Outten & Golden: Empowering Employees in the Workplace

Should Workers Be Punished for Being Employed By Subcontractors? This Legal Battle Will Decide.

January 10th, 2019 | Moshe Marvit

Over the last few decades, a growing number of American workers have effectively lost many of their labor rights because of the way their bosses structure the employment relationship. These workers are contractors who are hired by one company but work for another: the Hyatt Hotel housekeepers who actually work for Hospitality Staffing Solutions, the Microsoft tech workers who actually work for a temp agency called Lionbridge Technologies, and the Amazon warehouse workers who actually work for Integrity Staffing Solutions. These workers often perform the same work at the same place as other workers, frequently on a permanent basis.

But because their employers have entered into complicated contracts with each other, these workers have been unable to exercise their labor rights. If the workers can only bargain with the staffing company and not the lead company where they actually work, they are negotiating with the party that often has no power to change the terms of their employment. For that reason, workers have fought for a more inclusive definition under the National Labor Relations Act of what constitutes an employer—and when two employers are joint employers.

Recently, the Washington, D.C. Circuit Court of Appeals issued a major ruling that was a win for workers, and now this issue seems destined for the Supreme Court. As the legal battle heats up, workers everywhere should be paying close attention, since their livelihoods—or unions—could be affected.

Contracting expands as workers’ rights shrink

Under a traditional employment relationship, workers have one employer who has the power to hire, fire, pay, supervise and direct them. If such workers form a union, the law requires the employer to recognize the union and bargain in good faith. (Employers routinely violate the law and suppress workers’ labor rights, but workers at least have a theoretical path to collective bargaining.) Workers also have the right to picket and engage in other disruptive activities when they have a labor dispute with that employer.

However, there is a growing group of blue-collar, white-collar and service workers who find themselves working for two employers, either through contractors or temporary help firms. “In 1960 most hotel employees worked for the brand that appeared over the hotel entrance,” David Weil, former adminstrator for the Department of Labor Wage and Hour, explains in his 2014 book, The Fissured Workplace. “Today, more than 80 percent of staff are employed by hotel franchisees and supervised by separate management companies that bear no relation to the brand name of the property where they work.”

For those who work in a fissured workplace, organizing a union can be especially tough. The contracting firms have little power to raise wages or change working conditions, unless the company that controls the worksite agrees. Therefore, workers need both employers at the bargaining table.

Starting in 1984, the National Labor Relations Board (NLRB) began imposing difficult requirements to show that two employers are joint employers. By 2002, the NLRB was requiring that it be shown that the putative joint employer exercises direct and immediate control over employment matters. This meant that even when a company hired workers through a staffing agency to work at its site, chose the number of workers, gave specific work assignments and directions, and exercised supervision, it was not found to be a joint employer. Workers could, of course, form a union to negotiate with the staffing agencies, but those agencies usually have little room to maneuver alone.

Obama’s labor board

Recognizing this growing problem, in 2015 the NLRB changed the test to determine when two employers constitute a joint employer in its landmark Browning-Ferris Industries decision. No longer would workers have to show that both employers exercise direct control over them. Instead the NLRB recognized how power actually functions in the workplace and ruled that it would only require a showing that an employer had indirect or reserved control over the workers.

In its ruling, the NLRB recognized that for 30 years its approach to continuously adding requirements was moving in exactly the opposite direction from what was required: “As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded.” And indeed, according to data from the Bureau of Labor Statistics’ most recent Contingent Worker Survey, there are approximately 2.3 million workers who work for contractors or temporary help agencies, and this figure captures only a portion of those that one could reasonably find have joint employers.

The NLRB’s new Browning-Ferris test looked at whether two employers actually share or codetermine employment matters by also considering reserved or indirect control. Therefore, an employer could no longer avoid its liabilities and obligations by structuring its power in an indirect fashion. James Hoffa, the president of the Teamsters, the union that represented Browning-Ferris workers, said at the time, “This decision will make a tremendous difference for workers’ rights on the job. Employers will no longer be able to shift responsibility for their workers and hide behind loopholes to prevent workers from organizing or engaging in collective bargaining.”

Similarly, employer-side attorneys recognized the scope of the decision. In their dissent in Browning-Ferris, NLRB Members Philip Miscimarra and Harry Johnson wrote that the decision was “the most sweeping of recent major decisions. Attorney Marshal B. Babson who represented the U.S. Chamber of Commerce in its opposition to this case, said at the time, “The decision today could be one of the more significant by the NLRB in the last 35 years. Depending on how the board applies its new ‘indirect test,’ it will likely ensnare an ever-widening circle of employers and bargaining relationships.”

The right strikes back

Reaction among corporate groups and Republicans was immediate, severe and comprehensive. Within two weeks, both House and Senate Republicans had introduced the Protecting Local Business Opportunity Act, which would amend the National Labor Relations Act to define joint employers as those who “directly, actually and immediately” exercise control. In 2017, the House passed its version of the bill in a vote that fell largely along party lines.

Once the NLRB came under Republican control and was presented with a case that touched upon the joint employer question, the NLRB, in the Hy-Brand case, overruled Browning-Ferris. This decision was so potentially damaging to workers that former NLRB Member and current executive director of the Labor and Worklife Program at Harvard Law School, Sharon Block, wrote that the decision constituted part of a “December Massacre.” 

But then, on February 9, 2018, the NLRB Inspector General issued a memorandum that determined that there was a “serious and flagrant problem and/or deficiency” in the NLRB’s deliberations surrounding the Hy-Brand case. Specifically, the memorandum found that Hy-Brand was effectively a “do-over for the Browning-Ferris parties,” and since NLRB Member William Emanuel’s former law firm represented Browning-Ferris in that case, he should have recused himself. Following this memorandum and Emanuel’s recusal, the NLRB unanimously vacated its Hy-Brand decision that overruled Browning-Ferris—and announced that Browning-Ferris was still good law.

The fight heats up

The Republican-controlled NLRB, intent on overturning the Browning-Ferris decision, decided to pass a rule redefining joint employers under its rarely used administrative rule-making authority. But since administrative rules require the agency to go through a series of steps and collect public comments, this rule will likely take years to become final. 

On December 28, 2018, the Washington, D.C. Circuit Court of Appeals, which, according to The New York Times, is “widely views as second in importance only to the Supreme Court,” released its long-awaited decision on the Browning-Ferris appeal. The Court issued an important and unqualified win for workers in affirming the NLRB’s 2015 Browning-Ferris decision, agreeing with the NLRB that its new Browning-Ferris test was firmly grounded in the common law. Using the unfortunate legal language of “master-servant,” the Court explained that “retained but unexercised control has long been a relevant factor in assessing the common-law master-servant relationship.”

The court fully affirmed the NLRB’s new Browning-Ferris joint employer test, but it sent the case back to the NLRB, because the NLRB did not fully apply its new test to all the facts of the particular case. This means that the NLRB must use its Browning-Ferris test going forward, which is good news for labor rights. 

The case is now headed to the NLRB, but that is unlikely to be the end of the road for this major issue. It is quite possible that this matter will eventually end up before the U.S. Supreme Court, and this should be cause for some concern among workers. The Supreme Court currently has an ultra-conservative majority, which has shown no hesitation in rewriting decades of law in support of employers in labor cases. As recently as 2014, the conservative majority of the Supreme Court engaged in a bizarre misreading of the definition of joint employer in order to deny labor rights to home healthcare workers. With the addition of Brett Kavanaugh, the Court has become more conservative since that time. Labor may have won this latest battle, but the fight is far from over.

This article was originally published at ThinkProgress on January 10, 2019. 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.

Permalink


"So Bad I Had to Quit": Understanding Constructive Discharge

January 9th, 2019 | The Attorneys of Passman and Kaplan

When is a resignation not considered a voluntary act?  When it is unlawfully coerced or the only escape from an intolerably hostile work environment?

A finding of “constructive discharge” is essentially the same as wrongful termination. The person technically quit but for all practical purposes they were pushed out. Federal employees alleging constructive discharge have a very short window to bring such a complaint.

What is constructive discharge?

Constructive discharge means that an employee, rather than being terminated, was forced to resign because of deception, coercion and/or unbearable treatment by the employer. In other words:

  • I quit because they lied to me about what would happen if I stayed.
  • I quit because they threatened to ruin me.
  • They made my job a living hell. I had no choice but to quit.

When an employee voluntarily leaves a job, they are typically not entitled to unemployment benefits. They are no longer entitled to due process through their employer. And they forfeit the right to sue for wrongful discharge. So it is in the employer’s interests to “encourage” employees to quit and characterize the exit as voluntary.

Involuntary resignation is not always constructive discharge

Quitting because of subjective feelings of “unfair” treatment is not grounds for a constructive termination lawsuit. Nor is quitting rather than face disciplinary proceedings or “I quit before they could fire me.”

In general, constructive discharge must meet one of these scenarios:

  • Hostile environment — The employee was subjected to retaliation, harassment or discriminatory conduct that created a hostile work environment so intolerable that a reasonable person would not be able to stay.
  • Coercion — The employer made misrepresentations or threats of adverse employment actions that the employee relied upon as a forced resignation.

You don’t have to prove that management conspired to make you quit, only that their actions or deceptions led you to believe you had no alternative.

Government workers must claim constructive discharge within 45 days

A landmark U.S. Supreme Court decision in 2016 (Green v. Brennan) clarified that the clock starts from the date of your resignation, not from the date of the manipulative or abusive conduct. For federal employees, that means you have just 45 days from your separation (the day you gave your resignation) to initiate a constructive discharge claim through the EEOC or the MSPB.

Where the complaint is filed depends on the underlying nature of the mistreatment, such as Title VII discrimination or whistleblower retaliation.

Don’t be too quick to quit your job

It is difficult to “undo” a resignation. If you storm out, dramatically shouting “I quit!” that is as legally binding as resigning in a formal letter. In general, it is harder to land new a job if you have already left gainful employment – you will have to explain the employment gap or explain why you left. Don’t do anything rash without getting legal advice.

In a perfect world, you should remain on the job and exhaust all of your due process rights, including filing a formal complaint of harassment, discrimination or retaliation. Obviously, if it gets so bad that your physical and mental health are jeopardized, you may conclude you can longer go back to work. Hopefully by then you have reported and documented the mistreatment, reprisal or inadequate response. Ideally, you will have another job lined up before leaving.

This blog was originally published by The Attorneys of Passman & Kaplan on January 8, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Permalink


Federal workers protest against government shutdown across the country

January 8th, 2019 | Elham Khatami

As the partial government shutdown stretches into its third week — making it the second longest shutdown in U.S. history — federal workers in Philadelphia took to the streets Tuesday to protest the White House and congressional inaction that has left them without work and pay for 18 days.

About 150 workers from various government agencies, including the Transportation Security Administration and the Department of Housing and Urban Development, joined the rally organized by the American Federation of Government Employees (AFGE), with the support of the National Treasury Employees Union (NTEU). Organizers called for an end to the shutdown that began late last month over President Donald Trump’s demand for $5 billion in funding to build a wall along the U.S.-Mexico border.

Nearly 800,000 federal workers across the country have been affected by the shutdown.

“It is unconscionable that many employees are having to work – and in some cases overtime – with no pay whatsoever,” NTEU National President Tony Reardon said in a press release Monday. Reardon’s organization filed a lawsuit against the Trump administration Monday, alleging that the shutdown violates the Fair Labor Standards Act by requiring federal employees to work without pay.

“Many of us used our credit cards to pay for Christmas and now we’re being hit with high interest rates on that. So, it’s really overwhelming,” Jan Nation, a protester who works for the EPA, told NBC Philadelphia Tuesday. “We don’t want a wall, we want to do our jobs.”

Philadelphia rally organizers also plan to travel to Washington, D.C. on Thursday for a second protest outside the AFL-CIO headquarters. Several hundred workers from multiple unions are expected to attend Thursday’s protest, which will be followed by a march to the White House.

Federal workers in St. Louis and Boston have also organized or plan to hold rallies in opposition to the government shutdown, despite Trump’s comments to reporters last week that federal workers “agree 100 percent with what I’m doing.”

In St. Louis, which is home to a U.S. Department of Agriculture office that employs 1,200 federal workers, a small contingent of USDA employees spent much of last Friday and Monday rallying outside their offices.

“We’re just tired of being held hostage,” Don Pusczek, a USDA accountant, told the St. Louis Post-Dispatch Friday. “The longer it lasts, the more the bills pile up and don’t get paid.”

Federal workers in Boston also plan to hold an AFGE-organized rally Friday outside the offices of the Environmental Protection Agency in the city’s Post Office Square.

“Federal employees want to go back to work. They believe in their mission and want to provide quality services to the American people,” AFGE President J. David Cox Sr. said in a statement Monday. “These are real people, with real lives and real responsibilities. It’s time to end this shutdown, open the government, and get federal employees back on the job — with pay.”

This article was originally published at ThinkProgress on January 8, 2019. Reprinted with permission. 

About the Author: Elham Khatami is an associate editor at ThinkProgress. Previously, she worked as a grassroots organizer within the Iranian-American community. She also served as research manager, editor, and reporter during her five-year career at CQ Roll Call. Elham earned her Master of Arts in Global Communication at George Washington University’s Elliott School of International Affairs and her bachelor’s degree in writing and political science at the University of Pittsburgh.

Permalink


Trump wants to dismantle decades of discrimination protections

January 7th, 2019 | Zack Ford

The Trump administration is looking to either eliminate or severely restrict regulations designed to protect people from discrimination in a number of categories, the Washington Post reported Thursday.

The Department of Justice is asking federal agencies to assess ways to scale back regulations that allow for “disparate impact” legal challenges to discrimination.

Disparate impact refers to discrimination that occurs against a group even when there is no clear evidence of an intent to discriminate.

For example, an employer might implement a broad restriction on hiring people who have criminal records. Such a policy might not mention race at all, but because of racial disparities in the criminal justice system, it could end up leading to far more discrimination against people of color.

Disparate impact litigation would be a vehicle for challenging that policy as racial discriminatory, even if there’s no evidence that the employer put the policy in place in an attempt to give white candidates an advantage.

The approach is not new; in fact, it’s been a practice dating back a half-century to when civil rights laws were first put on the books. And litigation based on showing a disparate impact has been used to combat discrimination in just about every way, including employment, housing, education, and credit.

The administration has already demonstrated a willingness to gut this important tool for combatting discrimination.

Last month, the Federal Commission on School Safety recommended rolling back disparate impact policies in education. These policies sought to minimize the amount of punitive discipline for minor infractions, because such discipline was disproportionately applied to students of color and students with disabilities — fueling the so-called “school-to-prison pipeline.” The commission claimed without a clear explanation that allowing such discipline would somehow protect students from gun violence.

There are many inconsistencies in terms of when courts will consider disparate impact claims. For example, the Supreme Court ruled in 2015 that disparate impact claims are viable in terms of housing complaints. But there are other forms of discrimination where the Court has not guaranteed that the claims can be heard.

Tom Silverstein, associate counsel at the Lawyers’ Committee for Civil Rights, explained to ThinkProgress that where the Supreme Court has not resolved the issue, the administration will try to prohibit bringing disparate impact claims at all. Where the Supreme Court has said such claims are viable, the administration could place many limitations on them that make it far harder for them to succeed.

In that 2015 case, the Court may have upheld disparate impact claims in housing, “but there was no holding on how you prove a disparate impact claim or what the standard of proof is,” Silverstein explained. New regulations could heighten the standard for showing a causal relationship between a company’s policy and its disparate impact, or they could burden plaintiffs with having to prove that a less discriminatory policy would still serve the company’s interests. These would shift the advantage more to the company discriminating and make it harder to bring successful claims against them.

The Department of Housing and Urban Development already has indicated that it is seeking to undo its disparate impact rule, which would make it easier for insurance companies to implement policies that discriminate against minorities.

In the case of lending, the Supreme Court has not weighed in on whether disparate impact claims are viable under the Equal Credit Opportunity Act. Silverstein offered a hypothetical situation in which a company’s car purchase loans resulted in people of color disproportionately paying higher interest rates on their vehicles. “If it’s not an instance of intentional discrimination — or it is but you can’t prove that without going through discovery — it makes it harder to challenge that kind of discrimination.”

Sasha Samberg-Champion, a civil rights lawyer at Relman, Dane & Colfax, told ThinkProgress that the proposed changes are “harmful” because they will make it far harder to prove discrimination is taking place. An insurance company, for example, might be relying on a certain automated algorithm that ends up making it harder for people of color to obtain coverage, but it might not be possible to trace that algorithm back to specific individuals or any intent to discriminate.

“There may be some bad intent going on as well,” he said, “but it’s virtually unknowable when you begin investigating and begin litigation. You know there’s a bad practice that has a severe disparate impact on minority populations, and you know it’s irrational and has no justification. But you don’t know why unless they’re stupid enough to announce that they’re bigots.”

The administration’s restrictions could lead to a situation where plaintiffs basically have to find some clear evidence that a company was trying to discriminate, not just show that they happened to be discriminating. “If you make it a requirement that you prove intent, you’re making it impossible to bring litigation for practical purposes, even if in the real world there is bad intent,” he said.

There has long been a partisan divide on disparate impact litigation, with Republican presidential administrations dating back to Ronald Reagan opting simply not to pursue such cases. But completely dismantling the regulations that allow for them is a substantial change.

“This is a major attack on civil rights enforcement,” said Joe Rich, who recently retired from the Lawyers’ Committee for Civil Rights. “In the past, they would not use disparate impact, but they would not try to change the regulation. They would not try to destroy it,” he told ThinkProgress. “If you get rid of the regulation, there will be nothing to enforce.”

This article was originally published at ThinkProgress on January 3, 2019. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. 

Permalink


Economy Gains 312,000 Jobs in December; Unemployment Rises to 3.9%

January 4th, 2019 | Kenneth Quinnell

The U.S. economy gained 312,000 jobs in December, and the unemployment rate rose to 3.9%, according to figures released this morning by the U.S. Bureau of Labor Statistics. This report shows an increase in unemployed workers and while wage gains are stronger, they are not consistent with a tight labor market. This ongoing financial and economic volatility means that the Federal Reserve needs to hold off on more rate increases.

Last month’s biggest job gains were in health care (50,000), professional and business services (43,000), food services and drinking places (41,000), construction (38,000), manufacturing (32,000) and retail trade (24,000). Employment in other major industries—including mining, wholesale trade, transportation and warehousing, information, financial activities and government—showed little change over the month.

Among the major worker groups, the unemployment rates rose for blacks (6.6%), adult men (3.6%) and Asians (3.3%). The jobless rate for teenagers (12.5%), Hispanics (4.4%), adult women (3.5%) and whites (3.4%) and showed little or no change in December.

The number of long-term unemployed (those jobless for 27 weeks or more) declined slightly in December and accounted for 20.5% of the unemployed.

This blog was originally published by the AFL-CIO on January 4, 2019. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.

Permalink


2018: The Workplace Safety and Health Year in Review

January 3rd, 2019 | Jordan Barab

As we sit here mired in yet another pointless government shutdown stranding tens of thousand of workers without paychecks, we pause to reflect over the past year in workplace safety and health. The madness in Washington DC continues, and while we can’t make any guarantees for the White House or the Senate, things are at least looking up in the House of Representatives.

Meanwhile, the indefatigable Confined Space team (of one) has posted almost 250 times over the past year, talking about the carnage in American workplaces, but also the victories of unions, activists and dedicated government officials. I can’t honestly say I did it ALL by myself. I was aided by the many of you who sent me articles and story ideas that I never would have noted, and those of you who give me the inspiration to go on when I’d really rather be binge-watching some some addictive Netflix series, reading a book or riding my bike. (Actually, I manage to do enough of that as well.)

The real story, of course, continues to be the more than five thousand workers who go to work and never come home, the tens of thousands who die each year from occupational diseases like black lung, silica-related disease and work-related cancers, and the millions of workers who are seriously injured every year in preventable incidents.  The struggle continues as we hope that the lessons of 2018 will help make 2019 a better one for this nation’s working people. 

  1. A New and Improved Congress (or at least the House): The long awaited Blue Wave hit the House of Representatives full force last November, bringing with it real oversight hearings, better budgets and legislation: Donald Trump — along with the Department of Labor and OSHA — don’t know what’s about to hit them come the new Democratically controlled congress and its ability to exercise its oversight function to ensure that Labor Department agencies actually work to fulfill the mandate that Congress has given them.  In a symbolic move, the House has already changed the committee name back to the Committee on Education and Labor, instead of the rather anodyne in impotent “workforce.” But real work is on deck. Workplace safety and health hearings are already being planned, as well as legislation to move improve worker protections. While it’s unlikely that any pro-worker legislation will pass the Senate or be signed by the President, we can expect new ideas and new energy: Rumor has it that a record number of new Democratic House members want to be on the Education and Labor Committee. Something to look forward to.
  2. A Headless Agency: By the end of January, OSHA will move into its third year without an Assistant Secretary — a new record in the 48-year history of the job-protection agency. The confirmation of Trump nominee Scott Mugno remains mired down in a fight between HELP Committee Ranking Member Patty Murray (D-WA) and Republicans who don’t want to confirm Democratic nominees for the National Labor Relations Board (NLRB) or the Equal Employment Opportunity Commission (EEOC.) The lack of an Assistant Secretary hits particularly hard as other OSHA veterans like Region 8 Administrator Greg Baxter and long-time Director of Enforcement Tom Galassi also retire.  Meanwhile, Deputy Assistant Secretary Loren Sweatt continues to labor on, almost alone in the once hyper-active Assistant Secretary’s office — no doubt looking forward to testifying at OSHA oversight hearings this year.
  3. Inspectors down, enforcement units down, penalties down: The number of OSHA inspectors has hit an all-time low according to data compiled by Bloomberg Environment Reporter Bruce Rolfsen in November. “The agency ended fiscal 2018 with 753 inspectors, compared to 860 at end of fiscal 2014, the personnel data, obtained through a Freedom of Information Act request, show.” And that means fewer serious injuries being investigated.  And last June, The National Employment Law Project (NELP) issued a report showing that worksite enforcement activity by the Occupational Safety and Health Administration is declining under the Trump administration. Secretary of Labor Alex Acosta likes to boast that OSHA conducted slightly more inspections in the last two fiscal years than they did in the last year of the Obama administration, but NELP points out that in FY 2017 OSHA changed the way it counts inspections. Instead of just counting the number of inspections conducted, OSHA moved to counting Enforcement Units. And those numbers under Acosta don’t look quite as good as they did under Obama. Things also don’t look too good for workers in at least one state plan state, Kentucky, which suggests that OSHA’s oversight over state plans (which run almost half the country’s OSHA programs) may be weakening as well.
  4. Return of Black Lung: After almost being eradicated in the late 1990s, black lung is back, with a vengeance. Epidemiologists at the National Institute for Occupational Safety and Health say they’ve identified the largest cluster of advanced black lung disease ever reported, according to an NPR story by Howard Berkes last January. The cause is not just coal dust, but also silica exposure, caused by cutting through more quartz rock as the coal seams get smaller.  Berkes recently filled out the story alleging that the failure of regulatory agencies to understand what was happening and respond are largely to blame for the new epidemic. Meanwhile, making things worse, the state of Kentucky is killing the messenger by no longer allowing radiologists to diagnose black lung. Only pulmonologists will be allowed to review black lung cases, but there are only six pulmonologists in Kentucky that have the federal certification to read black lung X-rays and four of them routinely are hired by coal companies or their insurers.
  5. Brett Kavanaugh: Republicans confirmed a Supreme Court justice who, in addition to his questionable behavior around women, displayed shockingly little knowledge of the Occupational Safety and Health Act, and even less understanding of workers’ struggle to survive in the workplace. After a Orca (aka “Killer Whale”) dismembered and drowned a SeaWorld trainer, Kavanaugh dissented in a court case challenging the resulting OSHA citation. Kavanaugh wrote that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congress — and only Congress — could give OSHA that authority. While none of this was true, Kavanaugh nevertheless doubled down on these assertions during his Senate confirmation hearing. Kavanaugh’s opinion related to other workers’ rights issues were not much better.  Nevertheless, today he sits on the Supreme Court.
  6. Regulatory Rollback: OSHA is struggling valiantly to roll back regulations that protect workers and slow down those under way, to fulfill the visions of Donald Trump, Republicans in Congress, and Corporate America. Happily, the curse of OSHA — how impossibly long it takes to issue any single health and safety standard — has become a blessing for workers because it takes almost as long to repeal a standard as it takes to issue a new one.  Nevertheless, OSHA is in the process of attempting to weaken beryllium protections for construction and maritime workers, and striving to roll back a major section of the “electronic recordkeeping” regulation.The good news is that the courts not only upheld OSHA’s silica standard, but also told the agency to add more worker protections or at least explain its decision not to.

    While the road to roll back regulations is long and difficult, the agency’s chance of stopping any significant new workers protections from being finalized is much better. Standards to protect workers from infectious diseases and chemical plant hazards languish on the agency’s “long-term agenda,” while other standards are unlikely to see the light of day anytime in the near future because of Trump’s “one-in, two-out” regulatory budget. 

    Other agencies, such as the Department of Agriculture, also contribute to increase hazards for workers by allowing poultry processing facilities to increase line speeds. And EPA is close to repealing Obama era chemical plant safety protections, and the Department of Labor’s Wage and Hour division is in the process of allowing 16-year-olds to operate potentially hazardous patient lifts.  Bad news not only to workers, but to residents living near chemical plants — and granny in the nursing home.

  7. Methylene Chloride:  The Obama administration had proposed to ban the use of Methylene Chloride due to the deaths of numerous workers and citizens who weren’t aware of the highly hazardous properties of the solvent in enclosed spaces.

    Obama’s EPA, under former EPA Administrator Scott Pruitt, agreed with chemical manufacturers, and decided that a ban wasn’t a very good job. Obviously, if consumers and workers couldn’t read between the lines of the ineffective warnings on the containers, they deserved to die.  After some hard questioning at Congressional hearing, and meeting with family members of the victims of methylene chloride, Pruitt reversed himself and sent the ban to the White House for review. Although the ban has not yet emerged from the dark, dank dungeons of the White House, family members and other organizations like the Natural Resources Defense Council, the Environmental Defense Fund Green Chemistry and Commerce Councils, and Safer Chemicals, Healthy Families, aren’t waiting around. They have succeeded in pressuring retailers like Lowes, Home Depot, WalMart, Sherwin Williams, Home Hardware and True Value to stop selling the product. Organizing and citizen action works, even in Trump times.
  8. The Fate of the Labor Movement: A strong labor movement is good for workers and good for workplace safety. This year has seen ups and downs for the fate of American labor movement.  On the down side, in June, the Supreme Court handed down its Janus decision fulfilling the dreams of corporate America in its quest to weaken not just public employee unions, but the labor movement in general. But public employee unions are not going gentle into that good night. They are fighting back, convincing their members that union membership is the best bargain they’ll find.  And, as labor reporter Steve Greenhouse describes, 2018 saw “a startling surge of strikes in both the private and public sectors” — tens of thousands of teachers in West Virginia, Arizona, Colorado, Kentucky, and North Carolina went on strike and hotel workers struck in Chicago, Boston, Detroit, Honolulu, and San Francisco. And “15,000 patient-care workers, including radiology technicians, respiratory therapists, and pharmacy workers, held a three-day strike against the University of California’s medical centers in Los Angeles, San Francisco, San Diego, Irvine, and Davis. An additional 24,000 union members, including truck drivers, gardeners, and cooks, struck in sympathy.” Even 20,000 Google workers walked out to protest how the company handled sexual harassment accusations against top managers.

    The other bad union news was the elimination of the health and safety offices in the Service Employees International Union and the American Federation of Teachers, continuing the general reduction of health and safety staff still working in American labor unions — not a good thing for the health and safety of American workers, organized or unorganized. 
  9. Journalism: American workers continue to suffer and die in obscurity and the agencies tasked to protect them remain seriously underfunded and legally handicapped. The only hope for many of these workers lies with the excellent investigative pieces published by this country’s dwindling corps of investigative journalists, especially those who focus on labor and health & safety issues. Longtime labor Charleston Gazette-Mail labor reporter Ken Ward received a McArthur Genius Award for his reporting about labor and environmental issues in West Virginia. Ward is teaming up with ProPublica for more hard-hitting pieces in the future.  Retiring National Public Radio reporter Howard Berkes has produced two powerful investigative pieces on the return of black lung disease among the nation’s coal miners. (Here and here.) He will be missed. Veteran investigative reporter Jim Morris at the Center for Public Integrity continues his excellent work, most recently with a story on the deaths of oil field workers and problems at Kentucky OSHAJamie Satterfield at the Knoxville News Sentinel published a hard-hitting piece on the health problems suffered by workers who cleaned up the massive coal-ash spill at the Tennessee Valley Authority Kingston Fossil Fuel Power Plant. 

    You can listen to an interview with Satterfield hereAntonia Juhasz of Pacific Standard about the workers working and dying on the Dakota Access Pipeline and how difficult it is for OSHA to enforce safe working conditions.   Will Evans of Reveal and the Center for Investigative Reporting has focused relentlessly on electric car maker Tesla and documented how the company put style and speed over safety, was hiding injuries and ignoring the concerns of its own safety professionals.  Eli Wolfe of Fair Warning wrote a devastating piece about worker deaths on small farms and how Congress prohibits OSHA from investigating incidents on farms that comprise about 93 percent of U.S. farms with outside employees, employing more than 1.2 million workers. ProPublica’s Kara Feldman penned an investigative piece into the death of Mouctar Diallo, age 21, a Guinean immigrant crushed to death in 2017 by a 40 ton garbage truck, and the plight of New York’s unorganized and mostly immigrant garbage collectors. Chemical and Engineering News reporter Jeff Johnson keeps us up-to-date on goings-on at the Chemical Safety Board here and here. And Kartikay Mehrotra, Peter Waldman and Jonathan Levin of Bloomberg News have written a long piece on how the growing threat of deportation is causing immigrant workers endure abuses in jobs Americans don’t want. 

    And I just want to give a shout-out to some of my favorite labor/OSH/environment reporters:  Labor reporter Steve Greenhouse who continues his eloquent defense of workers even (or especially) after his retirement from the New York Times.  And then there’s Juliette Eilperin and the team at the Washington Post, David Kay Johnston who follows worker issues at DC ReportSuzy Khimm at NBC, Mike Elk of Payday Report, Wooty Sixel at the Houston Chronicle, and . And honorable mention of those who labor for labor at various news bureaus: Rebecca Rainey who has graduated from Inside OSHA to heading up the team at Politico’s Morning Shift. Rebecca’s replacement at Inside OSHA, Ariana Figueroa, and, of course the Bloomberg labor/OSHA team: Josh Eidelson, Sam Pearson, Bruce Rolfson, Peter Waldman.And while they’re not exactly journalists, this is probably a good place to recognize those academics and public interest people (some of whom are former colleagues) who are continuing the battle for worker justice by providing the research and perspective that go into many of the above pieces. My old OSHA colleagues David Michaels, now at George Washington University and Debbie Berkowitz, now working at the National Employment Law Project, both of whom write prolifically in defense of workers’ right to a safe workplace. And, of course, Sharon Block, Executive Director, Labor and Worklife Program at Harvard Law School who writes frequently in OnLabor (along with many colleagues), Shanna Devine at Public CitizenKatie Tracy of the Center for Progressive Reform and former Labor Deputy Secretary, rising pundit and my favorite Twitter contributor Chris Lu.

    And finally, while it’s not exactly great journalism, my appearance on MSNBC last January marked the longest cable television coverage of OSHA issues all year.

  10. The Bottomless Swamp: This year happily saw the resignation of two of the Trump administration’s leading swamp monsters: Scott Pruitt and Ryan Zinke — as well as the resignation and firing of a record number of other high administration officials either because they could no longer look themselves in the mirror in the morning, or because Trump tired of whatever residual residue of integrity they had left. Are things better now. Not so’s you’d notice. 

    As New York Times reporter Eric Lipton tweeted, “As of Thursday, DOD will be run by a former senior Boeing executive. EPA is run by a former coal lobbyist. HHS is run by a former pharmaceutical lobbyist. And Interior will be run by a former oil-industry lobbyist. Welcome to 2019.”  Meanwhile, even the Mr. Clean of the Trump Administration, Labor Secretary Alex Acosta had a bit of a bumpy road in 2018 as the Miami Herald detailed how he gave Palm Beach multimillionaire sex abuser Jeffrey Epstein a legal break when Acosta was Miami’s top federal prosecutor. What will this mean for the comparatively moderate Acosta? Who knows? But even if he survives as Labor Secretary, his chance of ever seeing a coveted federal judicial appointment seems all but vanished.  Oh well, we could have worse Labor Secretaries.

This article was originally published at Confined Space on January 3, 2019. 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).

Permalink


When Your Boss Locks You Out for Nearly 6 Months and Cuts Off Your Healthcare

January 2nd, 2019 | Michael Sainato

Shortly before National Grid locked out 1,250 gas workers across Massachusetts in June 2018, David Monahan, a National Grid residential service technician for more than 9 years, was diagnosed with a cancerous bladder tumor.

“They cut off my health insurance at the beginning and my unemployment doesn’t even begin to cover the cost to continue our health insurance,” Monahan said of the lockout, which the company imposed as a tactic during new-contract negotiations with the United Steelworkers (USW). Monahan, who is also caring for a toddler and a pregnant wife, told In These Times his union has helped pay his bills. But it has still been a struggle to deal with health problems and make ends meet on unemployment benefits. For Monahan, COBRA insurance, a health insurance plan offered to workers who lose their job-based insurance, costs more than $2400 a month.

“It didn’t need to happen,” added Monahan. “We have all offered to continue working under the same guidelines and parameters we all did before as we continued negotiating because that’s what happened in previous contract negotiations. It was National Grid’s choice and all of us workers are the ones suffering.”

National Grid continued the lockout for nearly six months, undermining workers’ abilities to live a normal life and properly take care of their families. Workers were left in limbo, with no sense of when they would be able to return to their jobs, with full pay and benefits restored. On January 2, the USW and National Grid reached a tentative agreement to end the lockout that union members will vote on by January 7. A ratified agreement would end the lockout.

John Doherty said he has worked for National Grid for 32 years. “Financially, it’s a huge setback for all of us,” he told In These TImes. “Psychologically, there’s a lot of anger out on the picket lines and even a feeling of depression. Myself and many of my coworkers have been working here since the company was Boston Gas. For National Grid to lock us out is the ultimate betrayal.”

Lawmakers in Massachusetts introduced a bill in July 2018 to force National Grid to continue offering health insurance to employees during the lockout, but the bill has yet to be voted on in the State Senate after it passed in the House in early December 2018. The State House also passed a bill to continue unemployment benefits to locked out National Grid workers, which will be paid by their employer and includes language to prevent the costs of the unemployment program to be passed down to consumers. The State Senate passed that bill on Christmas Eve and it was signed into law on New Year’s Eve.

Though the unemployment bill provides workers with some temporary relief, they have been left to struggle without the health insurance and income they received before the lockout began.

“The National Grid lockout has placed every working man and woman at risk of having their next bargaining session end in a lockout, which poses a threat to our workers,” said the author of the National Grid healthcare bill, State Rep. James O’Day (D), in an email to In These Times. “This lockout sets a precedent to future bargaining agreements and gives companies leverage by using health insurance and paychecks as a bargaining tool in these negotiations.”

The lockout lasted for nearly six months as the United Kingdom-based multi-billion dollar utility company, National Grid, continued contract negotiations with Locals 12003 and 12012 of USW. National Grid opted to hire temporary replacement workers rather than accept an offer from the unions to extend the current contract until a new one is agreed upon.

Lockouts are work stoppages increasingly used by corporations as leverage against labor unions over contract negotiations. Lockouts represented under 4 percent of all work stoppages in 1990 but gradually grew to more than 10 percent by 2015, while labor strikes have experienced declines. The Boston Globe reported that when a work stoppage occurs, it is now twice as likely to be a lockout than a strike compared to just a decade ago.

The unions say National Grid was pushing a new labor contract that removes several benefits for new hires, including revoking medical for retirees and switching to non-traditional, less supportive pension plans. According to the union, the company was also trying to cut employee life insurance, sick time, disability pension and bidding rights for different positions within National Grid.

“They basically want a two-tiered benefit system, one for current employees and one for new employees,” said USW Local 12012 President John Buonopane in an interview with In These Times. “They told us that night on June 25, the union committee, that if we couldn’t unanimously recommend their proposed contract they were locking us out that night. They told us they weren’t going to give us an opportunity for the membership to vote on it.”

Buonopane said most employees showed up to work the next morning with the gates locked, and National Grid implemented a contingency plan to replace union workers. The unions fielded over 200 complaints with the Massachusetts Department of Public Utilities over unsafe activity by replacement workers, according to Buonopane.

As an example, Buonopane cited an incident in Woburn, Massachusetts this past October when a replacement worker accidentally over-pressurized a neighborhood with about 300 homes. State officials issued a moratorium on all non-emergency, non-compliance work in response to the incident, as a similar pipe over-pressurization error caused gas explosions in Merrimack Valley, Massachusetts in September 2018, though under a different utility company. In that incident, one person was killed, and 21 were injured in the explosions that damaged 131 buildings.

“They are using people who don’t have the experience in the field like our people do. That’s a problem, and the potential for another disaster is real,” added Buonopane. He noted in cold weather, safety risks increase due to frost caps and the increased use in home appliances that raise the potential for more leaks and carbon monoxide issues.

State officials and politicians in Massachusetts  increasingly sided with the union to end the National Grid lockout.

“We call on National Grid to end their lockout immediately and allow the workers to get back to work now.  We believe the two parties can continue negotiations – and they must continue negotiations – while allowing these families to put food on their table, take care of their children’s pressing health needs, and enjoy their holidays together,” said Massachusetts State Senate President Karen E. Spilka & Senate Minority Leader Bruce E. Tarr in a joint statement on December 10. “This process has gone on long enough, and the Senate is prepared to take action if needed.  For the New Year, we hope that these workers get their one wish: to go back to work.”

The unions  offered to meet with National Grid on a daily basis starting December 17, until an agreement was reached.

In an email, a National Grid spokesperson told In These Times, “National Grid always endeavors in bargaining fair contracts that balance the needs of our employees with the interests of our customers. But, ultimately, it is our ratepayers who pay the cost of our employees’ wages and benefits, and the Company must be mindful of the direct impact that employee compensation has on the rates charged to our customers.”

For David Monahan, the lockout has had a profound impact on his life.

“We all thought we had careers at National Grid and they pulled the rug out from under us,”Monahan added. “It’s totally taken my life and flipped it upside down. It hasn’t been a good experience. Not knowing when it’s going to end or when life will get back to normal has been stressful.”

This article was originally published at In These Times on January 3, 2019. Reprinted with permission. 

About the Author: Michael Sainato is a journalist based in Albany, NY. Follow him on Twitter @MSainat1

Permalink


Stop the Shutdown

January 1st, 2019 | AFL-CIO Now

The government shutdown is now in its 12th day, meaning some 800,000 federal employees are still without a paycheck because President Donald Trump refuses to sign a federal budget that doesn’t include $5 billion for a border wall. Working people—and their livelihoods—should never be used as political pawns. 

Despite the shutdown, roughly 420,000 federal employees, from law enforcement and corrections officers to Transportation Security Administration agents, are still working and putting their lives on the line without collecting a paycheck. That doesn’t include about 380,000 workers who are currently furloughed, or sent home without pay.

That’s why AFGE filed a lawsuit against the Trump administration for illegally forcing federal employees to work without pay.

“Our members put their lives on the line to keep our country safe,” said AFGE National President J. David Cox Sr. “Requiring them to work without pay is nothing short of inhumane.”

To make matters even worse, Trump actually suggested that federal employees don’t want to work and then canceled a 2.1% pay increase for this year.

Our AFGE brothers and sisters take home an average of $500 a week. Losing this pay is devastating.

The shutdown began Dec. 22 after Trump demanded more than $5 billion for a wall along the southern U.S. border.

This blog was originally published by the AFL-CIO on January 2, 2018. Reprinted with permission. 

Permalink


Government workers worry about shutdown continuing into the new year

December 31st, 2018 | Casey Quinlan

The Office of Personnel Management (OPM), which handles human resource issues for government workers, has advice for the roughly 800,000 people who won’t receive their paychecks as scheduled during the partial government shutdown: get a lawyer and barter your services if you can’t make ends meet.

On Thursday, in an attempt to assist employees facing mounting bills and rent payments, OPM officials tweeted out sample letters for workers to send to creditors, mortgage companies, and landlords. One such letter, intended for an employee’s landlord, reads, “I will keep in touch with you to keep you informed about my income status and I would like to discuss with you the possibility of trading my services to perform maintenance (e.g. painting, carpentry work) in exchange for partial rent payments.”

While the letters have been used in the past for other shutdowns — and though employees say they are sometimes effective — many workers still worry they may not be enough.

“Car payments, insurance payments, rent, storage, etc., they build up quick,” Chris, an employee at the Transportation Security Administration (TSA), whose last name has been withheld, told ThinkProgress this week.

If the current shutdown, which began December 21, lasts longer than two weeks — which it’s currently expected to do — “that’s when I would start worrying,” he added.

OPM officials suggested workers “consult with [their] personal attorney” if they have trouble navigating especially tricky situations or are concerned about pressing issues. As some have noted, however, many middle income workers don’t have ready access to a personal attorney and may find themselves in an unwanted situation as a result.

Some workers simply can’t spare the extra cash for an attorney, because it’s being used for more important purposes. Chris, for example, moved back home to his parent’s house after his father suffered a stroke and is helping his father with the mortgage.

“I do not have an attorney nor do I plan on getting one,” he said, though he noted the letters to creditors and landlords had helped him “in past shutdowns” and would likely “prove useful again if the shutdown continues.”

In Chris’ case, if the government’s lapse in funding isn’t resolved soon, he may have to take out a retirement plan loan or cancel upcoming travel. That includes an overseas trip his family has planned at the end of January for his grandmother’s funeral.

About 380,000 federal workers will be furloughed without pay and 420,000 federal workers will continue to work without pay if the shutdown, which began after Republicans and Democrats were unable to reach a consensus on funding for President Trump’s proposed border wall, continues into 2019, according to a fact sheet assembled by Senate Democratic staffers earlier this month, NBC News reported.

Many departments and agencies, such as the office of Food and Nutrition Services that oversees the Child Nutrition, Supplemental Nutrition Assistance Program (SNAP) and Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), saw staffing slashed to nearly zero, with related programs only operational “based on available resources,” CNN noted.

Now on its seventh day, the shutdown has been a nightmare for affected federal workers. It has also hit contractors, who typically are not paid retroactively as regular employees are, said Susan Moser, a partner at the Cherry Bekaert law firm, whose clients have been affected in the past, in a recent interview with HuffPost.

Those struggles are unlikely to end anytime soon. The shutdown impasse is expected to last until at least January 3 when the new Congress is seated. Lawmakers told Politico they were concerned the shutdown might persist longer than that, well into January.

Credit unions that serve federal employees are currently offering loans to workers to stave off financial hardship, and nonprofits such as Coast Guard Mutual Assistance are also providing financial support. But many employees say they’re already living paycheck to paycheck and that temporary support means nothing if a long-term solution is not reached.

After Trump told reporters on Tuesday that “many” federal workers supported the shutdown, several of them fired back on social media.

“My husband is a federal worker,” Theresa Garcia tweeted. “[W]e need our paycheck next week to pay our mortgage.”

Another federal worker tweeted at Trump, “We live paycheck to paycheck. Who will pay my mortgage January 1st? You?”

On Thursday, the president suggested that “most of the people not getting paid are Democrats,” suggesting that Democrats were hurting themselves by not agreeing to his demand for wall funding, which currently stands at a proposed $5 billion. Democrats have roundly rejected that offer.

Chris countered that assertion, saying he knows many federal workers affected by the shutdown who are Republican — including those working for Immigration and Customs Enforcement, Customs and Border Protection, and TSA, who support Trump’s policies.

“I can definitely say that most federal workers are not Democrats. But I can say that most federal workers are good people,” he said.

He added, “I am hoping there will be resolution — and not just for me, but for all 800,000 federal employees.”

This article was originally published at ThinkProgress on December 28, 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.

Permalink


No OSHA Head This Session

December 28th, 2018 | Jordan Barab

Barring a last minute Christmas miracle on Capitol Hill, the odds of having an Assistant Secretary for OSHA this year have gone from slim to pretty much none, according to Politico: “A deal to push through a slate of labor nominees appeared all but dead Thursday as lawmakers raced to avert a shutdown.”

As we’ve written before, the confirmation of Scott Mugno to head OSHA, as well as several other Labor Department appointees, remains mired down in a fight between HELP Committee Ranking Member Patty Murray (D-WA) and Republicans who don’t want to confirm Democratic nominees for the National Labor Relations Board (NLRB) or the Equal Employment Opportunity Commission (EEOC.) Utah Republican Mike Lee continues to refuse to confirm Chai Feldblum for the EEOC, calling her “an [LGBT] activist intent on stamping out all opposition to her cause.”  Lee previously stated that he fears Feldblum would “use the might of government to stamp out traditional marriage supporters.””

Republicans also oppose the re-appointment of Democratic nominee Mark Pearce to the NLRB.

Meanwhile, Daniel Gade, who has been caught in the fight and had been waiting for confirmation as EEOC Commissioner for 16 months, has withdrawn his name from consideration.

If a Christmas miracle is not forthcoming, President Trump will have to renominate everyone, and they will then have to be re-approved by the HELP Committee and confirmed by the Senate. But will things get any better in a new year, while Republicans continue to hold the Senate? Does Scott Mugno still want the job? Will Loren Sweatt continue her lonely existence atop OSHA?

Stay tuned.

This blog was originally published at Confined Space on December 21, 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).

Permalink



Your Rights Job Survival The Issues Features Resources About This Blog