During this year’s flu season, concerns about getting sick and missing work will be compounded. Not only will we have to take precautions against the common flu, but now we’ll have to add H1N1 to our list of concerns as well. Thankfully, vaccines are now available for both types of flu. However, many Americans will still be stricken with a contagious illness that will force them to miss work this flu season. Therefore, House Democrats have introduced a sort of economic vaccine which will guarantee up to five paid sick days to a worker sent home or directed to stay home by their employer because of a contagious illness.

The legislation, called the Emergency Influenza Containment Act was introduced by Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, and Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee.

Rep. George Miller

Rep. Lynn Woolsey

Rep. Woolsey said, “This bill will ensure that workers who are directed to stay home by their employers can do so without paying a financial penalty.”

The Emergency Influenza Containment Act would take effect 15 days after being signed into law, sunset after two years, and cover full-time and part-time workers in businesses with 15 or more workers.

This should be a relief to the 72% of part-time workers, 37% of non-union workers, 18% of union workers who receive zero paid sick leave.

An employer can end the sick leave if they believe the employee is well enough to return to work and the employer informs the employee of the decision. Meanwhile, the bill would allow employees to continue on unpaid leave under the Family Medical Leave Act or other existing sick leave policies.

The Centers for Disease Control estimates that a sick worker will infect one in ten co-workers. As a result, the CDC and other public health officials have advised employers to be flexible when dealing with sick employees and to develop leave policies that will not punish workers for being ill. Plus, according to the EICA, employees who follow their employer’s direction to stay home because of contagious illness cannot be fired, disciplined or made subject to retaliation for following directions.

H1N1 is still thriving in this tough economic climate. But for the rest of us, an economic vaccine may be on the way.

The House Education and Labor Committee will hold a hearing on the legislation the week of November 16.

About the Author: Brett Brownell is a new media fellow at the New Organizing Institute where he manages the Today’s Workplace blog and new media for Workplace Fairness. Brett served as deputy director of new media & videographer for the Obama campaign in Pennsylvania. He is also the founder of Worldwide Moment (an international photography project for peace) and the son of a 40-year veteran of the Association of Professional Flight Attendants union.

BREAKING: The U.S. House of Representatives passed the unemployment insurance extension bill, by a 403-12 vote. The bill is on its way to President Barack Obama who could sign it as early as tomorrow.

After weeks of Republican stalling and obstruction that cost hundreds of thousands of jobless workers their unemployment insurance (UI)—the Senate last night approved extending UI to workers who have lost or will lose their benefits by the end of the year.

House Majority Leader Steny Hoyer (D-Md.) promised to move quickly—as early as today—to ensure a House vote on the bill so President Obama can sign the legislation and get the checks moving again. Said Hoyer last night:

For too long, Senate Republicans blocked progress on extending unemployment insurance, which would provide immediate and tangible help to those who need it most, while also boosting our economy. Democrats remain focused on doing everything we can to assist Americans struggling to make ends meet and extending unemployment benefits is part of that effort. Now that this legislation has passed the Senate, I will bring it to the House Floor for a vote.

The bill also extends the first-time home buyers’ credit and some business tax credits.

Apparently Republican lawmakers saw little hypocrisy in blocking help for the jobless for more than a month, then voting unanimously (98-0) for the bill. It likely wasn’t a sudden epiphany that moved them, but simple political expediency—judging by the comments on our blog from angry workers, the Party of No Senators likely heard an earful about their obstructionism.

In September, the House passed a benefits extension, but several times last month Senate Republicans blocked votes on the bill. The bill that passed last night would provide an additional 14 weeks of benefits to employed workers in all states and an additional six weeks for jobless workers in states with a 8.5 percent or higher unemployment rate. Because the Senate made changes to the House bill, a second House vote is requited.

Nationwide, official unemployment stands at 9.8 percent and is expected to get even worse when October’s jobless numbers are released tomorrow. Some 26 million U.S. workers are unemployed or underemployed, and the long-term jobless rate is the highest since 1981. More than one in three people who are unemployed have been out of work for at least six months, according to National Employment Law Project (NELP).

This article originally appeared in AFL-CIO blog on November 5, 2009. Reprinted with permission from the author.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. I came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When my collar was still blue, I carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. I’ve also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen me at one of several hundred Grateful Dead shows. I was the one with longhair and the tie-dye. Still have the shirts, lost the hair.

Employee With MS Wins Appeal In Seventh Circuit “Regarded As” Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and “unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

Multiple Sclerosis Is A Disability

The first part of the lower court’s ruling pronounced that Brunker had no claim because he was not disabled. In other words, the fact that he had multiple sclerosis didn’t matter, according to the court — even if that’s why he was fired — because MS was not a disability.

The court’s logic was based on case law developed under the ADA which left millions of people with disabilities unprotected from employment discrimination.

Fortunately,  the ADA was amended this past year. Under the new act, multiple sclerosis would be considered a disability (and should have been under the old act as well) so a judge theoretically should not be able to throw the case out on similar grounds. (the court did not address the amended ADA because the case was filed before it was passed)

(For information on new regulations proposed under the amended ADA see the article in the Connecticut Employment Law Blog)

Being Regarded As Disabled Is A Violation Of The ADA

Under the ADA (both the old act and the new one) a person has a claim for disability discrimination if he or she is subjected to an adverse employment decision because he or she is regarded as disabled.

To prove disability discrimination under a “regarded as” theory the employee can win by proving that:

• The employer mistakenly believes that the employee has an impairment that substantially limits a major life activity, or
  

• The employer mistakenly believes that an existing impairment, which is not actually limiting, does substantially limit a major life activity (functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working)

In this case, the Court of Appeals decided that Brunker presented enough evidence that he was fired because Schwan’s regarded him as being disabled. In reversing the lower court, the Court of Appeals stated:

The record contains adequate evidence to support a theory that Schwan’s regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking.

For example, the day before he left for the Mayo Clinic, Schwan”s issued Brunker multiple corrective action reports, including a dress code violation, suggesting that Schwan’s did not believe that Brunker was able to care for himself because of his apparent conditions.

Furthermore, Schwan’s disciplined him even though other employees were not cited for similar violations.

As to Schwan’s motive, the Court of Appeals had this to say:

Schwan’s fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan’s decision to terminate him.

These facts are sufficient to create a triable question as to whether Schwan’s regarded Bunker as disabled when it fired him.

The Court Reverses Sanctions Against The Lawyers

It’s typical in these kinds of lawsuits for lawyers representing employees to request documents from the employer defendant to either prove their case  or disprove the defendant’s case. It not only typical; it is absolutely allowed the Federal Rules of Civil Procedure.

In what I can only say is a quirky, outlandish, and mean-spirited ruling, the trial court in this case imposed sanctions on Brunker’s lawyers because they pressed to get the information they believed necessary to properly represent their client.

For example, the lawyers asked for records on whether Schawn disciplined other employees who failed to follow its dress code or to keep accurate route books (some of the reasons give for the discharge).

A request to see co-employees personnel files in order to prove unequal  treatment or whether what the company is stating is true (pretext) is quite standard, but in this case the lawyers were sanctioned for making it.

The Court of Appeals reversed, holding that the information was relevant to Brunker’s disparate treatment claim since it related to the even handedness of the company’s expectations.

The Court also criticized the company’s lawyers for refusing to produce the requested documents and then using them to support their defense.

The Court said:

Indeed Schwan’s went further than merely raising an issue it had previously argued was irrelevant.

It faulted Brunker for failing to identify any route manager who had “similar performance issues” and was treated more favorably.

And Schwan’s also discussed the route manager who was terminated for failing to service customers, despite Schwan’s successful opposition to Brunker’s request for his personnel file.

Similarly,  Schwan denied the relevance of the personnel file of another former employee, Mike Devereaux, but then used parts of that file in the summary judgment reply.

Through its actions, Schwan’s concedes that the bulk Brunker’s requests were substantially justified. We therefore vacate the award of sanctions.

Conclusion

This case is a great win for both Mr. Brunker and his lawyers. He obviously had grounds to bring a case claiming that he was terminated because of his disability – and every right to have that case heard by a jury.

As far as the lawyers go, it’s always very difficult to get companies to produce the documents we need to prove our cases. Companies control the records in these cases and they do not give them up easily even when they are plainly relevant.

At the same time there is no doubt that lawyers representing employees have to get those documents both to support our clients claims and test the employers’ defenses. It’s simply a battle that must be fought.

The fact that these lawyers were punished for doing what they needed to do for proper representation of their client is plainly wrong. Fortunately, the Seventh Circuit Court of Appeals agreed.

images: www.pocketyourdollars.com bowtielaw.files.wordpress.com

This post originally appeared in Employee Rights Post on November 1, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment  and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 25 years of experience, Ellen has been listed in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV.

I’ve averaged 35 speeches a year for the last ten years. Most of my audiences have been comprised of executives. And if there is an overriding concern that they’ve voiced to me during these presentations it’s that employees aren’t as loyal as they used to be.

The executives give lots of reasons for this decline in loyalty. A bad work ethic. The desire to follow the money at the expense of any other consideration. The lack of commitment to company goals and objectives. The desire to stick it to the man (okay, that last one came from me).

That is why a poll a while ago that found that 61% of bosses were unhappy with their jobs is so interesting to me. Because to this blog-ster it clearly shows that the employees are simply following the lead of their bosses. They see the short-term focus and they are less inclined to go down with the ship when their bosses are the first ones diving into the lifeboats.

But it goes even deeper than that. The poll also asked for the primary reason that the executives were looking to move on. The top five were: 1. Lack of challenge/personal growth (20%); 2. Limited advancement opportunities (18%); 3. Compensation (13%); 4. Poor company culture (11%); and 5. Boss not a good match (10%). Sound familiar?

Maybe I’m showing my age here, but this reminds me of the old Mad Magazine cover where Alfred E. Newman is looking at the cover of Mad Magazine, that is looking in the cover of Mad Magazine, that is looking in the cover… Well you get the drift.

The executives are not only experiencing a crummy place to work, they are passing it along to the people who are below them. With gusto.

Crummy organizations don’t just happen. They are encouraged, supported and nourished. And with executives perfectly willing to take the big paycheck and corner office, but not willing to actually build a sustaining organization. That explains why most companies are a six cylinder engine that is, at best, running on a cylinder and a half.

One of my favorite sayings comes from Africa, “When the elephants fight, it’s the grass that suffers.” So for all the talk of CEO perp walks and Sarbanes-Oxley, the bigger issue is not the greed and illegality—it’s the overall lack of anything approaching stewardship in today’s organization. Executives, before you blame your people, heal yourself first.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.

Over the next few days, I’ll be taking a closer look at the provisions on the House health care bill – H.R. 3962, the Affordable Health Care for America Act. As was the case when the original tri-committee bill was released, the House committees have a ton of fact sheets on the bill that are required reading for folks looking to learn more.

Overall, the House bill is a bill that takes on the insurance industry. Here’s how:

A Public Health Insurance Option

First and foremost, the House bill creates a public health insurance option, available in the new health care marketplace called the “Exchange,” that would compete directly with private insurance. The public option won’t have to worry about profits or stockholders, and because it is run by HHS, it will have huge bargaining clout to get good rates from providers. Overall, while the public option in the House bill won’t save taxpayers as much money as a public option based on Medicare rates, it will still save money according to the CBO.

Because of all that savings, and because the public option will have a mandate to provide health care to people, not maximize profit, it will be a strong competitor to private insurance, keeping prices down and attracting customers. Private insurance will be forced to compete or face losing their most profitable customer base – the individuals and small group customers who are in the Exchange from the start.

Insurance Industry Regulations

The House bill puts new regulations on the insurance industry to curb their bad practices.

The practice of rescission – terminating someone’s insurance plan because they get sick – would be outlawed immediately. Similarly, as soon as this bill is signed, lifetime caps on insurance coverage would be outlawed.

After the Exchange is set up in 2013, all insurers, not just the ones in the Exchange, will be barred from denying care for pre-existing conditions, charging more if your are a woman or sick, or employing annual benefits caps. They will have to cap out-of-pocket expenses at a standard level, keep administrative costs down to below 15%, and publicly disclose and justify their rate increases.

Medicare beneficiaries and the unemployed will benefit as well, with overpayment to private companies through Medicare eliminated and COBRA coverage extended until the Exchange is set up.

Finally, the House bill will eliminate the anti-trust exemption on health insurance companies, making it possible to finally prosecute them for their monopolistic practices.

Immediate Relief

The House bill also provides immediate relief for people at the mercy of the insurance industry by setting up an interim high risk pool open to people who have been uninsured for at least a few months or who have been denied insurance because of pre-existing conditions.

Though clearly not a long term solution, the high-risk pool, combined with the COBRA extensions mentioned above, would get people out from the trap the insurance industry has put them in until full reforms kick in.

Taking on Drug Companies

The House bill also gives us significant savings from drug companies, which according to the Washington Post would amount to between $125 and $150 billion in cuts to their profits.

It does this by eliminating the donut hole which forces seniors to pay unaffordable prices for prescription drugs, starting immediately and completely closing the hole by 2019. It also requires the Secretary of HHS to negotiate for better drug prices for Medicare and Medicaid, and makes it easier for Medicare Part D to offer free generic prescription drugs to enrollees.

Of course, some issues, like biologics (new drugs exempted from generic competition), are still unresolved.

————————

There’s a lot to talk about in the House bill – employer responsibility, fair financing, a whole host of other reforms that take effect immediately. Over the next few days I’ll talk about those. However, the overall thrust of the bill is clear – it takes on the insurance industry for consumers, strengthening care for folks without insurance, on the individual market, in small and large businesses, and on Medicare and Medicaid.

About the Author: Jason Rosenbaum is a writer and musician currently residing in Washington D.C. He is interested in the intersection of politics and culture, media consolidation issues, and making sense out of our foreign policy disasters. He currently works for Health Care for America Now and he is also the webmaster for The Seminal.

This article originally appeared in Health Care for America Now on October 29, 2009. Reprinted with permission from the author.

Just in time for the World Series, 12 members of the Major League Baseball Players Association (MLBPA) have added their names to the broad coalition in support of the Employee Free Choice Act.

The players have signed a statement and are appearing in print ads in Washington, D.C., papers today. World Series contenders Shane Victorino and Jimmy Rollins of the Philadelphia Phillies and Mark Teixeira of the New York Yankees are taking part. They’re joined by Heath Bell, Dave Bush, LaTroy Hawkins, Torii Hunter, John Lannan, Andrew Miller, J.J. Putz, Justin Verlander and Adam Wainwright.

In a joint statement, these players say:

All Americans should have the same opportunity we’ve had—to be able to join a union without being fired and to negotiate with their employers without being penalized. Today, our country is facing some tough times. Health care costs are skyrocketing. Families are losing homes. Savings and retirement income are disappearing overnight.

Now more than ever, we need a strong union movement to protect our jobs, our pensions, and our future. The Employee Free Choice Act simply guarantees a level playing field for all workers. It makes sure everyone plays by the same rules. That’s as important in the workplace as it is in baseball.

The serious point here is that the choice to have a union on the job and bargain for a better life matters to workers no matter the sector—whether it’s a bus driver, a journalist, a casino dealer or a Major League Baseball player. The ability to bargain along with your co-workers for fair wages, good benefits and safe working conditions is a fundamental freedom that means a stronger economy for everyone.

This post originally appeared in AFL-CIO blog on October 29, 2009. Reprinted with permission from the author.

About the Author: Seth Michaels is the online campaign coordinator for the AFL-CIO, focusing on the Employee Free Choice campaign. Prior to arriving at the AFL-CIO, he’s worked on online mobilization for Moveon.org, Blue State Digital and the National Jewish Democratic Council. He also spent two years touring the country as a member of the Late Night Players, a sketch comedy troupe.

It’s almost Halloween, and you know what that means: buying tons of candy.

But why give your money to a company that treats its workers like Oompa-Loompas? They were slaves who got paid in beans, remember! (Don’t be fooled by their catchy songs; that’s just a show they put on for the boss. You should hear the things they say about him in the break room.)

UnionPlus has a great list of yummies made by members of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), the United Food and Commercial Workers (UFCW), and the United Farm Workers of America (UFW). Among them are:

• Hershey’s Kisses
• Hershey’s Milk Chocolate Bars
• Kit Kat Bars
• Caramello
• Cadbury Fruit & Nut Bar
• Jelly Bellies
• Red Vines
• Jawbreakers
• NECCO Wafers
• Clark Bar
• Ghirardelli squares
• Baby Ruth
• Butterfinger

(Note that some of these are made both in union shops in the U.S.A. and non-union shops in Mexico; the list has details on which ones you’ll want to check the country of origin labels on.)

It’s perfect for printing out and taking with you on your big candy run. So what are you waiting for? Get the list here.

This post originally appeared in Change to Win on October 27, 2009. Reprinted with permission from the author.

About the Author Jason Lefkowitz: is the Online Campaigns Organizer for Change to Win, a partnership of seven unions and six million workers united together to restore the American Dream for everybody. He built his first Web site in 1995 and has been building online communities professionally since 1998. To read more of his work, visit the Change to Win blog, CtW Connect, at http://www.changetowin.org/connect.

More than 5,000 people are packing the streets of downtown Chicago this morning, chanting, marching and rallying against Big Bankers and financial institutions that have taken taxpayer money and are using it to give big bonuses to CEOs and to lobby against financial reforms that would ensure they don’t go back on the public dole.

The crowd is marching to the Sheraton Chicago Hotel & Towers, site of the American Bankers Association meeting, to protest the banking industry’s greed and irresponsibility that crippled our economy, leaving millions of workers behind.

Photo by SEIU

After the house of cards they built collapsed, bankers and the financial industry took $700 billion in taxpayer funds for a bailout. But rather than reform their failed practices, they want to go back to business as usual—with the chance of again precipitating another financial collapse and need for taxpayer bailout in coming years.

AFL-CIO President Richard Trumka, who is joining union members and allies at today’s events, has a clear message to bankers: You work for us.

Business as usual is over. We are shutting it down. You work for us—not the other way around. Your job is to be stewards of our savings, to put and keep working families in homes, to lend the money companies need to create jobs. And you have failed. You’ve turned the American economy into your own private casino, gambling away our financial future with our money, and driving us to the brink of a second Great Depression—then sticking out your hand for taxpayers to bail you out.

Praising Barack Obama’s administration for trying to stop the out-of-control bonuses paid to executives at bailed-out banks, Trumka says we need to go further by setting tough new rules so that the financial industry can’t run our economy into the ground again.

Trumka calls for four key principles to be part of any financial reform:

• A new Consumer Financial Protection Agency to monitor banks and credit card companies and prevent abuses.
• Reform the Federal Reserve Board or create an agency capable of stopping systemic risk.
• More transparency so that hedge funds, derivatives and private equity markets can have real oversight.
• Reform of corporate governance and executive compensation to make the finance industry work on behalf of the real economy, not vice versa.

This shouldn’t be a moment, Trumka says, where we pretend we can go back to the old broken economy that benefited only a few at the expense of everyone else.

Our economy has been all but destroyed. We have to build a whole new one, based on good jobs, not on bad debt; with America investing in and exporting technology and world-class products, not financial crisis; where hard work is rewarded, not colossal failure; where workers have a real voice because they have the freedom to have a union if they want one; and where all of us have the health care we need.

Appearing on the local Fox affiliate this morning, Trumka said it’s an outrage the financial industry took billions in taxpayer dollars, yet uses its resources to lobby against regulations to prevent a crisis like this from happening again:

The bankers who took all the risk and now are doing everything that they can to block reform so that it doesn’t happen again. Now that’s the problem. They want to do the same things over and over again, and they want us to pay the price again.

This article originally appeared in AFL-CIO Now on October 27, 2009. Reprinted with permission from the author.

About the Author: Seth Michaels is the online campaign coordinator for the AFL-CIO, focusing on the Employee Free Choice campaign. Prior to arriving at the AFL-CIO, he’s worked on online mobilization for Moveon.org, Blue State Digital and the National Jewish Democratic Council. He also spent two years touring the country as a member of the Late Night Players, a sketch comedy troupe.