Outten & Golden: Empowering Employees in the Workplace

Minimum wage increases pass in Arkansas and Missouri

November 7th, 2018 | ThinkProgress Staff

Voters in Arkansas and Missouri have approved a ballot initiative that would significantly raise the minimum wage in their states, affecting nearly 1 million workers.

Despite President Donald Trump carrying both Arkansas and Missouri during the 2016 election and disapproval from Republican state legislatures, voters overwhelmingly voted in favor of a minimum wage hike, with 68 percent in favor in Arkansas and 61 percent in favor in Missouri.

In Arkansas, the current $8.50/hour minimum wage will be gradually increased to $11/hour by 2021, while in Missouri, the state’s measly $7.85/hour minimum wage would slowly reach $12/hour by 2023. That amounts to $455 million more in pay for Arkansas workers by 2021 — an average of $1,520 each — and more than $1 billion for Missourians by 2023, a total of roughly $1,485 per worker.

According to Rewire, the people most affected by the ballot initiatives are working women and mothers. Amy Wilson, a single mother of three children, works as a school custodian in Russellville, Arkansas and told the publication that an extra $1,520 in her pocket means a lot. She said she would be able to take care of “a lot of minor needs [that] add up over time,” like replacing car tires or buying clothes for her children somewhere other than Salvation Army.

While President Trump likes to boast that the economy is booming and wages are increasing, not everyone is feeling the effects. There are millions of workers across the country who work full-time, yet can’t afford to make rent every month or cover medical expenses.

Arkansas and Missouri join a growing list of states where wages have been raised in the face of the stagnant $7.25 federal hourly minimum wage.

Because both state legislatures are controlled by Republicans, fair wage activists have found that navigating politicians by raising the minimum wage via ballot initiatives is most effective. The legislature, however, could still react negatively to the results of the ballot initiative.

Such backlash would hardly be unprecedented. In Washington, D.C., the city council recently overruled its constituents by reinstating a tipped wage, and in Missouri, state lawmakers passed a law that prevented cities from raising the minimum wage on a municipal level. The law prevented St. Louis workers from earning a $10/hour minimum wage.

This article was originally published at ThinkProgress on November 7, 2018. Reprinted with permission. 

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant on the NPR Business Desk. She has also worked for NPR member stations WFSU in Tallahassee and WLRN in Miami.

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New Koch Brothers-Funded Super PAC Looks to Capitalize on Janus Decision Ahead of the Election

November 6th, 2018 | Eric Bradach

On the cusp of the midterm elections, Americans for Prosperity (AFP), a right-wing political advocacy organization founded by the billionaire Koch brothers, has endorsed eight GOP House incumbents in the hopes of weakening labor groups’ influence in Washington and ensuring that the AFP’s political agendas remain a priority in Congress.

AFP is a Koch-funded organization whose agenda is in line with other groups—such as Concerned Veterans for America, which is also funded by the Koch brothers—that work against progressive initiatives and protections for labor unions, healthcare reform and any effort to combat climate change, says David Armiak, a researcher for the Center for Media and Democracy, a Wisconsin-based nonprofit watchdog group.

On August 31, AFP endorsed eight GOP House incumbents as its “policy champions”: Peter Roskam (R-Ill. 6th), Dave Brat (R-Va. 7th), Ted Budd (R-N.C. 13th), Steve Chabot (R-Ohio 1st), Will Hurd (R-Texas 23rd), Erik Paulsen (R-Minn. 3rd), Rod Blum (R-Iowa 1st) and David Young (R-Iowa 3rd).

“AFP will fully activate its grassroots infrastructure through phone banks and neighborhood canvassing, as well as deploy targeted digital, mail, and radio advertising” to support these candidates in their upcoming elections, the organization writes in a statement.

While it’s hard to know the specific reason that the AFP singled out these eight GOP incumbents as its “policy champions,” the AFP has “correctly recognized that these are candidates who are vulnerable,” says Alexander Hertel-Fernandez, a political scientist and public affairs professor at Columbia University. According to the nonpartisan election analyst the Cook Political Report, many of them are in toss-up races. In three of the elections, Ill.-06, Iowa-01 and Minn.-03, polls currently lean Democrat.

Armiak says AFP’s newly formed super PAC, Americans for Prosperity Action (AFPA), allows all Koch brother-funded groups to consolidate their spending power into a single political ad-buying powerhouse. This makes it more challenging for an experienced researcher, such as Armiak, to track the money funneling through the Koch brothers’ political network.

“[The groups] are reorganizing their spending filing to make it more complicated,” Armiak says. “It’s a sophisticated network and difficult to figure out and will take a while to study to truly understand how it operates.”

This can be worrisome to progressive interest groups that AFP and Koch brother affiliates typically work against—such as those pushing for healthcare reform and environmental advocacy—because it allows AFP to spend more money against such interest groups with little disclosure of where their funds come from.

Organized labor groups especially may be negatively impacted after the Janus v. AFSCME Supreme Court decision this June. “[AFP wasn’t] directly involved in the Janus decision but heavily supported it,” Hertel-Fernandez says. The decision means right-to-work laws, which prohibit unions from charging non-members fees regarding union services like collective bargaining, now apply to the public sector. This could benefit AFP and its endorsed candidates because it could lessen the financial strength of unions, which will inevitably hurt their lobbying abilities in Washington, according to Hertel-Fernandez.

It’s likely AFP and the Koch brothers are eyeing the Janus decision as an opportunity to use it as justification to support federal right-to-work laws in the private sector, too, Hertel-Fernandez says. AFPA is a new weapon that allows the AFP to spend exorbitant amounts of money to support candidates who will push for private sector right-to-work laws, which are currently applied in 27 states.

As a super PAC, AFPA is not restricted to any donation or spending limits. While it is illegal for a super PAC to coordinate with political candidates, it can spend unlimited amounts to support any candidate it chooses with methods such as advertising and canvassing. Donors to AFPA know that if they want their agendas advanced, they have to keep financially supporting congressmen that have proven to be a strong return on investment by voting on legislation that suits their interests, says Hertel-Fernandez. The eight GOP incumbents AFP has endorsed have historically been aligned with the Koch brothers’ libertarian ideology and political interests.

“To Charles and David Koch, politicians are just actors who are just a means to an end. They are looking for people who will just do what they ask them to,” Hertel-Fernandez says. “They are willing to work with anyone to pursue [their] agenda.”

The Koch brothers and their political network are clearly focused on maintaining influence in Congress. But as we head into the polls today, political analysts and pundits are predicting a blue wave that might just thwart the Koch brothers’ attempt to keep control of the House.

This article was originally published at ThinkProgress on November 6, 2018. Reprinted with permission.

About the Author: Eric Bradach is an editorial intern for In These Times.

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Trump economic adviser calls federal minimum wage a 'terrible idea'

November 5th, 2018 | Laura Clawson

Larry Kudlow, one of Donald Trump’s top economic advisers, took some time the week before Election Day to call the federal minimum wage a “terrible idea.” Y’see, when it comes to the cost of living, “Idaho is different than New York. Alabama is different than Nebraska.” No! You don’t say! And in none of those places does working full-time at the current federal minimum wage of $7.25 an hour allow a person to afford rent.

In fact, lots of states and cities have increased their minimum wages. Nebraska voters raised their state’s minimum wage in 2014—it’s now $9. New York’s minimum wage is now $10.40 an hour and slated to go up to $11.10 at the New Year. Idaho and Alabama are at that federal poverty wage of $7.25 an hour, but Republicans in Alabama stepped in to stop Birmingham from raising its minimum wage to $10.10. 

Local control is not what Kudlow is advocating, though:

“I would argue against state and local [increases],” Kudlow said. “But that’s up to the states and localities.”

Big of him, I guess, but if it’s something he’d grudgingly allow rather than something he’s arguing for, then the position that the federal minimum wage is a “terrible idea” boils down to “I don’t like the minimum wage at all and think companies should be able to pay as little as they can get away with.”

This blog was originally published at Daily Kos on November 3, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

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Google employees demand company do something about sexual harassment and pay inequality

November 2nd, 2018 | Casey Quinlan

All over the world, employees at Google are demonstrating that they won’t tolerate sexual harassment, low pay, and other poor working conditions. Google workers in  London, Zurich, Dublin, Berlin, Tokyo, and Singapore organized walkouts on Thursday. U.S. workers in New York, Atlanta, Chicago, Seattle, San Francisco, and Mountain View, California have also walked out.

Workers were responding to a New York Times article from last week that showed the tech company paid millions of dollars to male executives who were accused of sexual harassment and kept it a secret. One of these executives, Andy Rubin, was given a $90 million exit package despite a woman’s credible claims of sexual violence.

Google staff have decided to leave notes on their desks that read, “I’m not at my desk because I’m walking out with other Googlers and contractors to protest sexual harassment, misconduct, lack of transparency, and a workplace culture that’s not working for everyone,” according to the BBC.

According to a 2017 Women in Tech survey, 53 percent of female tech employees said they had experienced harassment when working in tech and 63 percent of women said it happened two or three times. Twenty three percent of women who experienced harassment said they reported the incident to senior leadership and 16 percent reported it to HR. Thirty-five percent of those workers who reported said they suffered repercussions and only 9 percent said their harassers experienced consequences for their actions.

Workers also have a specific set of demands for management, including a commitment to end pay and opportunity inequality, disclosure of sexual harassment to the public, an inclusive process for reporting sexual misconduct safely and anonymously, having the chief diversity officer answer directly to the CEO, appointing an employee representative to the board, and ending forced arbitration in cases of harassment and discrimination. The latter demand would apply to both current and future workers at Google. The chief diversity officer would also make recommendations directly to the Google’s board of directors.

Issues such as forced arbitration and nondisclosure agreements have received more attention after a slew of news stories broke last year showing powerful men had long histories of sexual harassment and violence — and that for decades, they got away with it.

In October, Rep. Jerrold Nadler (D-NY) and Rep. Bobby Scott (D-VA) introduced legislation that would ban mandatory arbitration and class and collective action waivers in labor matters. Earlier this year, Sens. Kamala Harris (D-CA) and Lisa Murkowski (R-AK) introduced a bill to prohibit certain kinds of nondisclosure agreements (NDAs) that aid to silence sexual harassment victims.

Brenda Salinas, a Google employee in London, told The New York Times that although she did not participate in the walkout due to an injury, she supported it.

“Last week was one of the hardest weeks of my yearlong tenure at Google, but today is the best day. I feel like I have thousands of colleagues all over the world who like me, are committed to creating a culture where everyone is treated with dignity,” she told the Times.

Sundar Pichai, the company’s chief executive, said on Wednesday that “Employees have raised constructive ideas for how we can improve our policies and our processes” and that “We are taking in all their feedback so we can turn these ideas into action.”

Google workers have been trying to address issues of inequality and gender and racial biases in their workplace for years. One example of this tension is the 10-page memo authored by James Damore that was circulated throughout the company last year and that opposed hiring that considered racial and gender diversity in tech. Damore suggested that women were biologically unsuited for advancement in tech and listed personality traits he said women have more of. Damore wrote, “Neuroticism (higher anxiety, lower stress tolerance). This may contribute to the higher levels of anxiety women report on Googlegeist and to the lower number of women in high stress jobs.”

Damore was eventually fired in August of last year, after the memo was leaked to the press. Last year, the Department of Labor also reviewed a sample of compensation data for Google. The department  has accused the Google of “extreme” discrimination against female employees and said there is a “systemic” gap in pay between men and women at company. Google has resisted giving the department all the data it has on the matter, and in July of last year, an administrative law judge sided with Google and said the request was “unduly burdensome.”

Now there is a revised gender-pay class action lawsuit against Google that adds a complainant and says Google asked people for their prior salaries before hiring them, according to TechCrunch. California recently passed a law that doesn’t allow employers to ask applicants about their previous salaries. If someone discloses that information without being asked, the employer is not supposed to consider it when deciding how much they should be paid. On Friday, the class action moved forward with a hearing in San Francisco.

Google spokesperson Gina Scigliano told TechCrunch in January, “We disagree with the central allegations of this amended lawsuit … We work really hard to create a great workplace for everyone, and to give everyone the chance to thrive here.”

Across the world, employees are showing Google they disagree.

This article was originally published at ThinkProgress on November 2, 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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Equal Pay for All

November 1st, 2018 | AFL-CIO Now

Today is Latina Equal Pay Day, the day in the year when Latina pay catches up to that of white, non-Hispanic men. That means Latinas work nearly 23 months to make what white, non-Hispanic men earn in one year.

More than 50 years after the passage of the Equal Pay Act, women still get paid less for the same work. But women of color—Latinas especially—experience the widest wage gap for the same jobs.

While it’s shameful that women are still fighting for equal pay, there are steps we can take to close the gap. The best way is to join a union. Through union contracts, women have closed the wage gap and received higher pay and better benefits. In fact, union women earn $231 more a week than women who don’t have a union voice.

When women are represented by unions and negotiate together, they have the power to create a better life.

Check out some facts below about Latina Equal Pay Day, and learn more from AFL-CIO Secretary-Treasurer Liz Shuler here.

  • Latinas get paid only 53 cents to every dollar a white, non-Hispanic man makes—the largest gap in the nation.
  • Latinas must work 23 months to earn what a white man does in 12 months.
  • The average weekly earnings for Latinas is $621, compared to the $815 that white, non-Hispanic women bring home every week.
  • Latinas in unions earn 48% more.

This blog was originally published by the AFL-CIO on November 1, 2018. Reprinted with permission. 

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Climate change is taking a severe toll on Florida farmworkers, new study shows

October 31st, 2018 | ThinkProgress Staff

Climate change is taking a heavy toll on farmworkers in Florida, where new research indicates excessive heat stress is increasingly becoming a public health problem with severe human rights and economic implications for the state.

A new report released Tuesday by the non-profit organization Public Citizen, along with the Farmworker Association of Florida (FWAF) and a researcher at Emory University, corroborates what advocates have argued for years: that climate change is impacting farmworkers in Florida.

An analysis of temperature data for all of the state’s 67 counties between May 1 and September 30, 2018, found that workers across Florida were exposed to dangerous levels of heat — temperatures above 82.4°F for moderate work and 78.8°F and 77°F for heavy and very heavy work respectively. Long-term exposure to high temperatures can spark fatigue and nausea, along with heat stroke, dehydration, and over a prolonged period, organ failure.

This temperature assessment was then combined with a study from Emory which had 250 Florida workers wear special equipment while working in order to study their reactions to heat. Blood and urine samples were also collected as part of the study, which ultimately found that four out of five workers were exceeding 100.4°F in body temperature on at least one day during the study, increasing their susceptibility to heat illness.

Entitled “Unworkable,” the final report serves as a dire warning in a state where heat-related hospitalizations are already among the highest in the country. Outdoor workers across a number of sectors, including farming and construction, are already disproportionately vulnerable to high temperatures and shifting climate, something they say global warming will only worsen.

“The price we pay for our food exacts a price too high for the [people] who harvest it,” said Jeannie Economos, a pesticide safety and environmental health project coordinator with FWAF.

Earlier this month, the U.N. Intergovernmental Panel on Climate Change (IPCC) released a dire assessment that found that the world only has around 12 years left before crossing over a dangerous global warming threshold. The panel indicated such a move could be catastrophic. Meanwhile, climate scientists have long worried that warming trends are disproportionately harming vulnerable communities, including laborers like farmworkers.

On a call with reporters on Tuesday, Economos and other advocates and experts spoke about the increasing risks climate change is posing to Florida’s farmworkers. 

Advocates hope the report on Florida farmworkers released this week will open up new conversations about the impacts of climate change. In addition to imperiling human rights, experts stressed on Tuesday that warming weather is also becoming a public health crisis.

“[It is] important that we recognize that climate change is affecting our health now,” said Dr. Cheryl Holder, the interim president of Florida Clinicians for Climate Action.

Doctors in states like Florida are increasingly seeing a spike in workers suffering from heat-related illnesses, sometimes when it’s too late to prevent life-altering problems. Typically low-income, and oftentimes undocumented, farmworkers have been known to put off seeking treatment for their symptoms. This can lead to kidney failure following prolonged periods of heat exposure and dehydration, at which point they typically need dialysis.

“If someone ends up on dialysis in this country regardless of your income status, you will be covered, and that’s quite a lot of dollars that we will be paying [in Florida],” said Holder, nodding to the economic implications, while also emphasizing the groups most likely to suffer amid warming temperatures.

“The most vulnerable [to climate change] are children, elderly, [and] poor people,” she said.

Farmworkers themselves are aware of what is happening, Economos said. “You talk to farmworkers and they know it’s getting hotter; they feel it, they’re worried,” she explained.

This week’s report follows a July plea from 130 organizations to the Occupational Safety and Health Administration (OSHA) to take action and provide protections for farm and construction workers.

At that time, David Arkush, managing director for Public Citizen’s climate program, told ThinkProgress that efforts to protect outdoor workers have long been a point of concern for advocates, but that increasingly dire climate warnings have injected such efforts with a new sense of urgency.

“Looking at the string of heat records, looking at the projections for the future… we think that we need to protect workers as temperatures rise,” said Arkush. “Even in the best case scenario, even if we manage to halt all greenhouse gases tomorrow, the problem of heat stress is only getting worse. But also we think that the problem of heat stress is a great way to raise public awareness in the United States about climate change.”

No laws, in Florida or nationally, currently protect farmworkers from heat stress. Advocates have called on OSHA to offer work breaks in the shade coupled with hydration opportunities.

But even those asks have their downsides. At the time of the July plea to OSHA, advocates told ThinkProgress they had concerns that workers would need more than just breaks and water to prevent heat exposure impacts. Many earn their income by piece — according to how much they pick, collect, or harvest — as opposed to hourly, meaning that any breaks (including to use the bathroom after drinking water) directly hit their income.

Issues like labor and immigration have long dominated the community, with many farmworkers engaging in activism over the years in an effort to protect themselves. Now they are organizing around climate change, but many have found the endeavor frustrating.

In August, ThinkProgress reported from Florida on the disillusionment farmworkers feel with lawmakers in the state, many of whom, they say, are slow to act on climate change. Global warming has emerged as a leading issue in the state’s midterm election cycle, which has been dominated by environmental issues even as a number of conservative candidates — including gubernatorial hopeful Ron DeSantis — have attempted to downplay climate change while emphasizing their green bonafides.

That approach is becoming increasingly unsustainable in low-lying Florida, as sea-level rise and hurricanes become ever-more pressing issues. On Tuesday, advocates reiterated that action to help farmworkers is needed, urgently, along with an effort to mitigate the crisis they are facing.

“This is an issue, we need to look at all aspects of this,” said Economos. “But most importantly we need to protect people…[and] to recognize climate change.”

This article was originally published at ThinkProgress on October 31, 2018. Reprinted with permission. 

About the Author: E.A. Crunden is a reporter at ThinkProgress focused on environmental and world issues, as well as immigration and social justice in the U.S. South and Appalachia.

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Mar-Jack: OSHA Inspectors “Are Not There For Us”

October 30th, 2018 | Jordan Barab

I wrote earlier this month about a court decision in the Mar-Jac case restricting OSHA’s ability to expand inspections at poultry plants — even when the company’s log shows high rates of injuries and illnesses — despite the industry’s record of unsafe conditions.

When conducting an inspection about a specific incident, you may recall, OSHA is only allowed to look at factors surrounding the incident and anything within the sight of the inspector. For that reason, when an OSHA inspector requested to inspect a worker’s locker where his tools were stored, Mar-Jac told the inspector that he could only walk through the plant if he agreed to wear a cardboard box over his head to blind him to any safety hazards.

The Atlanta Journal Constitution published an article earlier this week about the court decision and its effect on OSHA.

Asked why Mar-Jac didn’t want the OSHA inspector walking through its plant, [Larry Stine, an attorney for Mar-Jac] told the AJC that Mar-Jac has its own safety personnel to conduct reviews and look for issues in an ever-changing work environment. OSHA inspectors are “enforcement officers,” he said. “Their jobs and what they try to do is find violations. They are not there for us, to be safety consultants.”

Look at that last sentence a bit closer: “They are not there for us….” They’re just “enforcement officers.”

So who is OSHA there for?

The goal of an OSHA inspector is not just to “enforce” the law. The law is not the end. The law it the means to the ultimate end — which is to protect workers.

So the manager may be correct, they are not there for “us,” if by “us” he means managers and not the company’s workers (who, I guess, are not part of “us.”)  And, of course, OSHA is not there for “us,” if he believes that managers have no interest in maintaining a safe workplace — with, as I just said, is the whole point of enforcement.

So no, OSHA is not there to be a “safety consultant.” A company the size of Mar-Jac has more than enough resources to hire its own safety consultants before OSHA arrives to ensure safe conditions in the plant. (And smaller companies that can’t afford consultants can take advantage of OSHA’s free Onsite Consultation Program.)

And indeed, Mar-Jac boasts that it “has its own safety personnel to conduct reviews and look for issues in an ever-changing work environment.”

So if those reviews are useful, and the company actually implements the results of those reviews, they should have no problem allowing OSHA inspectors to wander anywhere they want to go in a plant.

But not according to Stine.

“Why,” Stine said later, “would you want to subject yourself to multiple fines where I would rather find it and fix it myself?”

Or, Mar-Jac workers and OSHA inspectors might ask, why would you fear multiple fines when you’ve allegedly found all the problems and fixed them yourself? And if you haven’t fixed them, why don’t you deserve multiple fines?

This blog was originally published at Confined Space on October 26, 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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What will Florida's new governor do for workers after a hurricane?

October 29th, 2018 | Laura Clawson

Natural disasters create major challenges for workers on at least two fronts: people who can’t get to work or whose jobs disappear and need support, and the workers who help make recovery happen are too often underpaid and exploited. Saket Soni and Andrea Cristina Mercado, the executive directors of Resilience Force and New Florida Majority, respectively, write in the Orlando Sentinel that, after Hurricane Irma:

The human cost was also profound, as people struggled to rebuild their lives. Unfortunately, the most vulnerable often did so with little help from the government. Only 53 percent of eligible workers received disaster unemployment assistance, a cash benefit for those who lose their jobs because of a disaster. Tens of thousands stood in lines for hours at four South Florida sites in the heat to receive disaster food stamps, assistance to buy groceries and other food items, only to be turned away.

What should voters look to the next governor of Florida to do?

Some may criticize the notion of an expanded social safety net, saying that jobs, not welfare, are the solution. They could support our next governor in capitalizing on the momentum of the current movement for New Deal-style publicly funded jobs, as exemplified by Cory Booker’s Federal Job Guarantee Development Act. The next governor should also use existing work-force development or AmeriCorps funds to engage the unemployed and underemployed in high-need areas to mitigate climate change and repair, rebuild and prepare for the inevitable next disaster.

This blog was originally published at Daily Kos on October 27, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

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Trump’s NLRB Just Quietly Ruled to Make Union Pickets Illegal

October 26th, 2018 | Moshe Marvit

An all-Republican panel of President Trump’s National Labor Relation Board (NLRB) recently ruled that janitors in San Francisco violated the law when they picketed in front of their workplace to win higher wages, better working conditions and freedom from sexual harassment in their workplace. The ruling could result in far-reaching restrictions on picketing that limit the ability of labor unions to put public pressure on management. 

The NLRB reached its conclusion by using the complex and convoluted employment structure created by the janitors’ employers. The janitors were technically employed by one company, Ortiz Janitorial Services, which was subcontracted by another company, Preferred Building Services, to work in the building of a third company.

This type of confusing employment relationship is increasingly common, resulting in workers being put in a position where it’s difficult to negotiate higher wages and better working conditions, or protect their basic employment rights.

The NLRB based its decision on a particularly onerous provision in federal labor law that prohibits employees from engaging in boycotts, pickets or other activities that are aimed at a secondary employer. The provision was added as part of the 1947 Taft-Hartley Act, taking away one of labor’s most powerful weapons.

In this case, the NLRB overturned an administrative law judge’s ruling that because the second company had significant control over the employment relationship, it constituted a joint employer. The judge based her conclusion on evidence that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors’ employment with Ortiz Janitorial Services. Therefore, both Ortiz and Preferred acted as joint employers to the janitors.  

This matters because if the various companies were joint employers, there were no prohibited secondary activities. But the NLRB held that the janitors worked for the subcontractor, and any actions aimed at any other company was illegal under the law.

What is remarkable about this case is how it makes things much worse for workers by only subtly reinterpreting the law. It takes a narrow read on the joint employment doctrine and thereby limits workers’ right to picket. And, as a result, many workers in what former U.S. Department of Labor Wage and Hour Administrator David Weil has termed “the fissured workplace” will find it difficult to vindicate their rights. Ultimately, this case shows how many basic fundamental rights associated with the First Amendment workers are prohibited from engaging in.

At their picket line in San Francisco, the janitors held signs demanding a municipal minimum wage increase, complaints about the companies’ labor practices and demands to stop sexual harassment. If any person other than the janitors had engaged in such a picket, their activities would clearly be protected under the First Amendment. However, because the NLRB found that these janitors “engaged in picketing with a secondary object prohibited by Section 8(b)(4)(ii)(B)” of the NLRA, these workers had run afoul of the law.

In 1984, labor law scholar James Gray Pope used the imagery of a ladder to highlight the absurdity of how the law treats workers’ picketing and speech rights as compared to how the law treats these activities for everyone else. “On the ladder of First Amendment values,” Pope explained, “political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a ‘black hole’ beneath the ladder.”

The First Amendment “black hole” for labor rights has become more apparent with the Supreme Court’s Janus decision, which created an onerous free-speech carveout breaking with decades of precedent for how to treat public sector workers’ free speech.

Instead of following its longstanding rule holding that the First Amendment only applies when a public employee speaks as a citizen on a matter of public concern, the Court held that a single employee’s complaint about union was a matter of First Amendment concern. Although time will tell, it appears unlikely that the Supreme Court will extend such First Amendment protections to public employees in cases that would help, rather than hurt labor.

The NLRB’s recent case restricting the picketing rights of subcontractors, temps and other workers who do not have a single direct employment relationship is a further sign that the labor board will continue limiting its joint employer doctrine. This will make it more difficult or even impossible for many workers to have any meaningful voice in the workplace. But the case also highlights some of the core problems of labor law as it currently exists. By being included under the NLRA, workers lose basic rights that all other Americans enjoy.

In addition to pushing for the NLRB to prevent employers from evading liability through a complex web of subcontractors, labor needs to push their way out of the First Amendment black hole that workers have been in for over 70 years.

This article was originally published at In These Times on October 26, 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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One Way to Defend Transgender People From Trump’s Attacks? Labor Unions.

October 25th, 2018 | Julianne Tveten

New York Times report this week revealed that the Trump administration’s assault on transgender, non-binary and intersex people has escalated. According to a memo circulating since last spring and recently obtained by the Times, the Department of Health and Human Services (HHS) is at the helm of an effort to define gender as either male or female, immutable and determined by the sex assigned at birth—a move that would dramatically roll back protections and recognition of people who fall outside the gender binary. The legal definition would fall under Title IX, the federal law that bars gender discrimination in government-funded education programs.

The change marks the latest development in the administration’s campaign to revoke preexisting U.S. gender-recognition policies, particularly regarding employment. In 2017, Trump rescinded an Obama-era executive order designed to restrict discrimination against LGBTQ employees of federal contractors. That same year, Attorney General Jeff Sessions argued that the Civil Rights Act of 1964, a federal workplace-equity law, did not protect transgender workers from discrimination. The Department of Justice would thus no longer side with transgender workers who sued their employers for discrimination on the grounds of the 1964 law. 

Now, activists fear that HHS’s proposed definition may further corrode protections for transgender, intersex and gender-nonconforming people in the workplace. Non-discrimination law is already fractured and deficient: According to the LGBTQ-rights nonprofit the Movement Advancement Project, 48 percent of the LGBTQ population lives in states that do not prohibit employment discrimination based on sexual orientation or gender identity.

If the proposal advances, one of the most immediate and robust forms of recourse for workers will be the leverage of organized labor. According to LGBTQ labor nonprofit and AFL-CIO constituency group Pride at Work, union contracts are the only form of legal protection against employment discrimination for transgender people working in 33 states. (In those states, it’s legal to fire a transgender worker based on their gender identity.)

Union contracts, which are enforceable in all 50 states, can contain clauses that specifically address gender-identity parity. “You can get any kind of non-discrimination language put into a contract that’s then enforceable through the provisions of that contract,” Jerame Davis, executive director of Pride at Work, told In These Times. “Basic non-discrimination that includes protections for gender identity and expression go a long way toward mitigating these issues.”

This is essential for workers who face not only a greater risk of firing, harassment, and unemployment—which is approximately 16 percent for transgender and gender-non-binary Americans—but also depend on transgender-inclusive healthcare. Union contracts can remove exclusionary language from insurance policies. Relatedly, they can expand what an insurance plan covers in terms of care related to a gender transition, including hormone treatment, gender-confirmation surgery and mental healthcare. For example, the Service Employees International Union (SEIU) and hospitality- and service-worker union UNITE HERE have passed resolutions for transgender-inclusive healthcare.

In addition to these material concerns, Davis cited some of the more subtle forms workplace discrimination can take. These include intentionally misgendering people by inappropriately referring to them by their sex assigned at birth, Davis explained. In addition, employers who issue “male” and “female” uniforms may also coerce employees into wearing uniforms that don’t suit their gender identities. 

Unions, too, can shield workers from these indignities, and can also codify gender-reflective access to restrooms. In 2015, the Occupational Safety and Health Administration (OSHA) issued a series of guidelines declaring that “every employee, including transgender employees, should have access to restrooms that correspond to their gender identity,” but these don’t constitute law, and gender-neutral or gender-appropriate restroom access isn’t mandated nationwide. “Aside from broad non-discrimination language,” Davis said, “most union contracts have a health and safety section in which language can be added to ensure trans individuals have appropriate access to facilities.”

While contracts are an integral source of worker recourse, Pride at Work cautions that they’re only as good as the efforts of workers to defend them—and that workers thus must strategize to protect their transgender and non-binary cohorts. The organization urges workers to take such strategic measures as placing pressure on unions whose health plans don’t include transgender-related care, vocalizing opposition to workplace harassment and striving to further organize unionized and non-unionized LGBTQ workers.

As of 2015, 15 percent of transgender workers surveyed by the National Center for Transgender Equality were unionized or had some level of union representation, compared to the national average of 12 percent. While the fraction is slim—a symptom of decades of neoliberal legislation in the United States—it’s possible for unions to leverage their power beyond the scope of the workplace, thus advocating for workers who aren’t unionized. The AFL-CIO, for instance, has endorsed transgender-rights legislation in Massachusetts and combatted North Carolina’s infamous (and defunct) 2016 House Bill 2, which would have denied transgender people access to appropriate restrooms.

Davis told In These Times that the AFL-CIO has a union lobbying operation in every U.S. state, allowing the organization to shape policymaking at the local, state, and national levels.

The HHS’s proposal has yet to pass, and it’s unclear when and whether it will. Given the gravity of the situation, however, union protections countering the federal government’s potential erasure of transgender and non-binary people have taken on a new level of urgency. “When the federal government is saying these people don’t even exist, it gives employers and other people in the community basically a license to discriminate,” Davis said. “The vast majority of trans people in this country would be left hanging with that kind of a definition in place.”

This article was originally published at In These Times on October 25, 2018. Reprinted with permission.

About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.

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