Outten & Golden: Empowering Employees in the Workplace

Archive for February, 2003

Friday, February 28th, 2003

Progress in Several States on Sexual Orientation Discrimination Laws

It was announced today that New Mexico may soon become the 14th state to make it illegal to discriminate on the basis of sexual orientation, and the third to have a law making gender identity discrimination illegal. See Human Rights Campaign press release.) A celebration is slightly premature, however, as the House and Senate must reconcile different versions of the bill (House Bill 314, Senate Bill 28) before the bill goes to the Governor, Democrat Bill Richardson, who has already pledged to sign it. The reconciliation of the two bills may take a few weeks, due to the backlog of other bills.

While things are moving a little more slowly in the state of Illinois, capital-watchers in that state also recently reported progress on sexual orientation legislation. See Sun-Times article.) Yesterday (Feb. 28), a Senate committee approved a sexual orientation discrimination ban, (Senate Bill 101), an addition to the Illinois Human Rights Act, by a vote of 8-4. In the past, similar bills have passed in the state House but failed in a Republican-controlled Senate. Now that the Democrats control the Senate, the bill is seen as possibly having a better chance, however, the bill’s ultimate prognosis remains unclear. Some Democrats from more rural areas who supported the bill in committee may end up voting against the bill on the Senate floor, and the bill’s cosponsor, Sen. Carol Ronen (D-Chicago) said she won’t call for a vote by the full Senate unless she has enough votes for it to pass. Newly-elected Illinois Governor Rod Blagojevich and new Senate President Emil Jones Jr., a Chicago Democrat, both support the plan. While the Illinois bill does not explicitly make it illegal to discriminate on the basis of gender identity, the bill’s definition of sexual orientation should encompass transgender discrimination, with the definition of sexual orientation including those “having or being perceived as having a gender-related self-identity, appearance, expression, or behavior, whether or not traditionally associated with the person’s designated sex at birth.” Several other states have also introduced anti-discrimination legislation this year. For an update on all pending state legislative efforts, see HRC’s What’s Happening in Your State page.)

For more information on existing discrimination laws in the states, see the Workplace Fairness sexual orientation and gender identity discrimination pages.

Thursday, February 27th, 2003

Is There Less Workplace Privacy These Days?

Workplace monitoring is on the rise, no doubt about it. According to an American Management Association survey, more than three-quarters of major companies now record and review employee communications and on-the-job activities. (See USA Today article.). And that’s just after you get a job–background investigations are also on the rise, as companies dealing with post-September 11 jitters have become increasingly wary about hiring the wrong people. (See Washington Post article). According to the results of a survey published by the Society of Human Resource Management, 52% of businesses have implemented increased security provisions since 9/11, and anecdotal comments suggest many companies have implemented this increased security through the use of more thorough background screenings. Another explanation for increased security measures is the faltering economy and the need for maximum workplace productivity.

Firms specializing in background screening and workplace security claim they’re receiving more business than they can handle. Database companies can quickly verify identities and check criminal records, driving histories and former addresses, as well as applicants’ credit records, education credentials and previous employment. Fees start at just a few dollars for the most basic reports, making it cost-effective from a business perspective. Some on-the-job monitoring that is becoming increasingly prevalent: hiring third parties to keep an eye on employee activity, with actors–introduced as the newest hires–as undercover agents monitoring employee behavior; camera and audio monitoring, made much less costly by new technology; and electronic surveillance which allows managers to record keystrokes, e-mail, online chats, instant messages and more.

But is all this surveillance really necessary? Doesn’t it raise privacy concerns? Yes, says Barry Steinhardt of the ACLU, who responds “They [the various forms of surveillance] all raise concerns from the privacy point of view. Our every action and utterance is being watched.” But given the dearth of laws protecting workplace privacy, in most instances, these types of surveillance are legal. (See National Workrights Institute issue page). That’s not likely to change, given employers’ heightened fears about security and productivity. So watch out, because the guy in the next cubicle might just be watching you.

Wednesday, February 26th, 2003

Union Membership Down; Is Interest in Joining Up?

Union leaders gathered in Hollywood, Florida for this week’s AFL-CIO winter executive council meeting were confronted with some bad news. Union membership has reached its lowest level in two decades, according to the U.S. Department of Labor (DOL). Some 13.2 percent of America’s work force belonged to unions in 2002, down from 13.4 percent in 2001, according to the report. The primary explanation for the decline is that manufacturing companies hemorrhaged traditional union jobs faster than organizers could build new membership in other areas. (See AP article.)

Union leaders responded to the bad news with their own poll: one that showed that over half of workers surveyed said that they would form a union tomorrow if given the chance. (See AFL-CIO press release.) Since employers often resist unionization efforts, also under discussion at this week’s meeting is a “comprehensive, union movement wide campaign to expose the immoral and illegal tactics employers use to thwart workers’ efforts to form unions.” This organizing effort will be known as the “National Rights at Work Committee,” and will attempt to counter difficulties workers in many industries have encountered when trying to form unions. (See NY Times article.)

Some critics of the labor movement claim that more needs to be done to stem the decline in union membership. Thomas Geoghegan comments in response: “The big challenge is whether these labor leaders can think outside the box to figure out a way to pull in people.” Geoghegan is a labor lawyer and author who frequently comments on unionization issues. A provocative article coauthored by Geoghegan and Barbara Ehrenreich recently appeared in The Nation magazine. Called Lighting Labor’s Fire, the article begins with the statement, “The collapse of union membership in America, from its peak at 38 percent in the mid-fifties to 9 percent of the private work force today, is the one big reason for our roaring inequality.” It is clear that union membership makes a difference in a workers’ wage: even the DOL report acknowledges that in 2002, full-time wage and salary workers who were union members had median usual weekly earnings of $740, compared with a median of $587 for wage and salary workers who were not represented by unions.

But can we wait for unionization to catch up with the economy, or for the Rights at Work Committee to take off? With little sign of economic improvement, union membership is going to continue to hemorrhage at an alarming rate. One solution proposed by Geoghegan and Ehrenreich is for unions to offer affiliate or individual memberships–a form of membership accessible to any worker, regardless of whether a union had successfully organized the workplace. Our sister organization, the National Employment Lawyers Association, is mentioned in the article as a possible co-collaborator in this effort, with the idea that people would join unions individually if it meant access to an employee rights attorney. It’s an interesting idea, which is sure to be discussed in the coming months, involving Workplace Fairness, NELA, and other organizations. It’s clear that something must be done if workers are to be able to stand up to their employers, and if unions aren’t the solution, then a new solution is needed.

Tuesday, February 25th, 2003

If College Students Can Do It, So Can You

What would you do to prevent being arbitrarily fired or laid off? How much time are you willing to spend to make sure that you, your family, and your friends don’t ever have to face being discriminated against? A day? an hour? half hour? ten minutes? A two-hour drive? a five-minute telephone call? I read today about some North Carolina college students, to whom a tuition hike means the difference between a full-time caseload and a part-time caseload, or choosing between classes and adequate meals, who have decided to take action. But instead of sit-ins and noisy protests, they have instead visited their legislators. See the article “Tuition hikes turn students into lobbyists.” These students aren’t experienced fat-cat lobbyists, or even kids with trust funds. In most cases, those lobbying are first-generation college students from poor and lower-middle-class families. They don’t have a lot of life (or lobbying) experience yet, and many have to dig pretty deep in their closets to find professional clothing. But they do know how important it is that higher education and grants for needy students be adequately funded, and despite their youth and inexperience, they’re taking their story to the politicians that matter. In a particularly effective PR ploy, students in New Mexico handed out packets of ramen noodles (the diet staple of poor college students) to legislators to hammer home the effect of budget cuts. Legislators can no longer make drastic cuts to university budgets before first staring in the face the victims of these cuts. And that can be very effective.

In the next several months, there will be a number of issues that will affect you personally as an employee, whether it’s a law under consideration in Washington or your state capital, the actions of a company CEO, or the appointment of a judge hostile to the rights of workers. (See Demand Fair Judges!) At this site and elsewhere, you will be asked to do something about these issues. We may need individuals who can tell their story to legislators. (Share Your Story) We may need you to write a letter or make a phone call, sometimes on very short notice. (Action Center) We may want you to tell your friends and coworkers and mobilize as many people as you can. (Tell-a-Friend)

When we ask you to do something, if your reaction tends to be “I can’t do that…lobbying is for those articulate politician types” or: “I’m too busy” then think again. Think of those college students who talked about eating grilled cheese sandwiches in order to pay their tuition bills, and who ironed their shirts and wore ties to speak with legislators who made the choices affecting their lives. Surely you can do as much (or even less in many cases–a letter takes 5 minutes or less) to preserve your livelihood, and to demand that you and your coworkers be treated fairly and with respect at work, right?

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Monday, February 24th, 2003

This Week in the Courts: Learn About Recent Decisions Here

Have you been looking for a place where you can find recent court decisions? Now you can look here to find the latest decisions from the U.S. Supreme Court and federal appellate courts around the country. The new site feature, This Week in the Courts, will be updated weekly, starting today, and will feature all reported cases dealing with employment, labor, and employee benefits issues. With one click, you will be able to see the latest cases happening around the country. And if you read a case today, then need to reference it a couple of months later, don’t worry. We plan on keeping cases around for at least several months, so come back later if you find you need the case you read about today. We also plan to soon add all cases going back to the beginning of 2003, so if you would like to review older cases, please revisit us soon.

This new site feature is found in our site’s new “News and Issues” area, which contains this page (Today’s Workplace), and our Today’s News Headlines, another recently implemented site feature which contains the latest news about new court decisions and workplace trends. We hope you find all of these new interactive features helpful as you try to stay on top of the latest developments that affect workplace fairness.

Friday, February 21st, 2003

Disabled Worker in California Benefits From Less Restrictive State Disability Discrimination Standards

Disabled workers in California won an important victory today as the California Supreme Court announced its decision in Colmenares v. Braemar Country Club. (See LA Times story.) At stake in Colmenares was whether the California law barring discrimination in jobs and housing protects people with conditions that limit their participation in a major activity. By contrast, federal law protects the disabled from discrimination on the job only if the condition substantially limits one or more major activities.

Francisco Colmenares filed the lawsuit when his employer, the Braemar Country Club, fired him after 25 years on the job. Colmenares had injured his back on the job in 1981, and the country club accommodated his injury by assigning him light duties and later promoting him to a foreman position that he could handle despite his back problems. Colmenares earned positive job evaluations as foreman until 1995, when a new supervisor gave him poor reviews and eventually reassigned him from golf course maintenance to supervising construction of a clubhouse, a job that required heavy labor. In 1997, Colmenares was fired for “deficiencies in his work performance.” Colmenares sued, charging he was fired because of his bad back. The country club countered that he had no disability under state law because his back injury did not “substantially” limit a major life activity.

This ruling is also important because it provides protection to workers who claimed disability discrimination prior to 2001, when a new law went into effect, making clear that California disability discrimination laws were to be interpreted more broadly than the federal Americans with Disabilities Act. Colmenares’ employer, like many other employers in pending lawsuits, argued that prior to 2001, that California law should be interpreted the same way as federal law, which would have made it very difficult for Colmenares and many other disabled plaintiffs to proceed with their disability discrimination lawsuits. However, the California Supreme Court made clear in its ruling today that even prior to 2001, California antidiscrimination law should be interpreted more broadly than federal law, which helps not only Colmenares, but anyone affected by the 2001 change in the law. The federal “substantially limit” standard has been used to defeat innumerable disability claims, putting many disabled workers in the double bind of being either “too disabled” to qualify for the law’s protection (not qualified to perform the essential functions or duties of a job), or “not disabled enough” under the “substantially limit” standard. (For more information about disability discrimination law, see the Workplace Fairness web site page on disability discrimination.)

While this decision does not directly affect workers in other states covered by either federal or state disability discrimination laws, it does demonstrate the importance of efforts to pass state laws which are expressly written to overcome some of the limitations of the federal ADA. And whether or not Mr. Colmenares ultimately wins his case (the country club claims that he is not disabled at all, even under the new standard), thousands of disabled workers in California are likely to benefit from the less restrictive California standards interpreted by the California Supreme Court today.

Thursday, February 20th, 2003

Diverse Set of Affirmative Action Allies File in Supreme Court Case

What do Microsoft, Gen. Norman Schwarzkopf, the American Psychological Association, Hillary Rodham Clinton, and Nike, Inc. all have in common? They are some of the most recognizable names that support affirmative action programs and have filed briefs before the U.S. Supreme Court in one of the most significant affirmative action battles before the Court in years. While the final filing deadline was Wednesday (2/19) at midnight (a deadline delayed by inclement weather in Washington, DC, which caused the Court to be closed on Tuesday), and thus the final tally of briefs filed is not yet complete, experts expect as many as 60 briefs to be filed in support of the University of Michigan’s affirmative action program.

One commentator calls the list of brief filers “a who’s who in many fields – an unlikely combination of doctors, politicians, social workers, and makers of cereal, ships, tennis shoes, prescription drugs, shampoo, soft drinks and other products.” (See AP article.) The military brief was signed by a very notable list of more than two dozen top retired military officers (a group hardly known for their support of liberal policies), including Schwarzkopf, the commander in the Persian Gulf War; Adm. William J. Crowe Jr., Gen. Hugh Shelton and Gen. John M. Shalikashvili, all former chairmen of the Joint Chiefs of Staff; Gen. Anthony C. Zinni, former head of the U.S. Central Command, and former Defense Secretaries William J. Perry and William S. Cohen. The military officials signing the brief support continuation of affirmative action programs because service academies and ROTC programs need affirmative action to maintain a highly diversified officer corps. Former Army undersecretary Joseph R. Reeder, announcing the legal action, said “It is absolutely essential to our fighting force,” Reeder said. “You can’t get there yet without taking race into consideration.” (See AP article.)

Another relatively surprising group of brief signers includes more than 30 major U.S. companies, most among the most recognizable corporations in the world, including Microsoft Corp., General Motors Corp., 3M, Abbott Laboratories, Bank One, Boeing Co., Coca-Cola, Intel, Johnson & Johnson, Pfizer, Sara Lee, Pepsi, Nike, Reebok, American Airlines, United Airlines, ChevronTexaco, Shell Oil, Northrop Grumman, Pfizer, Eli Lilly, Schering-Plough, General Mills, and the Kellogg Co. (See Reuters article.) Like the military cosigners, these companies are attempting to preserve the diversity of the workforce. A Microsoft representative argued that “By upholding the university’s ability to include race and other factors in the admissions process, the courts will preserve Microsoft’s ability — and that of other companies — to recruit the diverse work force necessary for success in today’s global marketplace.” Notable among the signatories to the corporate brief are the number of high tech companies involved: Hewlett-Packard, IBM, as well as Intel, and Microsoft, as technology companies have been more reluctant than those in other industries to join the political fray. (See Business 2.0 article.) However, these companies noted that in order to compete in a global business environment, organizations need to build diverse workplaces.

It may come as less of a surprise that numerous politicians have weighed in. One brief was signed by a group of Democratic senators, including presidential hopefuls John Edwards and John Kerry, Minority Leader Tom Daschle, and Hillary Rodham Clinton and Ted Kennedy, while a separate brief was filed Wednesday by 60 members of Congress. (See Reuters article.) The Supreme Court will hear arguments in the Michigan case on April 1, with a ruling expected before the Court adjourns at the end of June.

Wednesday, February 19th, 2003

Gender Pay Gap Narrowest on Record

We’ve all been hearing for years about the gender gap when it comes to salaries, and how over the last couple of decades, very little progress has been made in closing that gap. Finally there’s some good news, however, according to the latest release from the Bureau of Labor Statistics(BLS). (See NY Times article). The remaining bad news: women’s pay still lags men’s in virtually every sector of the economy. However, full-time female workers made 77.5 percent of what their male counterparts did last year, according to BLS. In the previous eight years, the inequality worsened slightly, to 76 percent in 2001 from 77.1 percent in 1993.

Some of the reasons for the slight turnaround: Women have benefited from an acceleration in the economy’s shift toward the services sector during the last two years of economic weakness. Millions of women work in government and health care, two of the only sections of the economy that have added workers since 2001, while men dominate industries like manufacturing and technology that have been hit hard by layoffs and pay cuts. Additionally, a recent rise in the number of women who belong to unions, even as the total number of unionized workers continues to fall, may also be helping them receive salary increases. Closing the gender gap also has helped the stagnant economy: while men’s wages have failed to keep up with even the low rate of inflation, women’s earnings have continued to grow, giving an important lift to many families and helping sustain consumer spending.

It’s premature to conclude that based on one year’s data, that the wage gap will continue to narrow, but it’s encouraging news, nonetheless. Some additional resources on the gender gap include the National Committee on Pay Equity, which sponsors the national observance of Equal Pay Day to raise awareness about unfair pay in America (This year’s Equal Pay Day will occur on Tuesday, April 15.), and the Economic Policy Institute, a nonprofit, nonpartisan think tank that seeks to broaden the public debate about strategies to achieve a prosperous and fair economy.

Tuesday, February 18th, 2003

Today’s News Headlines: Stay on Top of the Latest Workplace Developments

Can’t keep track of all the various news articles and Internet stories out there about employment law and workplace issues? Let us do it for you! Just added to the Workplace Fairness web site is the feature “Today’s News Headlines.” Each day, as we learn of news articles that may be of interest to our readers, we will compile them here. Our “Today’s News Headline” page will contain all of the information you need, plus a direct link to each article listed. Don’t delay reading the articles you’re most interested in, as some news sources delete their articles after just a few days, or require that you pay to access older articles in their archives–this will help you find articles before they go away. If you see an article of interest that we don’t have listed, please e-mail us and let us know, and we’ll post it right away so that others can benefit.

And if you like (or don’t like) what you read, you can use our site’s new Action Center to contact the media. Our action center makes it simple to instantly fire off that letter to the editor you’ve been meaning to write, or to compliment the reporter who provided fair and unbiased coverage of an important issue, so no excuses allowed. We hope that this feature will help make it easier for you to to be better informed on workplace issues, and will help promote more and better coverage of key employment issues.

Friday, February 14th, 2003

Finding Love…At Work?

On a day when love is in the air, it’s appropriate to take a look at what’s happening to singles looking for love in today’s workplace. According to the American Management Association, 30% of workers say they have dated at the office. And 44% have married someone they dated at work. (See AMA’s 2003 Survey on Workplace Dating.) According to one worker who later married her boss, “Old rules are vanishing…[w]orking with your partner is a wonderful way to get to know aspects of his personality.” (See USA Today article.) Management attitudes about employees who date seems to be slowly evolving as well as younger employees become managers: according to the AMA survey, nearly 70% of managers in their 30s and 40s say it’s OK for employees to date, compared to 66% of managers in their 50s and 60s who find it acceptable for employees to date. Some companies do ban office dating or dating between a supervisor and subordinate. A few companies even ask couples to sign contracts stating that the relationship is consensual, to minimize the risk of sexual harassment lawsuits. Some of the reasons for the rise in workplace dating: More women have joined the labor force, which means male and female co-workers come into closer contact than ever before, and workers are putting in longer hours and getting to know one another on a more intimate basis. These trends are likely to continue, making it increasingly likely that the partner of your dreams might just be in the next cubicle.

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