
  • In Illinois, Chicago went from $11 to $12 and Cook County went from $10 to $11.

The federal minimum wage remains stuck at $7.25 an hour, with Republicans continuing to refuse to consider an increase. Perhaps most depressingly—and showing most clearly where Republican priorities are—Birmingham, Alabama, and Johnson County, Iowa, were both supposed to have minimum wage increases on July 1, but didn’t. Their state legislatures stepped in to pre-empt local governments from improving life for workers.

About the Author: Laura Clawson is labor editor at DailyKos.

This blog was originally published at DailyKos on July 4, 2018. Reprinted with permission.

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Janus Is Here—But Don’t Ring the Death Knell for the Labor Movement

June 27th, 2018 | Moshe Marvit

In a major decision that will impact labor for decades, the U.S. Supreme Court has just declared that all public-sector workers who are represented by a union have a Constitutional right to pay the union nothing for the representation.

The Court overturned its landmark 1977 decision in Abood v. Detroit Board of Education, which permitted public-sector unions to charge fair-share fees that covered the costs of providing collective bargaining and contract administration to non-members that were represented by the union. Today, in Janus v. AFSCME, the Supreme Court has held that the First Amendment prohibits public employee unions from charging a mandatory fee for the costs of representation. Therefore, going forward, all public-sector employees will be under so-called “right to work,” the union-busting legal framework that denies unions the ability to charge workers dues. This decision will directly and indirectly impact how unions are structured, how they engage with their members and objectors, how they organize and educate and how they are funded. But this decision will not destroy, defund or decimate labor.

First off, the Janus decision will only directly impact less than half of the labor movement. This is because the ruling only applies to public-sector workers: federal, state and local government employees. However, federal employees (including postal employees) have long been under so-called “right to work,” so Janus will have minimal direct impact on them. Furthermore, many state and local public-sector workers are already in “right to work” states, so this ruling will have no effect on them. This is not to say that the whole labor movement will not be negatively impacted by a decline in membership among public-sector unions, but it is important to remember that Janus will not place all union members under “right to work.”

It is difficult to predict what effect Janus will have on union membership overall. There is a good chance there will be at least some decline in membership, thanks to the free-rider problem: the likelihood of some workers who are not opposed to the union choosing to pay nothing simply because they can get something for nothing. However, state-level data on the decline of union membership following the passage of state “right to work” laws is not necessarily a good predictor of what will happen after Janus, because most of the state laws are a mixture of anti-worker laws that include “right to work.” For example, in Wisconsin, union membership declined 38 percent  between 2010 (the year prior to the passage of Act 10) and 2016. However, Act 10 contained a host of other provisions, such as the elimination of collective bargaining for public-sector workers.

Following Janus, unions will now have to fight for every union member to ensure they choose to remain members and pay their dues. Right-wing groups of the sort that brought Janus, Friedrichs and other anti-union cases, will mount a nationwide campaign to get members to quit the union. Many labor unions that have not been strong in engaging their membership will have to keep up a constant level of contact and organization to maintain their memberships or risk losing big. They will have to make the case to members why they should stay with the union and pay dues, and they will have to make that case often.

Unions are considering a number of options for getting state laws changed, or changing internal policy, to adjust to Janus. New York passed a law in anticipation of Janus, which other states are considering, that would allow unions to deny or charge for some services, such as grievance representation. Some states are considering laws that would require workers who are not members of the union to pay for representation in grievance procedures. This approach would have the benefit of discouraging free-ridership by not providing the full benefits of membership to those workers who choose not to join. However, it carries the danger of turning unions into pay-for-service organizations that will find themselves turning away workers in their time of need.

Labor law professor Samuel Estreicher has proposed an interesting approach that unions could take that would reduce the rate of possible free-riders, not require legislation, and not require unions to turn away non-paying workers. Estreicher argues that unions should require workers who choose not to pay their union dues to instead donate the money to a 501(c)(3) charity. Unions already permit religious objectors to take this route, and Estreicher suggests expanding the program to any objectors. Since this approach would require all workers to pay an amount equivalent to their dues—but would let them decide if the recipient was the union representing them or a charity—it would separate the true objectors from the free-riders.

The allowance of fair-share fees, in both the public and private sector, was in part intended to promote labor peace, and the imposition of “right to work” may lead to more strikes and labor unrest. The massive teacher strikes this year in West Virginia, Kentucky, Oklahoma, Arizona, Colorado and North Carolina have all taken place in “right to work” states, and this commonfact was likely no coincidence. Workers in “right to work” states tend to have lower salaries and fewer benefits. Meanwhile, unions are weaker, possibly because they serve as a moderating force to avoid direct—and often illegal—confrontation. These effects from “right to work” can create an environment where workers’ frustration grows, they have few options to better their situations without direct action, and they organize at a grass-roots level. After Janus, with “right to work” becoming the new rule for all public-sector workers, there may be a break from a long period of U.S. history when strikes have been rare.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.
This article was originally published at In These Times on June 27, 2018. Reprinted with permission. 

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Gay teacher says she suffered months of homophobic harassment with no end in sight

June 26th, 2018 | Casey Quinlan

A gay middle school English teacher, Amy Estes, said she had to take a mental health leave after student harassment grew more and more intense and her school did little to mitigate the problem.

It all began when a former student asked to stay in touch with her and followed Estes on Instagram. After Estes posted a photo of herself and her partner, the former student saw the photo and spread word to other students at Spring View Middle School in Rocklin Unified School District in California, Estes told ThinkProgress.

“So much of the conversation was negative and hurtful. It wasn’t like ‘She’s gay, that’s whatever,’ it was ‘Oh that’s gross. That’s disgusting,’” Estes said of the hurtful comments students posted about her online.

Estes said she experienced harassment, was told to take down a poster meant to help LGBTQ students feel safe, and felt that the administrators said LGBTQ student would need to adhere to requirements others did not.

Last September, a student approached her to tell her students were talking about her online. She informed the administration, but they minimized it as “middle school drama,” Estes said. She then had a conversation with a student who she believed was one of the most involved in the discussion of her sexuality online, at the suggestion of administration, but the student denied being involved. Estes said that student misbehaved several times in class that were unrelated to the harassment, and she reached out to his mother. But the mother accused of her of making it personal, Estes said.

“The tone of email was that I was retaliating against her child for something he didn’t do and that she had seen the things on Instagram and Snapchat and that was my private life, and how dare I rope her child into it?” Estes said. “And I was blindsided at that point. I didn’t realize how huge it had gotten. So I went to the administration again and still nothing happened. They basically said ‘OK we will deal with that parent from here on out but there is nothing we can do otherwise’ and I said ‘Well I think we should address this on a larger scale.’”

Estes said that since she shares English with a group of 120 students and three other teachers, she suggested that teachers have a conversation with the whole group to confirm that “Yes, I’m gay, and you figured it out. Here’s how we are going to deal with it.”

“The principal’s words exact words were ‘Well we don’t want you coming out unless it absolutely comes to that,’” Estes said.

Although to many Americans, there appears to be progress in visibility and legal protections for the LGBTQ community since same-sex marriage became the law in all 50 states in 2015 and films depicting queer relationships have flourished at award ceremonies, the reality is very different for queer and trans teachers. There is no federal law that gives specific protections to queer and trans workers. Only 20 states and Washington, D.C. have these protections for both queer and trans workers. California is among those states and public schools are required to teach LGBTQ history, but at Spring View, Estes still faced barriers to LGBTQ inclusion.

“There are students in my classroom that I know are queer and they’re seeing this, like, ‘Holy cow, this is happening to an adult. What would happen to me if I were out with my peers?

A 2017 Center for American Progress survey found that 36.5 percent of all people in the LGBTQ community surveyed hid a personal relationship and 62.9 percent of those who experienced some kind of discrimination hid personal relationships. In the workplace, LGBTQ people of color were more likely to hide gender identity and sexual orientation from employers than white people in the LGBTQ community. A 2017 report by the Harvard T.H. Chan School of Public Health, the Robert Wood Johnson Foundation, and National Public Radio found that one in five people in the community said they were discriminated against when being considered for a promotion, applying for a job, or looking for housing.

Estes’ experience is similar to other teachers who administrators failed to support when they were criticized by parents who disapproved of queer teachers being out in the classroom or simply acknowledging the existence of people in the LGBTQ community. Of course, one of the main differences is that Estes was outed and did not get the chance to control how people learned she is gay. But the lack of administration support once the information came out fits a pattern. A Texas elementary school teacher, Stacy Bailey, was suspended after she mentioned her wife to students. A Kentucky chorus teacher, Nicholas Breiner, lost his job a month after he came out as bisexual on Instagram, which he said he did to show LGBTQ students they are not alone. Breiner said the deputy superintendent questioned him about his sexual orientation. In 2015, a teacher read a book about two princes falling in love and dealt with significant parent backlash, but administrators did not have his back. Teachers have lost their jobs after getting married.

Estes said there is still a lot of fear among teachers in the LGBTQ community about being themselves in the classroom.

“I don’t want to categorize my district specifically at all but what I have heard from a number of teachers is that despite marriage equality being the law of the land there is still a lot of living in the shadows,” Estes said.

Estes added, “The idea that I could just offhand mention my partner and what our life is like to students — that isn’t something that just happens for gay teachers. It is a reality for many queer teachers that we might have certain legal rights but in terms of just being ourselves, I think there are a lot of unwritten rules. The assumption that my mentioning my female partner somehow that’s going to be turned into pressure for students to be gay or how-to course on gay culture.”

After harassment became worse, Estes took steps toward greater privacy on all of her personal social media accounts. But students found her professional social media and posted hateful language on a professional video on student discipline produced for her master’s program on school leadership, she said. Estes said she went to administrators again and worked on a plan for a lesson on tolerance, with administrative encouragement but without administrative help, to address the issue. Administrators didn’t approve of her approach and said they’d get back to her with revisions but didn’t. Months later, not long after a student made homophobic comments on a school project, and progress stalled yet again, she went to her union representative.

Estes said that after she went to various teachers union representatives who eventually referred her to a lawyer, she thinks some people in the community perceive her as out to make money, but she wants them to know she is doing this for the LGBTQ community.

“There are students in my classroom that I know are queer and they’re seeing this, like, ‘Holy cow, this is happening to an adult. What would happen to me if I were out with my peers?’” she said.

Thirty-three percent of LGBTQ students said they were physically harassed in the past year because of sexual orientation and 23 percent were physically harassed because of their gender, according to a 2014 survey from the Gay, Lesbian & Straight Education Network (GLSEN).

Estes said that, unrelated to the harassment issue, she mentioned the idea of starting a Gay Straight Alliance (GSA) to administrators. A GSA is a student-led group that gives students in the LGBTQ community a safe space to fully be themselves. Some schools have resisted GSAs after conservative residents and parents objected to the creation of these student-led groups. One school district’s board even considered eliminating all student groups simply to avoid the assertion that they were targeting a GSA.

Although it was not a requirement for other clubs to have administrators or counselors at meetings, Spring View said an administrator or counselor would have to be present at GSA meetings, she said.

In 2016, Estes also put up a GLSEN poster meant to affirm queer and trans students, but the school principal asked her to remove it. She followed orders. After that incident and other indications that staff may not be comfortable with talking about LGBTQ issues, Estes went back to the principal to talk about inclusion at the school. She said the principal said she would “see what the district has in mind” and in the 2017-2018 school year, she broached the issue again.

“I felt strongly that I should be able to hang up the safe space sign. So I went to principal again and said ‘I really need to hang this up’ and she said ‘I’ll look into it in the district and in the meantime don’t do anything until I have given you permission to do so’ and so I didn’t. I followed up with her and nothing happened. She never got back to me. When I approached her again, she said I’m still looking into it.”

After struggling with harassment and what appeared to be a lack of concern from administration on how to make LGBTQ teachers and students feel welcome, Estes, who has had anxiety and depression since her teens, took a mental health leave. She is still on that leave until she feels comfortable going back to work.

Community members have spoken in front of the school board to support Estes after the harassment she experienced for months. During the school board meeting earlier this month, school board president Todd Lowell said the Rocklin Unified School District will make sure that “all our students, staff and families feel welcome, safe and supported” and said Estes’ comments were one side of the story, according to ABC 10.

The Rocklin Unified School District said it could not answer all of ThinkProgress’ questions due to pending litigation. However, in response to a question about whether teachers in the LGBTQ community are expected not to be out in the classroom, Diana Capra, spokesperson for the district, responded, “The District has the same expectations of all its teachers.” When asked about the GSA issues Estes mentioned, Capra said, “While we can not comment regarding Ms. Estes specifically due to pending litigation, we can share with you there are Gay Straight Alliance groups at some of our secondary District schools. They are initiated through the regular process to start a student club.”

Capra added that its middle and high schools have wellness programs for students and staff and plan to include parent, guardian and staff resource nights around social emotional wellness strategies. She said it has sent administrators and staff to The Museum of Tolerance, which the district says help “better understand and support students and staff who are LGBTQ.” Capra said staff is implementing strategies for intervention in situations where people are being treated unfairly. The district will also roll out a plan for inclusivity in its schools “that involves engaging staff in examining belief systems and behaviors before it moves into adopting formal programs and strategies, in order to ensure enduring outcomes for our District so all students and staff feel welcome, safe and supported.”

Estes said she doesn’t want a punitive approach for students who participate in this kind of harassment. She said she wants consequences to be more in line with restorative practices that allow students to talk to each other about the hurt they’re experiencing and repair relationships. She has been working with a lawyer to reach an agreement with the school district but did not reach one at the time she spoke with ThinkProgress.
This article was originally published at ThinkProgress on June 26, 2018. Reprinted with permission. 
About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

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Intertwined: The Labor Movement and LGBT Rights

June 25th, 2018 | Richard Trumka

Through all the celebration of LGBTQ Pride this month, there’s been a valuable opportunity to reflect on the hard-fought victories, brutal setbacks, and tenacious struggles that have ultimately delivered so much for so many. And just as importantly, there has been time to think about what lies ahead in that fight for justice.

By the time I was elected president of the United Mine Workers of America in 1982, the fight for LGBTQ rights was already in full swing. Thirteen years after the Stonewall riots, activists were marching, shouting and organizing for the basic dignities they had been denied for so long. It was a groundbreaking movement for equal treatment in all the fundamental facets of life, from employment and housing to health care and personal safety.

These pioneers knew that change wasn’t simply going to be handed down from the halls of power or granted as an act of corporate benevolence. Change would only come when a diverse and united front stood together to demand it. In the face of unrepentant bigotry and blind loyalty to the status quo, grassroots organizing led the way forward.

It’s a basic principle that has always been at the heart of the labor movement. Progress, steadily gained, is fueled by the power of a mobilized community. Every victory in the fight against oppression has ultimately been achieved by that spirit of solidarity.

That’s certainly been true in the ongoing battle for justice on the job. From my first day in the coal mines of southwestern Pennsylvania, I knew that the only way to secure a brighter future was to lock arms and stand together. And that meant leaving no one behind.

That’s why we at the UMWA were so proud to help secure some of the earliest protections for same-sex couples in our members’ contracts, ensuring that all of our comrades had equal access to key benefits. We couldn’t afford to wait until it was popular.

And so unions offered a new refuge for gay workers. A place where full equality wasn’t just a mission, but an obligation.

Over the succeeding decades, LGBTQ Americans have won a flurry of progress. Public opinion shifted in favor of equality. Prominent figures, from sports to entertainment to politics, came out of the closet. Institutional disdain for the community gave way to unbending advocacy of justice. Trans rights were lifted up, the armed forces’ closet door was knocked down, and the constitutional right to marriage was unequivocally affirmed.

Perhaps no movement for social change has achieved so much so quickly. But even in a sea of rainbow flags—and even with marriage equality secured—there still remains too much of the discrimination endured by early protesters.

Today, you are free to marry who you love. But in most states, you can still be fired because of who you are. Unless, of course, you have the protection of a union contract.

The truth is that many of the fights left to be won are based on economic rights. They’re rooted in workers’ relationships with employers. The labor movement knows a thing or two about that.

The AFL-CIO’s constituency group Pride at Work continues to lead the way in advocating for the dignity of LGBTQ workers. The rights codified in so many union contracts over the years—from couples’ benefits to nondiscrimination to trans health care—have made headway that simply couldn’t have been gained otherwise.

For many LGBTQ Americans, a union card is their only form of employment protection. But more importantly, it signifies membership in a large and growing family ready to fight when it matters most.

That’s what the labor movement is all about. And it’s how the progress of tomorrow will be won.

So, here’s my ask for this Pride Month: Join a union. Check out Pride at Work and tackle the workplace challenges facing LGBTQ Americans the way this movement always has: Organize, organize, organize.

This blog was originally published at AFLCIO.org on June 26, 2018. Reprinted with permission. 

About the Author: Richard L. Trumka is president of the 12.5-million-member AFL-CIO. An outspoken advocate for social and economic justice, Trumka is the nation’s clearest voice on the critical need to ensure that all workers have a good job and the power to determine their wages and working conditions. He heads the labor movement’s efforts to create an economy based on broadly shared prosperity and to hold elected officials and employers accountable to working families.

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Study: Popularity of Joining Unions Surges

June 22nd, 2018 | AFL-CIO Now

After holding steady for decades, the percentage of American workers in all jobs who would say yes to join a union jumped sharply this past year, by 50%, says a new, independent study from the Massachusetts Institute of Technology. The evidence is clear: The popularity of the labor movement is surging as more people want to join unions than ever before. Every worker must have the freedom to negotiate in a union over pay, benefits and working conditions.

The national narrative that the economy is doing OK, while working people struggle and billionaires bask in their latest round of massive tax cuts, is all wrong.

The truth is more working people want collective power. From 1977 to 1995, the percentage of all workers who would say yes to a union drive stayed flat, at about 32% of nonunion workers. Today, that number is 48%, a remarkable 50% increase.

This independent study from MIT confirms a broad trend we’ve seen in recent months as teachers have marched and rallied en masse for better school funding and higher pay, as tens of thousands of workers have voted to join unions and as the concept of unionism has spread in countless other ways in America.

The rich and powerful still hold many of the levers of power in America, but working people are claiming our seat at the table. We demand that every worker have the freedom to form or join a union.

This blog was originally published at AFLCIO.org on June 22, 2018. Reprinted with permission.

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Today’s Bad Idea: Merge Labor and Education Departments

June 21st, 2018 | Jordan Barab

The Trump administration today proposed to merge the Department of Labor into the Department of Education.

While some have suggested that the new department be christened the “Department of Child Labor,” the Trump administration has come up with the “Department of Education and the Workforce.”

Some may be experiencing a sense of déjà vu at this name change.  In 1995, the newly elected Republican majority in the House of Representatives changed the name of what had always been the Education and Labor Committee to the Education and Workforce Committee. Democrats replaced “Workforce” with “Labor” when they regained the majority in 2007, and the Republicans duly changed it back to “Workforce”when they regained the majority again in 2011.

In short, the word “labor” sounds too much like “labor movement” and those nasty, unpleasant, trouble-making labor unions.

We’ll see what happens when the Democrats retake the majority after the November elections.

Some have suggested that they could christen the new agency the “Department of Child Labor”

While the alleged purpose of this merger is to consolidate vocational skills training programs in one agency, the real goal is, as the Washington Post describes, to build “on Trump’s pledge to shrink the size and scope of the federal government, a long-sought goal of conservatives.”  And of course, draining the swamp:

“This effort, along with the recent executive orders on federal unions, are the biggest pieces so far of our plan to drain the swamp,” Mick Mulvaney, director of the Office of Management and Budget who has led the 14-month reorganization effort, said in a statement. “The federal government is bloated, opaque, bureaucratic, and inefficient,” he added.

Now, there are several reasons why this is a bad idea. Chris Lu, Deputy Secretary of Labor during Obama’s second term notes that only parts of DOL and Education deal with worker training. Most of the Department of Labor consists of enforcement agencies like OSHA, MSHA, Wage & Hour and OFCCP that protect workers’ health and safety, pay, benefits and anti-discrimination rights.

And while neither OSHA, nor MSHA, nor enforcement were mentioned by Mulvaney, the idea of turning OSHA and MSHA into educational agencies that just provide education,  training and fact sheets to employers is probably appealing to Republicans and the business community.

Seth Harris, who was Deputy Secretary of Labor under Obama’s first term, calls the proposal “a solution in search of a problem” and predicts that it’s not going to happen. Any major reorganizations of Cabinet departments require Congressional approval — which means 60 votes in the Senate — and that’s not going to happen any time soon.

These type of major reorganizations rarely succeed because there are too many powerful organizations that have an interest in maintaining the status quo.  Lu notes that “there are also training programs at HHS, Interior, USDA, EPA, VA, DOD, DOJ. Shifting all of those programs would cause a firestorm on Congress and with outside groups.”

The National Employment Law Project points out that the Trump administration’s track record on labor issues doesn’t exactly inspire confidence that this proposal is being done in the best interests of workers:

This latest half-baked idea is just one more betrayal of the very workers Donald Trump pledged to put front and center when he took the oath of office. Since then, his administration has—among other things–relaxed protections for workers’ retirement savings, weakened overtime pay rights, attacked workers’ unions, rolled back important health and safety protections that would protect workers from hazardous substances on the job, and pushed through a massive tax bill that further enriches corporations and the nation’s wealthiest at the expense of workers and their families.

So if swamp draining is the goal, I have a few suggestions.  Merge ethically challenged Cabinet officers like Scott Pruitt, Ryan Zinke, Wilbur Ross, Ben Carson and Betsy DeVos with the unemployment office (even though only Pruitt would probably need the assistance.)  Then get these agencies back to accomplishing their missions: protecting workers, the environment, public housing and public schools) and, as Chris Lu says, “fill vacant positions with competent people, provide agencies with sufficient funding, and stop denigrating federal employees. ”

This blog was originally published on June 21, 2018 at Confined Space. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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