Outten & Golden: Empowering Employees in the Workplace

We Need a National Whistleblower Appreciation Day

July 29th, 2015 | Sydney Robinson

sydney robinsonOn July 30th, employee advocates across the country will be urging their members of Congress to declare July 30th National Whistleblower Appreciation Day. July 30th is an apt choice for such a day, as it was on that day in 1778 that the Continental Congress passed the first ever law protecting brave employees who wanted to keep our country free of fraud and crime. But America has a long way to go before those who blow the whistle are always lauded or considered heroes.

Fewer labels create such extreme, polarizing views than that of “Whistleblower.” For that reason, there can be a stigma attached to the act that prevents honest employees from coming forward when they see wrongdoing, knowing that they are risking their jobs, their freedom, and in some cases their personal safety to do so.

When it comes to whistleblowing in the area of National Security, the issue can be extremely divisive. Signed in October 2012, Presidential Policy Directive 19 (PPD-19) was President Obama’s attempt to address the issue in the wake of such newsmakers as Edward Snowden. When considering matters of intelligence or national security, U.S. courts have a tendency to cede to the other branches’ right to keep secrets. While it doesn’t take a foreign policy genius to realize that at least some secrecy is necessary to maintain the safety and security of the US and our nation’s interests abroad, June’s hearings on federal employee whistleblowers only highlighted the need for additional protections for those employees interested in protecting the interests of the American people by shining a light on wrongdoing.

In some circumstances, federal employees may be subject to protection from retaliation under the Whistleblower Protection Act. But the act doesn’t cover every wrong that may be reported. It is also limited by who may make a report and to whom the report may be made. If not reported in compliance with whistleblower laws, whistleblowers can lose their jobs for reporting government waste and fraud without any recourse.

Last month, the NSA announced plans to disband certain surveillance programs. This might never have happened without Senator Wyden’s infamous question to Director Clapper after Edward Snowden’s controversial disclosures. Needless to say, it can be difficult for a member of either Intelligence Committee to bring to the public eye any issue discovered. The Senate hearings on the brave employees who brought real issues to the public’s attention have shown that the American people’s interests are not always being protected by the government’s actions. The price of national security should not be the rights of employees.

Employees in the private sector face an even greater likelihood of retaliation for trying to do the right thing. Few laws exist to protect private sector whistleblowers. (See filing a discrimination claim http://www.workplacefairness.org/whistleblower-claim for newly-updated information on state laws which protect whistleblowers.) This is not the way our country should be run. In fact, protecting employees who step up with real concerns can save Americans time, money, and more in the long run.

Workplace Fairness supports the work of the National Whistleblower Center toward establishing a National Whistleblower Appreciation Day and has recently updated the following pages: Corporate Whistleblowers, Federal Whistleblowers, and Filing a Whistleblower or Retaliation Claim, to provide whistleblowers with the latest legal information about their rights. You can help by inviting your member of Congress to support whistleblowers here. If you would like to learn more about National Whistleblower Appreciation Day, please visit the National Whistleblower Day website.

By creating a National Whistleblower Appreciation Day, America can take a step forward by acknowledging whistleblowers as positive contributors to society, rather than pariahs who risk losing their careers and even their lives without adequate legal recourse.

About the Author: The author’s name is Sydney Robinson. Sydney Robinson is an intern for Workplace Fairness. She is a law student at The George Washington University Law School.

Permalink


Can Au Pairs Legally Be Paid Less Than $5 An Hour?

July 28th, 2015 | Bryce Covert

Bryce CovertBeaudette Deetlefs, who goes by Bella, thought being an au pair in the United States would be a great opportunity. The agency she applied to told her she’d travel with her host family on vacation, earn enough to put money into savings, and be treated like a member of the family.

But the when she arrived in Salt Lake City from her home country of South Africa, the reality turned out to be completely different. “What the company told us before we came here, and what actually happened when we got to America, was two different things,” she said. She says her host family wasn’t comfortable her living in the house, which made things tense, and wouldn’t take her on vacation. Sometimes she would be left behind with no food, and the pay was meager.

“The way [the agency] presented it is you can save money,” she said. “It’s not possible with a family that wants you to pay for everything … The pay we get is not enough to save and do stuff with.”

Federal regulations say the J-1 Visa Program, which governs au pairs, must comply with American minimum wage laws. A State Department pamphlet says as much. But a lawsuit Deetlefs and other au pairs have filed alleges that the 15 agencies in the U.S. illegally paid less than minimum wage. Agencies require host families to pay a minimum stipend of $195.75 a week, and because au pairs put in 45-hour weeks, the hourly wage comes to just $4.35. The agencies say that these wages comply with the guidelines set by the Department of Labor and the State Department.

“The State Department has regulations that are specific to au pairs, not even just the J-1 program,” said Matthew L. Schwartz, a lawyer from Boies, Schiller & Flexner working on the case. “They say explicitly that the sponsors are in charge of ensuring that au pairs are paid in accordance with the Fair Labor Standards Act [FLSA],” the law that requires all American workers to be paid minimum wage and overtime.

Go Au Pair President Bill Kapler, one of the agencies named in the lawsuit, said his company simply complies with guidelines sent to it by the government when it tells families that the minimum weekly payment is $195.75. “We truly believe it’s what we’ve been told to do,” he said. “If the Department of Labor comes back and says, ‘We’ve changed some rules,’ we’ll follow whatever the rules are.” He pointed out the program “is not meant to be a labor thing at all,” but is run by the State Department to further foreign relations goals. Many other agencies named in the lawsuit declined to comment.

At the heart of the issue may be whether or not the host families can deduct the cost of room and board from what they pay. The complaint filed on behalf of the au pairs claims that families can’t deduct the costs of food and lodging against the minimum wage given that the program requires them to provide those things. But a 2007 letter from the State Department sent to the agencies and shared with ThinkProgress, indicates they may deduct 40 percent of an au pair’s compensation as the room and board credit, thus bringing their weekly stipend for 45 hours a week to $195.75 under the federal $7.25 an hour minimum wage.

Schwartz said that State Department has since withdrawn that notice and instead clarified that au pairs have to be paid in accordance with minimum wage laws. “We believe that the State Department pulled down the June 2007 notice because they realized it was erroneous once Towards Justice filed this suit,” he said. “We’re very confident in our view of the law.”

Either way, the deductions still wouldn’t account for higher state minimum wages, which the lawyers for the au pairs argue agencies would have to comply with. Twenty-nine states and Washington, D.C. have higher wage floors than the federal government does.

The lawsuit also argues that the agencies engaged in anti-trust behavior by conspiring to keep wages so low and in false advertising by making promises to the au pairs that didn’t turn out to be true for many of them. Kapler of Go Au Pair denied that the agencies coordinated on wages or that it made any promises in its advertising beyond “the facts and the rules.”

The complaint brought by Boies, Schiller & Flexner, the nonprofit Towards Justice, and the au pairs argues that the program has been plagued by low wages from the beginning. Started in 1986, sponsors paid just $100 a week for 45 hours of work. This caught the attention of the General Accounting Office in 1990, which issued a report saying that the au pair program was a “full-time child care work” program and the au pairs had to be treated as full-time employees. Later clarifications made it clear they had to be paid according to American wage and hour laws.

The low wages fit into the larger child care picture in the United States, in which care is expensive but also doesn’t pay workers very much. “It’s one more signal that the child care system is broken,” said Helen Blank, director of child care and early learning at the National Women’s Law Center.

The current situation doesn’t work for anyone. “It’s broken on both sides,” Blank pointed out. “Parents are really struggling to pay for child care … then the people who are paid for child care don’t get paid enough, don’t get benefits, and don’t get treated well.”

Median pay for U.S. residents who provide child care is just $9.38 an hour, more than what au pairs can expect but on par with fast food employees, bar tenders, and parking lot attendants and less than people who care for animals in zoos or homes. Their pay increased just 1 percent between 1997 and 2013 — barely keeping up with the rising cost of living. At the same time, however, the cost of care for an infant can reach as much as $16,500 a year, on average, and eats up a bigger portion of families’ budgets than food, rent, or, in many states, public college tuition.

So au pairs can be “a solution for families,” Blank noted. The complaint itself notes that “the sponsors extract premiums from families seeking affordable childcare with the sales pitch that even with significant sponsor fees, au pairs are significantly cheaper than other childcare options available in the United States.” In many cases, this is likely true.

Even if the au pairs prevail in their lawsuit against the agencies, it won’t fix this broken system. But Deetlefs hopes it changes things for people brought over to care for American children. She herself was fired from her position when she got involved in the lawsuit and is currently back home in South Africa. But she says it’s not about her. “The whole purpose for me is to make it better for the au pairs that come after us,” she said. “We already had a bad experience and I wish to spare them that.”

This blog was originally posted on Think Progress on July 28, 2015. Reprinted with permission.

About the Author: The author’s name is Bryce Covert. Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Permalink


Twitter Regrets Throwing Frat-Themed Employee Party

July 28th, 2015 | Lauren Williams

Twitter threw a summer soiree to rival all soirees Tuesday. The microblogging site hosted a college-frat-party themed happy hour for its San Francisco employees complete with beer pong, a keg, those iconic red Solo cups synonymous with underage drinking, and a proud banner that read “TW?TT?R ?R?T H?VS?.”

News of the party spread like wildfire after a female employee posted a picture to a women in technology group on Facebook. Fraternities and greek culture have become synonymous with sexism in the tech industry, which often referred to as the brogrammer culture that caters to white males and often excludes — or is hostile toward — women and people of color.

View image on Twitter

Twitter has since apologized for the party as spokesman Jim Prosser told Fusion, “This social event organized by one team was in poor taste at best, and not reflective of the culture we are building here at Twitter. We’ve had discussions internally with the organizing team, and they recognize that this theme was ill-chosen.”

The “ill-chosen” party theme marks the latest in a series of missteps regarding the company’s handling of gender-based issues — most notably a gender discrimination lawsuit. Former software engineer Tina Huang claimed Twitter’s promotion process was biased toward advancing male employees over female employees up for the same job. Women make up less than a third of all Twitter employees — only 10 percent in tech jobs — and hold 21 percent of management positions, according to the company’s 2014 diversity report.

Twitter has been at the center of the industry’s perceived ineptitude when dealing with issues of diversity internally and when it comes to implementing policies for issues that predominantly affect marginalized communities. The company has made strides to improve its policies and image by making it easier for users to promote rape and death threats, and other instances of online harassment.

But the company continues to struggle with internal diversity efforts, namely its hunt for a new CEO. After Dick Costolo stepped down in June, Twitter co-founder Jack Dorsey took over as interim CEO while the company searches for a permanent, full-time replacement. (Dorsey is also the CEO for Square, an online payment system.)

So far, the preliminary candidate pool doesn’t reflect users call for more diversity. The early list of hopefuls don’t include any women or people of color. Twitter has only one female board executive, Marjorie Scardino, who was hired in 2013.

This blog was originally posted on Think Progress on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is Lauren C. Williams. Lauren C. Williams is the tech reporter for ThinkProgress with an affinity for consumer privacy, cybersecurity, tech culture and the intersection of civil liberties and tech policy. Before joining the ThinkProgress team, she wrote about health care policy and regulation for B2B publications, and had a brief stint at The Seattle Times. Lauren is a native Washingtonian and holds a master’s in journalism from the University of Maryland and a bachelor’s of science in dietetics from the University of Delaware.

Permalink


DOL Decision Could Mean the End of Wage Theft Through “Independent Contractor” Misclassification

July 27th, 2015 | David Moberg

David MobergAre you an employee?

It seems like a simple question that must have a simple answer for most people. But definitions in different laws and rulings enforcing the laws vary. And that variation provides an opening for a growing number of employers to cheat governments of taxes and workers of income, benefits and protections by misclassifying their employees, especially as “independent contractors.”

Last week, the administrator of the Department of Labor’s Wage and Hour Division, David Weil, released a “letter of guidance” that clarifies who is an employee and who is an “independent contractor”—that is, essentially an individual running his or her own business. He argues that the most definitive statement from Congress comes from the Fair Labor Standards Act, which says that “to employ” means “to suffer or permit to work.” And, he concludes, “under the Act, most workers are employees.”

The decision is “incredibly important,” says Catherine Ruckelshaus, general counsel and program director of the National Employment Law Project (NELP), a pro-worker nonprofit organization, and may help to clear up confusion in the courts and encourage more enforcement of the law.

In recent years, many companies—from 10 percent to 30 percent or more of employers—employ at least several million people who are misclassified as independent contractors, according to a recent NELP report. They even go so far as to require workers to form a limited liability corporation or franchise (with themselves as the one and only participant) or to sign contracts declaring that they are independent contractors. According to another study from economist Jeffrey Eisenach of George Mason University, the number of independent contractors rose by one million from 2005 to 2010, including both fake and real contractors (often unemployed workers who re-label themselves as “consultants”).

One high-profile example is the Federal Express delivery driver—who wears a FedEx uniform, drives a company truck, follows a route set by the company and still is treated as a contractor. Weil’s ruling may also tip the judgment against companies like the Uber taxi service, increasingly targeted in lawsuits as improperly treating its drivers as independent contractors.

When employers misclassify workers, they often pay less for contractors, but most important, the workers lose a wide range of protections and benefits under the law such as unemployment compensation, workers’ compensation, minimum wage and overtime regulations, and governments lose billions of dollars a year in taxes that support those programs.

In his recent book The Fissured Workplace, Weil argues that workplace phenomena like subcontracting, using independent contractors, franchising and other ways to make employers less responsible for their employees is not just a result of competition driving down costs, whether as a result of globalization, weakening of unions, new technologies or new work processes, but also “pressure from public and private capital markets to improve returns.”

Unlike the “common law” test for who is an employer, which emphasizes the degree of control over one’s work, the FLSA standard usually relies on an “economic realities” test, which examines many different dimensions of work without favoring one above all others. But in his guidance letter, Weil writes, “the ultimate inquiry under the FLSA is whether the worker is economically dependent on the employer or truly in business for him or herself.” But the varied economic realities tested include such questions as how integral the worker is to the business, how much does managerial skill affect possible profit or loss, how big is the worker’s relative investment, does the worker’s success rely on special business skills in addition to any technical skills, what kind of control does the employer exercise, or how permanent is the relation of the worker to the employer.

The impact of this guidance letter may first be felt in courtrooms and in various federal or state agencies, but Ruckelshaus hopes that employers will voluntarily take it seriously. More likely, it will only be quite meaningful if there are systematic state and federal efforts to audit employer behavior, especially in industries where abuses are common, such as lower-skill construction, home care and janitorial work. Unions are also in a position to push for more vigorous enforcement, as Ruckelshaus said the Carpenters have been.

And when it is clear that the workers are not contractors but employees, the unions can do the workers a favor and invite them to join the union.

This blog was originally posted on In These Times on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is David Moberg. David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at [email protected]

Permalink


Grocery Chain’s Financial Meltdown Could Leave Thousands of Union Workers Jobless

July 23rd, 2015 | Bruce Vail

Bruce VailPlans to dismember the A&P supermarket chain were revealed in a federal bankruptcy court in New York this week, with dire results predicted for more than 15,000 members of the United Food and Commercial Workers (UFCW) union.

The historic grocery retailer—the original Great Atlantic & Pacific Tea Co. was formed back in 1859—intends to sell or close all of its 300 stores spread across six Mid-Atlantic states, according to documents filed Monday in the U.S. Bankruptcy Court for the Southern District of New York. The plan will affect every one of an estimated 30,000 UFCW members currently employed with the company, with more than half of those in real danger of losing their jobs soon, union officials say.

The bad news for the union was partially tempered with the announcement that A&P had already lined up the sale of 120 of its stores to other regional grocery chains that also have UFCW contracts. If those sales go forward as planned, most of the 12,500 union members at those 120 stores would be expected to retain their jobs under the new owners. The prospective buyers—ACME Markets, Ahold USA (operator of Stop & Shop) and Key Food—already have UFCW collective bargaining agreements covering the 120 stores in Pennsylvania, New York and New Jersey (A&P stores are also located in Connecticut, Delaware and Maryland).

But those plans don’t include any future employment for workers at the other 180 stores, including 25 that A&P says it will seek to close immediately. All sales or closures are subject to approval by Bankruptcy Court Judge Robert Drain, and the process of selling off or closing stores is expected to begin soon but drag out for months. ACME Markets, for example, issued a statement saying that it didn’t expect to finalize purchase of any A&P stores until mid-October.

Very few union members were taken by surprise by these developments, says Wendell Young IV, President of UFCW Local 1776 in Philadelphia. A&P, which also operates under the trade names of Pathmark, Waldbaums and Superfresh, has been ailing financially for years, he says, and underwent a painful bankruptcy reorganization in 2010-2012.

“I’ve been telling my members for two years that I didn’t think A&P was going to make it. We’ve been doing everything we can as a union to be prepared for this,” he tells In These Times.

The final demise of A&P was signaled last September, Young comtinues, when company executives announced a debt refinancing package that failed to include any new investment in the company. Rumors swept the supermarket industry soon afterwards that executives were intent on dismembering the company by selling off its valuable pieces, and discarding the rest, he says.

Young adds that part of the union preparation has been to revive a coalition of 12 separate UFCW locals with A&P contracts. Supported by legal experts and financial resources from the UFCW International headquarters in Washington, D.C., the coalition was first formed in 2010 to present a united labor front in dealing with bankruptcy issues at that time. The coalition ceased active operation when A&P emerged from the first bankruptcy proceeding in 2012, but was revived in June as a crisis at A&P appeared imminent, Young says. UFCW Local 1500 in New York, with about 5,000 members employed with A&P, is one of the coalition members most affected by the bankruptcy.

UFCW Region 1 Director Tom Clarke, who heads the coalition, did not respond to In These Times calls seeking additional information and comment. Christopher McGarry, A&P’s Chief Administrative Officer, began the bankruptcy process by threatening the unions. In a declaration dated July 19 and filed with the court July 20. McGarry warned:

It is imperative that the parties cooperate with one another and that negotiations be conducted as expeditiously as possible. While the Debtors are committed to pursuing consensual resolutions with their unions where possible, if consensual resolutions cannot be quickly achieved within the required deadlines imposed…the Debtors will be required to commence proceedings under sections 1113 and 1114 of the Bankruptcy Code to seek authority to implement both temporary and permanent modifications to the CBAs on a unilateral basis.

Section 1113 is the section of the bankruptcy code commonly used to cancel or revise labor contracts, even without any agreement from unions or union members. The coalition will resist any attempts by A&P to use bankruptcy law to cancel existing UFCW collective bargaining agreements. “If the process is to be the orderly sale or closure of all the stores, then there is no need to cancel any contracts. The union is fully prepared to negotiate decent contracts with any of the new owners, and in the case of store closings, the existing contracts should be honored by all the parties,” Young says.

This blog was originally posted on In These Times on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is Bruce Vail. Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Permalink


Vocational Education Should Be For Everyone

July 22nd, 2015 | Casey Quinlan

Casey_200x200The term “vocational education,” which means preparing students for a certain trade, such as auto repair or beauty school, initially began in 1917 to reduce unemployment and improve wages, and in the 1940s and 1950s, vocational education expanded to other subjects beyond agriculture and industrial work such as science, math and foreign language education.

At some point, however, vocational education earned a reputation as something reserved for “those students,” experts say. From 1982 to 1994, there was a decline in enrollment in vocational education for most groups of students, but the portion of black, non-Hispanic students and Asian/Pacific Islander students stayed about the same while the percentage of students with disabilities increased, according to the National Center for Education Statistics (NCES).

Since 1990, students enrolled in vocational education has declined from an average 4.2 credits to 3.6 credits in 2009, according to NCES data analyzed by the National Education Association. Meanwhile, enrollment in academic credits increased from 23.5 to 26.9 during the same period.

Hillary Clinton said it is necessary to change attitudes about how we see vocational education and that it is critical to support and develop the nation’s community colleges “and get back to really respecting vocational and technical work.” She also supported the idea of apprentice work, saying at a campaign event in South Carolina last month that there should be a tax credit for businesses that hire and train apprentices.

Vocational education is changing, but many still see it as something only low-income, mostly minority students are pushed into and an option that upper class students and white students wouldn’t be encouraged to take. As academics and authors on national education trends point out, when our society devalues anything that isn’t academic prep work and a pathway to a four-year university, it’s easy to see why people are suspicious of vocational education, which encourages students to gain practical, hands-on skills in a certain industry, versus learning about economic theories in a lecture format.

In many cases, there is good reason for that suspicion. Anthony Greene, assistant professor with the African American studies program at the College of Charleston found that racial-ethnic minority students are disproportionately placed into lower-level academic courses, and subsequently enroll in vocational courses. Even within vocational education, students of color, especially women of color, aren’t tracked into professions that earn as much money over time. Greene wrote a 2014 paper on racial trends in vocational education in the International Journal of Educational Studies.

“Think for a second on the ‘workers’ at colleges and universities across the country. In the vast majority of cases, women, particularly black and Latino, often are regulated to cook and cleaning staffs. Latino men are often regulated to grounds keeping, but white males tend to be in maintenance and heating and lighting and electrical,” Greene said. “Each one of these jobs come with a level of prestige accompanied by a variation of pay. I argue that these pathways in occupations begin in high school vocational programs.”

Jose Vilson, a middle school math educator in the Inwood/Washington Heights neighborhood and author of This Is Not A Test: A New Narrative on Race, Class, and the Future of Education, said he says similar patterns at his school.

“Usually the language is kind of coded like, ‘This kid isn’t really into academics,’ or ‘This kid doesn’t come to class a lot,’ or ‘Based on the way they volunteer, they seem to be very good with their hands,” Vilson said. “Who are we to say they aren’t good with academics? Maybe we haven’t given them the proper environment for them to succeed in an academic setting, and this isn’t just from white teachers. This comes from people who look like the kid.”

Vilson doesn’t oppose vocational training but would rather see more of an effort from educators to make sure they are encouraging students to follow their actual interests and make an informed choice on whether or not they want to take vocational education classes. Part of the problem, Vilson said, is that the professions we associate with vocational training, such as becoming an electrician or a plumber, are often devalued even though they make good money and are perfectly legitimate career options.

“I find there’s another element there too, in terms of what do we see as a professional job. You look at a plumber, for example, and they could be making money hand over fist, and people can denigrate the plumbing profession and make it into something that isn’t a profession in of itself. There just needs to be a certain set of skills that every American is entitled to,” Vilson said. “For the last 13 years, there has been a decline in having those types of skills in academic courses, like home economics and workshop. My focus is always going to be on students and allowing them to make a choice.”

Vocational training may typically lead people to envision beauty school and carpentry, but vocational programs are expanding to new subjects, and some programs, such as Denver Public Schools’ vocational education program, are much more modern. The district offers an engineering and energy pathway, biomedicine, engineering, and advanced manufacturing, said Laurent Trent, manager of strategic partnerships at Denver Public Schools at the school’s office of college and career readiness.

“Often, a student doesn’t realize they’re in a career and technical education class until they get in it and really like it and say, ‘Oh I’m going to take the next one.’ They don’t hold a lot of the stigma that their parents and other adults hold,” Trent said. “So, business partners and parents — in the best-case scenario, they don’t know — and in the worst, they do know and they associate it with vocational education of decades past, so we definitely wanted to signal that this is a new day.”

They’re also trying to reenvision some of the more traditional kinds of vocations, such as automotive work, to be more compatible with the modern workforce, Trent said.

“We’re thinking about that now, to take more old school programs and reimagine them into career pathways, so we’re thinking about how you take traditional construction and woodworking classes and change the structure so it aligns with a high-demand advanced manufacturing pathway. Certainly many of our investments are in other areas. Auto – for instance – does auto have a place in the engineering pathway? We’re still thinking through how that works,” she said.

To decide which programs reflect relevant growing industries, the school partners with the Office of Economic Development in Denver, to analyze data on which fields are developing rapidly. The school also received a “Youth CareerConnect” grant. Students are also doing job shadows and getting connected with mentors in their fields. Trent said the district is currently working with three universities on a preferential admissions agreement for students in the vocational education classes.

Philip Zelikow, co-author of America’s Moment: Creating Opportunity in the Connected Age, and White Burkett Miller Professor of History at the University of Virginia, said the best way to provide vocational education would be to integrate elements of vocational education into the rest of the academic curricula. He pointed to Camden County High School where you learn the theory in order to use the skills, such as learning how to investigate a crime scene and using instruments and writing up reports for actual hands-on skills.

“You unite theory and practice, which is actually a very interesting way to learn the theory and makes it much more accessible.” Zelikow said.

He argued that a child choosing one vocation early on in their high school career may be too rigid, since students often change their minds sometime in high school, if not college.

“They say, ‘We don’t expect these kids to get these academic subjects,’ and in effect, they’re tracking them since they’re 15. They’ve ended up spending their whole high school career to prepare to be an aircraft repairperson, but that may be too rigid and confining,” Zelikow said. “One of the advantages of the mainstreaming approach is that it builds up soft skills, basic literacy and numeracy, and the context in which you build up that literacy and numeracy isn’t all that important.”

When you separate vocational education from academic work, you emphasize class differences, Zelikow said, instead of helping all students build skills they will need in the future.

“You reinforce the problem of two Americas with this kind of educational system, which is duplicating the kind of class educational system you would have encountered in America in the 1850s, where a small number of students of a particular class would go to certain schools and everyone else was assumed to be good for nothing but farmwork,” Zelikow said. “In the period between 1880 and 1940, there was the universal high school movement and radical changes in college. These changes now look anachronistic, but they were a major overhaul of the system. It’s time for another overhaul.”

This blog was originally posted on Think Progress on July 21, 2015. Reprinted with permission.

About the Author: The author’s name is Casey Quinlan. Casey Quinlan is an education reporter for ThinkProgress. Previously, she was an editor for U.S. News and World Report. She has covered investing, education crime, LGBT issues, and politics for publications such as the NY Daily News, The Crime Report, The Legislative Gazette, Autostraddle, City Limits, The Atlantic and The Toast.

Permalink


Democrats push to limit abusive work scheduling practices like split shifts

July 22nd, 2015 | Laura Clawson

Laura ClawsonLow hourly wages aren’t the only thing that keep workers in the fast food and retail industries struggling. Scheduling matters, too. These days it’s common for workers to not know their schedules more than a week ahead; to be on call, ready to go to work with no notice, but not guaranteed any pay; for their hours (and therefore their paychecks) to vary enormously month to month; or to be forced to work split shifts, with a few hours of work in the morning and a few hours at the end of the day. All of this doesn’t just affect paychecks, it makes it difficult for workers to raise their incomes by getting a second job, and it costs them as they try to line up child care for unpredictable schedules. Democrats, led by Sens. Elizabeth Warren, Patty Murray, and Chris Murphy and Reps. Rosa DeLauro and Bobby Scott, have a bill to fix that, or at least start to fix it: the Schedules That Work Act.

The bill:

Protects Workers who Ask for Schedule Changes
All employees of companies with more than 15 workers will have the right to request changes in their schedules without fear of retaliation. Employers would be required to consider and respond to all schedule requests, and, when a worker’s request is made because of a health condition, child or elder care, a second job, continued education, or job training, the employer would be required to grant the request unless a legitimate business reason precludes it.Incentivizes Predictable and Stable Schedules in Occupations with Known Scheduling Abuses
Employees in food service, cleaning, and retail occupations—as well as additional occupations with documented scheduling abuses designated by the Secretary of Labor—will now get their work schedules two weeks in advance and will receive additional pay when they are put “on-call” without any guarantee that work will be available; report to work only to be sent home early; are scheduled for a “split shift;” or receive changes to their schedule with less than 24 hours notice.

There are two things to note about this: First, it’s the kind of bill Democrats wouldn’t be proposing without worker activism drawing attention to the problem. Second, it’s the kind of bill Republicans will never pass, so for workers to have these protections, we need to elect Democrats.

This blog was originally posted on Daily Kos on July 16, 2015. Reprinted with permission.

About the Author: The author’s name is Laura Clawson. Laura has been a Daily Kos contributing editor since December 2006  and Labor editor since 2011.

Permalink


N.M. Field and Dairy Laborers Win Right To Workers’ Comp—Court Calls Exemption ‘Absurd’

July 21st, 2015 | Joseph Sorrentino

The New Mexico Court of Appeals ruled in June that excluding field and ranch workers from workers’ comp protection is unconstitutional. It was the second victory for New Mexico’s farmworkers in less than a year—and that’s big news in a low-wage sector made up primarily of immigrant workers, where victories tend to be few and far between.

The first victory came last August when farmworkers finally started getting paid the correct minimum wage. Farmworkers were routinely, and incorrectly, paid the federal minimum when they were entitled to the New Mexican minimum wage, which is 25 cents per hour higher. It only amounts to $8 or $10 a week, but it is significant for these workers, who are among the poorest in the United States.

And now, after six years of legal battles, the state Court of Appeals has upheld a District Court ruling that New Mexico’s farmworkers are not to be excluded from workers’ comp protection.

Farm work is among the most dangerous jobs in the United States, consistently ranking in the top 10 for injuries and death. The Center for Disease Control and Prevention has reported that 167 agricultural workers are injured every day. Despite this, only 12 states require full workers’ comp for farmworkers (13 now, including New Mexico); it’s optional in 16 states and required but limited in 21 others. Until the Court of Appeals’ decision, workers’ comp wasn’t required for New Mexico’s field workers or for ranch employees who worked directly with animals. That meant that on a dairy, for example, truck drivers and bookkeepers were covered, but milkers and workers moving the cows weren’t.

As In These Times reported in December 2014, on-the-job injuries are the rule, not the exception, in New Meixco’s dairy industry, and the lack of workers’ comp left some workers in dire economic straits:

Working with large animals poses a real risk of injury. In 2012, attorney Tess Wilkes was part of a team at the New Mexico Center on Law and Poverty (NMCLP) that interviewed about 60 workers from various dairies in the state. Almost 80 percent of the workers said they had never received any safety training.

Most of the cows are docile, but not all. “The younger ones are dangerous,” says Antonio Jiménez, who worked in a dairy outside of Roswell during high school. “They don’t know how to be milked and [they] kick. Sometimes the ones that have just given birth [are dangerous], too.” The NMCLP survey found that 53 percent of the workers interviewed had been injured on the job, often more than once, and sometimes seriously.

In March, Matías Soto was working as a milker at a dairy in southeastern New Mexico. Somehow, a bull had gotten mixed in with the cows and stuck in one of the milking parlor gates. As Soto was trying to free the bull, he says, “It lowered its head and attacked me, lifting me 6 or 7 feet in the air. I hit my head on the concrete floor.” His skull fractured. But, he says, he wasn’t taken to the ER in Artesia, about 40 miles away, for three hours. He then had to be airlifted to a hospital capable of handling his injury. The cost of the helicopter alone was more than $60,000, and Soto’s hospital bills were in “the tens of thousands of dollars,” says María Martínez Sánchez, a former attorney at the NMCLP who worked with Soto. And the dairy had no workers’ compensation insurance.

Its medical insurance covered Soto’s medical bills, but not all of the helicopter costs. Instead, says Martínez Sánchez, Soto went into debt, borrowing from friends and relatives, although he eventually received a small amount of money in a settlement with the dairy.

In 2009 NMCLP filed suit challenging the exclusion on behalf of three injured workers who had been denied workers’ comp based solely on the exclusion. Attorneys from the organization argued that excluding farm and ranch workers violated the state constitution’s equal protection clause.

In 2011, 2nd District Court Judge Valerie Huling ruled that the exclusion is, in fact, unconstitutional. The New Mexico Workers’ Comp Administration (WCA) appealed that decision, stating that the District Court had overstepped its jurisdiction . The WCA lost that appeal, and the three workers in the lawsuit had their cases heard and were awarded workers’ comp benefits. But the WCA argued that the District Court ruling applied only to those three workers. Employers took that as a cue to continue routinely denying coverage to all other farmworkers.

In February of this year, NMCLP attorney Tim Davis challenged that interpretation in a suit on behalf of two injured workers who had been denied workers’ comp benefits. Noe Rodriguez suffered a head injury when he was attacked by a bull at the dairy farm at which he worked and Maria Angélica Aguierre broke her arm when she slipped and fell in a chile field. The New Mexico Court of Appeals unanimously upheld the District Court’s ruling that the exclusion was unconstitutional . The court stated, “Our review of the history of workers’ compensation statutes back to 1929 has not revealed an articulable purpose for the exclusion” and that the exclusion was “without purpose or reason and leads to absurd results.”

The ruling doesn’t mean that Rodriquez and Aguierre will automatically receive workers’ comp benefits, bu it means that their claims, and the claims of other injured farmworkers, can now be heard.

Maria Martínez Sánchez, one of the lead attorneys on the 2009 case, says she is “very happy” with the appellate opinion. “This ruling finally tells agricultural employers that they … must care for their workers in the same way all other employers in New Mexico are required to do,” she says.

While advocates are heartened by the Court of Appeals ruling, they’re also realistic. Farmworkers in New Mexico and across the United States continue to work under harsh conditions for little pay. The majority of states don’t offer farmworkers full workers’ comp benefits; most deny them overtime pay and the right to collective bargaining. Wage theft is rampant, as is sexual harassment and abuse. As Martínez Sánchez says, “There’s still much work to be done.”

This blog was originally posted on In These Times on July 20, 2015. Reprinted with permission.

About the Author: The author’s name is Joseph Sorrentino. Joseph Sorrentino is a writer and photographer. He has been documenting the lives of agricultural workers on both sides of the U.S./Mexico border for 12 years.

Permalink


Calm Down: SCOTUS’s ‘Friedrichs’ Case Won’t Mean the End of the American Labor Movement

July 20th, 2015 | David Moberg

David MobergWhile most liberals were celebrating the Supreme Court’s June rulings affirming both marriage equality and Obamacare, many labor leaders were already worrying about next year. They feared that the court might hear a case that many of them saw as potentially delivering a crippling blow to the union movement: Friedrichs v. California Teachers Association. And at the last minute, the court announced it would.

If a majority of the Supreme Court justices back the plaintiff in the Friedrichs case, promoted by a variety of right-wing, anti-union organizations, they will likely overturn the 1977 Abood v. Detroit Board of Education court decision. The Supreme Court ruled in Abood that when a public employee union provided benefits, such as collective bargaining or grievance processing, to both members and non-members alike, the non-members could be charged a “fair share” or “agency shop” fee to cover an appropriate share of union expenses. Critics of the Friedrichs petition say that if justices agreed with its complaint, the Supreme Court’s action would have the effect of passing a national right-to-work law for all public employees (even though public employed collective bargaining rights are primarily matters of state law).

The two big teachers unions (American Federation of Teachers and the National Education Association) and the two biggest unions of other public employees (American Federation of State, County and Municipal Employees [AFSCME] and the Service Employees International Union [SEIU]), responded with alarm to the court’s announcement:

“We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance, the Supreme Court has chosen to take a case that threatens the fundamental promise of America—that if you work hard and play by the rules you should be able to provide for your family and live a decent life.

“The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities—decisions that have stood for more than 35 years—and that have allowed people to work together for better public services and vibrant communities.”

Whether celebrating from the Right or mourning from the Left, many observers saw the Supreme Court’s decision to take the case as another nail in the coffin of the labor movement.

There are good reasons to be concerned. A ruling in favor of Friedrichs would legally and morally permit some workers to be “free riders”—individuals who take advantage of what the union by law must provide them without paying for it. Perhaps more important, it would disregard the fundamental reasoning behind the National Labor Relations Act (NLRA)-protected “union security clauses.” The law was intended to encourage collective bargaining, and if some workers could opt out of supporting collective bargaining, legislators reasoned, they would weaken the institution.

From a practical point of view, unions would lose income that they could be using to improve conditions for all workers, including organizing the unorganized (although only voluntary political contributions, not dues money, can be used for union political advocacy). And a ruling in favor of the plaintiff would be a symbolic blow, a legal slap in the face, to a movement which has endured many such blows in the past.

But there are many other reasons to think that, win or lose on this case, the labor movement may not be as seriously damaged as many now fear.

First, there is a chance that even with this very conservative court (whose conservative bloc split enough times to give the liberal bloc some unexpected victories this past term), a majority might vote against the Friedrichs plaintiffs. The Supreme Court has narrowed interpretations of Abood in recent related cases, such as Harris v. Quinn. In that case, the court ruled that home care workers paid by the state are not state employees and thus are exempt from fair share requirements. Conservatives typically argue that agency fee payers are forced to financially support speech with which they disagree, thus violating the First Amendment. They have even argued that collective bargaining constitutes political speech for public employees.

But surprisingly, as the union lawyers noted in their response to the Friedrichs petition, normally arch-conservative Justice Antonin Scalia has offered strong arguments in defense of the agency fee, going beyond the usual “free-rider” critique of people getting benefits without paying their cost.

“What is distinctive, however, about the ‘free riders’ who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests,” Scalia wrote in the case of Lehnert v. Ferris Faculty Association. Scalia would have to perform some pretty spectacular legal acrobatic maneuvers to move from that position to rejection of a “fair share” fee.

But even if unions lose the Friedrichs case, it need not be the end of the world. It might even prompt some change in strategy that would strengthen unions.

For starters, non-member workers who pay agency fees make up only about 9 percent of the public sector workers who are covered by union contracts, according to Bureau of Labor Statistics figures. And though the “fair share” payment varies by union, local, region and other factors, it is always at least a substantial reduction from full public worker union membership fees. With union density more than five times as great in the public sector compared to the rate of unionization in private business, and with unions feeling pressed for money already, any loss of public union income hurts, but it may not be a “life or death” situation, as some fear.

Also, it is hard to gauge how much difference Abood has made in the growth of public unions since the decision was handed down in 1977. At that time, 33 percent of the public sector was unionized (nearly 5 million members), and 40 percent were under contract; in 2014, 36 percent were members, and 39 percent under contract, according to Union Stats. Membership peaked at 39 percent of public workers in 1994, the same year that 45 percent were covered by a contract, then dropped to around 35-36 percent membership recently. (The number of public sector members peaked at 8.7 million in 2009.)

So it seems that having the Abood union security protection may have helped the public sector unions keep pace with employment growth and avoid, until recently, setbacks from massive employer attacks. But the effect seems modest. An AFSCME spokesperson emphasized that the union grew to be powerful before fair share; the implication is that they could do it again.

But didn’t Wisconsin Gov. Scott Walker’s Act 10 lead to huge union membership losses as a result of eliminating fair share payments? Yes, there were great losses, as the Washington Post reported: “The state branch of the National Education Association, once 100,000 strong, has seen its membership drop by a third. The American Federation of Teachers, which organized in the college system, saw a 50 percent decline. The 70,000-person membership in the state employees union has fallen by 70 percent.”

But unions lost the right to bargain over almost everything, lost dues check-off, were forced to have representation elections ever year and suffered other assaults that led to members no longer paying dues. The loss of fair share payments played a small role in the overall union losses. Indiana Republican Gov. Mitch Daniels rescinded an earlier executive order from Democratic Gov. Evan Bayh granting union representation rights to state employees almost as soon as Daniels took office in 2005. Now Illinois Gov. Bruce Rauner is trying to wipe out a broad swath of worker rights. If a win on Friedrichs emboldens the right-wing Republicans in the scope of their attack, then it could lead to other measures that could be disastrous.

Fourth, as labor lawyer Thomas Geoghegan writes in his recent book Only One Thing Can Save Us, no unions in Europe have the legal security protection U.S. unions have that permits a requirement that all workers either join or pay a fee to a recognized union in their workplace. Yet they have still fared relatively well. Of course, most European unions benefit even more from the laws that often extend the terms of union negotiated wages in an industry to all workers in the industry, whether they belong to a union or not.  That would make an enormous difference in the U.S., well worth even giving up an agency shop fee in order to obtain it, as Geoghegan makes a case for (which is one reason why it is unlikely to happen).

Finally, unions have discovered that there are other ways to deal with workers who are not on their membership rolls. For example, for the first half of last year, AFSCME set out to organize as full members 50,000 of the fair share payers or other non-members in workplaces where they had contracts. They organized 90,000. Some cases were easy—such as workers who thought they were members but weren’t. Renewing the drive this year, the union has signed up 50,000 more, according to an AFSCME spokesperson. The National Education Association has signed up 13,000 fair share payers as members, and other public sector unions are undertaking similar campaigns.

Internal organizing takes staff time and money, and some unionists fear that if the fair share requirement is dropped, not only agency dues payers but also current members may decide not to pay full dues or become full voting members. It is a risk, and the internal organizing adds new demands on already overstretched unions. But it also may lead unions to turn their membership into the active, educated force in the workplace and in the public arena that it already claims to be but all too often isn’t.

The biggest danger of a Supreme Court victory for anti-union forces in Friedrichs is the potential for encouraging more and more devastating legal and political attack on workers who want to organize. Bad as times are now, they could get worse. But the best defense—as well as the best offense to gain improvements—is a highly motivated, well-organized and politically savvy union workforce.

This blog was originally posted on In These Times on July 15, 2015. Reprinted with permission.

About the Author: The author’s name is David Moberg. David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at [email protected]

Permalink


Papa John’s Franchisee Faces Jail Time Over Stealing Workers’ Wages

July 17th, 2015 | Bryce Covert

Bryce CovertOn Wednesday, the owner of nine Papa John’s franchises in New York City pled guilty to the first criminal case brought by New York Attorney General Eric Schneiderman against a fast food franchisee over wage theft.

According to court documents, including company records obtained by the attorney general’s office, Abdul Jamil Khokhar, the franchisee, and BMY Foods Inc. paid its 300 current and former workers the same base rate for any hours they worked after putting in 40 a week, which under law should be paid time-and-a-half. To get away with paying less, they allegedly paid overtime hours in cash and created fake names for the employees in the timekeeping system. They then filed fraudulent tax returns that left out the cash payments made to employees under the false names.

Khokhar’s sentencing is set for September 21, when he faces 60 days in jail. He also faces paying the employees $230,000 in back wages as well as an additional $230,000 in damages and $50,000 in civil penalties.

BMY Foods Inc. declined to comment. A Papa John’s spokesperson said in an emailed statement, “Papa John’s is aware of the recent incident involving one of our New York franchisees who was taken into custody this morning. These allegations do not reflect our position as a company. We have a strong track record of compliance with the law. We do not condone the actions of any franchisee that violates the law. This particular franchisee has divested itself of most of its restaurants and is in the process of exiting the system. We will continue to monitor the situation closely and take appropriate action.”

Jail time is unusual for people who perpetuate wage theft, but Schneiderman may not be done. “My office will not hesitate to criminally prosecute any employer who underpays workers and then tries to cover it up by creating fake names and filing fraudulent tax returns,” he said in a press release. “We will continue to be relentless in pursuing the widespread labor law violations, large and small, which we have found in the fast food industry.”

This isn’t the first time Schneiderman has gone after Papa John’s franchisees. In October of last year, he sued some in New York for allegedly stealing wages from more than 400 delivery drivers, seeking more than $2 million in backpay, damages, and interest. Then in February he won a nearly $800,000 judgement against another who allegedly ripped off employees.

He’s also focused on wage theft prosecutions in the New York fast food industry generally. In March of last year, he won a $448,000 payout from 23 Domino’s Pizza franchise owners and a nearly $500,000 one from a McDonald’s franchisee.

Wage theft, where workers aren’t paid minimum wage and/or overtime, are made to work off the clock, or are made to buy uniforms or equipment out of their own paychecks, is particularly rampant in the fast food industry. One poll found that about 90 percent of these workers have experienced at least one form of theft. But it’s also not limited to fast food. In 2012, at least $933 million was won in backpay by the Department of Labor, state labor departments, state attorneys general, and research firms. That sum dwarfs the less than $350 million taken in all robberies that year. Even that understates the extent of the problem, however, since many employees don’t file formal charges; it’s estimated that the country’s employers steal more than $50 billion from their employees every year.

Some places have taken steps to go beyond federal wage and hour laws to try to crack down on wage theft. On Wednesday, Jersey City, New Jersey unanimously adopted a law that would revoke city licenses from any company that doesn’t reimburse workers for lost wages, a step that has been taken in other places across the country. Other cities have upped the penalties for wage theft and enhanced enforcement measures.

This blog was originally posted on Think Progress on July 16, 2015. Reprinted with permission.

About the Author: The author’s name is Bryce Covert. Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Permalink



Your Rights Job Survival The Issues Features Resources About This Blog