Outten & Golden: Empowering Employees in the Workplace

Archive for February, 2003

Thursday, February 13th, 2003

Judges, Judges, Judges! Act Now, Before the Senate Does

In another wild and wacky day in our nation’s Capitol, one topic other than war and the budget on the Senate’s agenda was federal judicial nominations, and what to do with no less than five different nominees to the federal appellate courts. The nominee furthest along in the process, Miguel Estrada, nominated to the DC Circuit Court of Appeals, saw lots of talk and no action today, as Senate Democrats continued their filibustering efforts to prevent a vote before Estrada answers key unanswered questions about his judicial philosophy. (See NY Times article. Free registration required.) Four additional nominees, Jeffrey Sutton, Deborah Cook, John Roberts, and Jay Bybee, were all set to appear before the Senate Judiciary Committee for a vote. Bybee, a 9th Circuit Court of Appeals nominee whose vote had not been previously scheduled (any Senator may invoke a one-week delay the first time a nominee is scheduled), was held over until the next meeting of the Judiciary Committee, which may or may not be next week. (The Senate was supposed to be in recess next week, but the Estrada filibuster could prevent that from happening.) The votes on Cook (6th Circuit) and Roberts (DC Circuit) were held over until the next committee meeting after an obscure rule preventing votes from taking place more than two hours after the beginning of the Senate day was invoked. Neither Cook nor Roberts had the opportunity for much questioning at their January 29th Judiciary Committee hearing, which lasted over twelve hours and mostly focused on the record of 6th Circuit nominee Jeffrey Sutton, and so Democrats asked for more time and information before a vote took place. Sutton’s nomination is the only one which saw a vote today, as he was approved by the committee on a 11-8 vote, with Sen. Feinstein (D-CA) crossing party lines to vote in support of the Sutton nomination. (See Washington Post article). Activists vowed to carry on the fight against Sutton’s nomination to the Senate floor (See Alliance for Justice press release); Senator Feinstein, in particular, is likely to be subjected to a great deal of pressure to change her vote and oppose Sutton.

With all of today’s action on judges, it’s a perfect opportunity to introduce our site’s new Workplace Fairness Action Center. You now can make your voice heard immediately on the issues workers care about most, in five minutes or less. Here you can find your elected officials and email them on workplace issues or any other issues that are important to you. This is also the place where you can learn more about current issues and legislation and look up media contacts in your local area. We already have a number of alerts focused on many of today’s judicial nominees, so we invite you to take action now!

Wednesday, February 12th, 2003

Workplace Bullies Hurt the Bottom Line

Most of us have been in a situation where we’ve been forced to deal with a bully at work: a co-worker or supervisor who engages in hostile verbal or nonverbal communication, interfering actions, or withholding of resources–time, information, training, support, equipment–that guarantee failure. You may have found that there’s not too much that can be done about it, especially where the employer condones the bullying behavior as part of a “get-tough” management style. You might be interested to learn, however, that current research shows that bullying results in losses of hundreds of millions of dollars a year in terms of absenteeism, employee satisfaction, customer satisfaction, product quality and productivity. (See Cincinnati Enquirer article). That’s exactly the kind of message employers should listen to, when other attempts to rein bullies have proven unsuccessful. Some employers may be listening, according to one expert. “I think as the economy has turned down, companies want to improve employee satisfaction in ways that don’t have to do with money,” says Gregg Campa, director of client relations with the Business Research Lab in Houston. Yet another expert is skeptical, however. Kurt Landgraf, president of Educational Testing Service in Princeton, N.J., and former chief executive of DuPont Pharmaceuticals, says “I think most organizations all talk about how much they care. But the real fact of the matter is, the corporate culture is so accepting of these kinds of aggressive actions, it’s not going to go away.” Bullying may be more prevalent in workplaces that have competitive reward structures – where managers compete for promotions, salaries, benefits, recognition and office space – which tends to promote more political behavior and abuse. Another previous study on workplace bullying and gender has found that half of all bullies are women, and that women bullies target women 84% of the time, while men bullies target women 69% of the time, making women the majority of targets in the workplace. A good resource for those who have been victimized by workplace bullying is the Workplace Bullying & Trauma Institute. The Institute is led by Drs. Gary and Ruth Namie, founders of the Campaign Against Workplace Bullying and authors of “The Bully At Work: What You Can Do to Stop the Hurt and Reclaim Your Dignity On the Job” The Institute’s website, www.bullyinginstitute.org, has a number of articles, surveys, and good advice for those encountering a bully at work, and discusses current efforts to pass an anti-bullying statute in California. This proposed law, if passed, would be the first of its kind in the U.S. or Canada–a trend we would like to see continue.

Tuesday, February 11th, 2003

Surfing at Work, Working at Home: Who Wins?

One major concern that employers have expressed about employees’ internet access at work is that employees will spend too much time conducting personal business or surfing the web, rather than fulfilling work responsibilities. However, a new study suggests that employers have little to fear, as employees who spend time on the Net at work on personal matters more than make up the time at home. (See NY Times article. Free registration required.). In the annual National Technology Readiness Survey (NTRS) conducted by the Center for e-Service at the University of Maryland’s Robert H. Smith School of Business, researchers found that workers with Internet access at both home and work spent an average of 3.7 hours per week engaged in personal online activities while at the job, but also spend an average of 5.9 hours per week online at home for work-related purposes. A total of 73% of workers spend as much or more time using the Internet at home for work purposes than at work for personal reasons, while only 27% spend more time on personal pursuits than they give back at work. According to the Center’s Director, Roland Rust, the survey results suggest that “Businesses often clamp down on personal use of the Internet at work, citing concerns about productivity, but this study indicates workers more than make up for it at home…The survey suggests companies should accept some personal use of the Internet at work as not only inevitable, but as positive to the organization.” Some of the reasons that employees with home access still conduct personal business at work: the workplace offers more desirable infrastructure such as high-speed connections and is likely to already be on, rather than requiring the effort of booting up; and the growth in e-services creates new reasons to go online that might be conducted during the workday. Employees are more likely to engage in work while at home for some of the following reasons: computers give workers newfound freedom. For example, a person can now leave the job early enough to have dinner with the family, and finish up business on the Internet afterwards. This might include checking email, conducting research, ordering travel or purchasing things for work. Workers may also telecommute, and telecommuting may be spontaneous or temporary, such as staying at home in the morning to catch up without distractions. The results of this study suggest that employers need not be so concerned with worker productivity that they devise restrictive policies on personal Internet usage in the workplace, as restricting Internet usage at work may have the opposite effect of discouraging an employee’s work-related internet use at home, which is more likely to benefit the employer in the long run.

Monday, February 10th, 2003

Wal-Mart: World’s Biggest Employer, and Possibly World’s Worst?

Almost every day now, it seems, we learn a little bit more about the labor and employment policies of Wal-Mart. And it’s hardly ever good news. As recently reported in USA Today, “[n]ever before has the retail empire, founded in 1962, come under such blistering attack [for the way it treats its employees.]” (See USA Today article.) Currently facing Wal-Mart may be the largest sex discrimination case ever, a class action case filed in California on behalf of female employees claiming that Wal-Mart discriminates against women in promotions, jobs assignments, training, and pay throughout the United States. (See Wal-Mart Class website.) This case just received a critical boost when two studies by experts studying Wal-Mart’s pay structure found statistically significant evidence of pay discrimination. (See LA Times article. (Free registration required.)) One study, conducted by Oakland-based expert Richard Drogin, found that female workers at Wal-Mart earned 4.5% to 5.6% less than men doing similar jobs and with similar experience levels between 1996 and 2001 and that among nonsalaried workers, men earned an average of 37 cents an hour more for similar work. The study also found that the pay gap widens higher up the management ladder, with male management trainees making an average of $23,175 a year, compared with $22,371 for women trainees. The second study, a management analysis by Washington, DC-based economist Mark Bendick, Jr., determined that 20 comparable retailers employed a greater average percentage of women in 1975 — 41.6% — than Wal-Mart did more than 20 years later. Today, women make up an average of 56.6% of the management positions at those competitors, the report said. The study found that women were underrepresented in management in Wal-Mart in 49 states, with the greatest gender gaps found at Wal-Mart stores in Texas, Florida and California. (Copies of both studies are available at the Wal-Mart Class website.) Another class action lawsuit claims that Wal-Mart routinely underpays its hourly employees by forcing them to clock out and continue working beyond the end of their paid shifts, and locks the doors of the store to prevent any employees from leaving before the work is all completed. (See Wal-Mart Employment Practices Class Action information.) In a similar case in Oregon, a federal jury in December 2002, found Wal-Mart Stores guilty of forcing its employees to work overtime without pay from 1994-1999. After deliberating for four days, the jury issued its unanimous verdict that Wal-Mart violated federal and state wage-and-hour laws in requiring employees to work “off the clock.” (See Federal Jury Finds Wal – Mart Guilty in Oregon Overtime Pay Case.) Union groups have long had a beef with the nation’s largest retailer, which has historically resisted all of its workers’ attempts to unionize, for its anti-union activities. The United Food & Commercial Workers Union (UFCW) maintains on its website a number of charges against Wal-Mart, including most recently, information about two new National Labor Relations Board (NLRB) complaints for its illegal campaign of intimidation, harassment and retaliation against workers attempting to organize with UFCW in Las Vegas, Nevada, and Noblesville, Indiana. Some of Wal-Mart’s actions under dispute in those cases include allegations that Wal-Mart managers: told associates their union activities were being monitored; asked associates to spy on co-workers on behalf of the company; refused to allow distribution of union literature and confiscated materials from employees; threatened workers who accepted union literature; threatened workers with reprisals including loss of profit sharing due to union activity; and attempted to buy-off workers with increased hours, promises, and tokens in order to discourage support for the union. (See UFCW press release.) According to the UFCW, there are a total number of 45 National Labor Relations Board complaints against Wal-Mart in 25 states. Wal-Mart has been found guilty in 10 of those cases, settled 8 of them and the rest are pending. For further information about some of the ongoing battles against Wal-Mart on behalf of workers, see some of the following websites:

Wal-Mart Watch

WAL-MARTyrs.com

Wal-Mart Litigation Project

Friday, February 7th, 2003

EEOC Filings Up, But Has Workplace Discrimination Increased?

The Equal Employment Opportunity Commission (EEOC) has just announced its charge filing and litigation statistics for Fiscal Year 2002, and charge filings are decidedly on the upswing. The EEOC reports that from September 2001 to September 2002, charge filings, the first step in bringing a claim of discrimination, increased 4.5 percent, reaching their highest levels in seven years. (See Findlaw article.) Certain types of discrimination complaints saw fairly dramatic increases: religious discrimination (up 21%), age bias (14.5%), and national origin discrimination (up 13%). EEOC Chairwoman Cari M. Dominguez attributes the rise in charge filings to the poor economy, an aging and multinational work force and backlash from the 2001 terrorist attacks. She especially notes the rise in age discrimination filings, remarking that this issue “continues to be troublesome for us, because with baby boomers getting into the 50-plus category, it’s cause for concern that employers have not yet gotten their arms around this issue.” Of the 84,442 charges filed during the 2002 fiscal year (up from 80,840 the previous year), the largest number of charges continue to be filed in the areas of race discrimination, sex/gender discrimination, and retaliation. So will the number of charge filings continue to increase? Certainly, the fewer options workers have to find new jobs comparable to the ones that they have lost generally means that they are more likely to take a closer look at the circumstances surrounding their termination, rather than just moving on to something better. They may also have more time, energy, and motivation to challenge discrimination if their efforts to find comparable employment have been unsuccessful. And the more older workers there are that grew up in the 60s and 70s, knowing about their rights and prepared to fight for them, then the more likely it is age discrimination cases will continue to increase. We’ve all heard of various post-9/11 incidences of religious and national origin discrimination, involving workers of Middle Eastern descent and/or the Muslim faith, and sometimes even turban-wearing Sikhs, who have been wrongly treated as if they were in close alliance with terrorists. Hopefully, those claims will soon start to subside as our nation starts to heal from this tragedy and gain more tolerance and understanding of those of different faiths and cultures. However, it will be interesting to see whether the economy continues to contribute to a high number of claims until we’ve had a full economic recovery.

Thursday, February 6th, 2003

Substituting Lower Paying Jobs for Higher Paying Jobs

Many employees, if asked, would say that an employer cannot just reduce your salary, or lay off a group of higher-paid employees in order to create new jobs at a lower pay scale. In most cases, however, they would be wrong. It’s a perfectly legal practice — and it may be on the rise. Circuit City announced yesterday that it would lay off 1,800 members of its sales staff. (See Sacramento Business Journal story.) That’s not really big news, however: in this day and age, layoffs are everywhere, and Circuit City’s sales and earnings are down, especially when compared to chief competitor Best Buy. What IS news is that Circuit City is converting all of its sales staff positions to lower-paying hourly jobs, instead of a commission-based structure, and not rehiring its laid-off sales staff. Here’s how the numbers stack up: Approximately 3,900 sales counselor positions will not be converted to the hourly jobs and will be eligible for a severance package. However, the company expects to have only 1,800 total fewer sales workers, which means that stores will have to hire replacement workers to cover more than half of the open positions. If the Circuit City workforce were unionized, we might call those workers “scabs.” But it’s not, so the 3,900 laid-off sales counselors have no leverage to protest the elimination of their jobs. Circuit City is no stranger to anti-employee practices–for years, it fought to defend its mandatory arbitration program, which prevented employees who had been discriminated against from having their day in court, until it finally prevailed before the U.S. Supreme Court in Circuit City v. Adams. It may be able to get away with firing its higher-paid workers and replacing them with lower-paid workers as well, as more and more employers seek to reduce their labor costs and take advantage of the much larger pool of available workers. Has this happened to you? or are you aware of other companies that are doing the same thing? We would like to hear from you whether this is becoming a widespread practice, so please e-mail us and let us know what you think about this.

Thursday, February 6th, 2003

Businesses Want to Toughen the Family & Medical Leave Act

Say you have the flu. Say you have the flu really badly (not just the 24-hour variety), so badly that you end up going to your doctor for relief. Say it’s so bad that you end up missing more than three days of work. Should you be fired? Some business groups seem to think that you should. As noted in Monday’s entry, the Labor Department (DOL) is expected to propose changes to the Family and Medical Leave Act (FMLA) very soon. And if business groups have their way, your flu bout might no longer qualify as a “serious health condition,” and you might no longer have the ability to take unpaid FMLA leave without worrying about being fired. (Interestingly enough and surely no coincidence, the FMLA was enacted 10 years ago yesterday, and the DOL home page is today featuring a special “Know Your Rights” section on the FMLA. Labor Secretary Elaine Chao is quoted as saying “Perhaps now more than ever, when balancing work and home life is increasingly difficult, it is vitally important for employees and employers to understand their rights and obligations under the law.”) What’s causing all the outrage? In a 1996 ruling, the Labor Department ruled that the common cold, flu, earaches, headaches and other routine ailments all can qualify as “serious health conditions” — IF you are out for more than three days and are receiving treatment from a medical provider, such as antibiotics for the flu. Business groups whine that this interpretation has created a serious burden. (See Washington Post article.) One company official was anonymously quoted as saying “People use this as a way to get additional sick leave without any repercussions.” How about the repercussion of not getting paid if your sick leave has been exhausted, or as is the case in many workplaces, you don’t have any at all? Or having to pay to see a doctor for a cold or the flu just to verify that your condition is serious enough that you shouldn’t be at work infecting your coworkers? Should we fear that an employee’s “serious health condition” is going to be completely eradicated from the list of circumstances where workers are protected under the FMLA? We’ll see in March, when the proposed changes are expected to be released. (For more FMLA information, see the Workplace Fairness FMLA page.)

Tuesday, February 4th, 2003

New Developments at the EEOC for Disabled Employees

The Equal Employment Opportunity Commission (EEOC), the government agency that handles claims of discrimination on the basis of race, color, sex, national origin, religion, age, and disability, recently issued two important announcements related to disability discrimination. Last week, the agency announced that it had reached its largest settlement ever in a case against the California Public Employee Retirement System (CalPERS) on behalf of public safety officers who were disabled in the line of duty. (See EEOC press release and Mercury News story.) CalPERS’ formula for calculating industrial disability retirement (IDR) benefits reduced the total percentage of benefits according to an employee’s number of years over age 30 when hired, so that the older an employee was when hired, the less the employee received if he or she became disabled. Therefore the plaintiff, Ronald Arnett, who joined the Fremont, California police force at age 43, received only 32% of his salary for his IDR benefit when he suffered permanently disabling injuries after five years of service, while if he had been hired at age 30, he would have received 50% of his pay. Arnett and other affected officers filed suit in 1995, claiming that the policy violated the Age Discrimination in Employment Act. However, the case suffered a setback in 2000, when the U.S. Supreme Court, in the case of Kimel v. Florida Bd. of Regents, ruled that private plaintiffs could not recover monetary damages from state governments for age bias. Following the Kimel case, the EEOC chose to intervene in the officers’ case, since the agency still was able to file suits against state employers and to recover monetary damages. While the settlement only directly affects the 1,700+ retired public safety officers, it is still significant because of the EEOC’s intervention, demonstrating that the agency is willing to intervene on behalf of public employees who cannot sue state employers themselves.

The EEOC also released on Tuesday a new fact sheet about telework (telecommuting) programs, and how employers may use these programs as an accommodation for disabled employees. (See EEOC press release.) The fact sheet, issued on the two-year anniversary of the President’s New Freedom Initiative, is designed to promote telework as a key strategy for increasing the employment of people with disabilities. While telework had previously been identified as one means of reasonably accommodating a disabled employee, see EEOC Guidance, the fact sheet further explores and explains ways this specific accommodation option can work to benefit both employees and employers. For example, an employer who does not currently have a telework program may be required to allow a disabled employee to work from home, while an employer who already has established such a program may need to waive eligibility requirements (such as one year of tenure) to accommodate employees with disabilities. While an employer is not required to establish a program or allow a particular employee to participate if the job is not conducive to telework (because, for example, it requires frequent face-to-face contact with coworkers or clients), employers must determine whether some or all of the job’s essential functions can be performed at home, and are encouraged to reassign marginal job functions, and use telephone and e-mail to lessen the need for a disabled worker’s full-time presence in the office. While this fact sheet does not change existing law or the EEOC’s previous guidance on this subject, it does make clear that telework is here to stay, and that telecommuting’s increasing feasibility and use make it a viable option for accommodating employees with disabilities who cannot be in the traditional office setting for an entire work day or workweek.

Monday, February 3rd, 2003

Labor Department to Change Several Labor Law Regulations

Changes to overtime calculations, job training program funding, and the Family Medical Leave Act (FMLA) are all in the works as the Bush Administration’s Labor Department (DOL) listens primarily to the concerns of businesses instead of workers and moves to change several decades-old employment regulations. (See AP story.) Most people are surprised to find out that there is no legal limit to the amount of overtime an employee can be asked to work in most circumstances (your state law or union contract may limit overtime, but overtime is not limited under federal law). The only disincentive that exists to prevent employers from requiring employees to work limitless amounts of overtime is the requirement that employees who work more than 40 hours in a workweek be paid time-and-a-half. (See DOL Overtime Pay page.) Proposed changes, however, will make many more employees exempt from overtime pay requirements. While it is clear that the laws determining who is exempt from overtime have become outdated and overly complicated and confusing, the solution is not to make fewer employees eligible to earn overtime. One bright spot (and perhaps the only one) in the proposed regulations is that the lowest monetary threshhold for who is exempt from overtime pay will be increased, so that more lower-wage workers will potentially be eligible for overtime pay. Other changes appear to be in the works regarding the Family & Medical Leave Act. In the story cited above, it appears that employers want leave for the birth or adoption of a child to be eliminated from the FMLA, as well as some weakening of the intermittent leave provisions. (For more FMLA information, see the Workplace Fairness FMLA page.) It appears the so-called “family-friendly” policies of this Administration will only extend so far, if the rumored changes, expected to be made available for public comment in March, actually take place. Stay tuned for more on this topic.

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