Outten & Golden: Empowering Employees in the Workplace

Archive for March, 2003

She's BAAAACK! Priscilla Owen Before the Senate Judiciary Committee. Again.

Thursday, March 13th, 2003

Last year, when the Democrats held a 10-9 majority on the Senate Judiciary Committee, the Judiciary Committee voted to approve exactly one hundred judicial nominees, including 17 circuit court nominees. (See Sen. Leahy’s floor speech (from the former chair of the Judiciary Committee).) Many of these nominations were controversial, but nonetheless passed through the committee for votes on the Senate floor. Only two nominees didn’t make it, due to the extremity of their prior records. One of those nominees was Priscilla Owen. Now that the Republicans command a majority in the Senate and on the Judiciary Committee, guess who’s back under consideration? That’s right, a nominee that last year’s incarnation of the committee already found to be the worst of the worst.

This time, she says she’ll judge fairly. (See today’s AP article.) I suppose her 9-year history of doing otherwise shouldn’t count. Politics is politics, I suppose, but the committee said in essence back in September: we’ll approve many of the President’s nominees, but we won’t approve this one. Even though the nominees have to agree to follow stare decisis, that doesn’t bind the people voting on them at all, I guess.

Why is Priscilla Owen’s nomination such a bad idea? Because Owen’s record shows that she sides with corporate interests and is an opponent of employees’ rights. Anchoring the far-right end of a very conservative court, Owen consistently favors big business and special interests over the claims of ordinary Americans. Before joining the court, Owen primarily represented large corporations, as a partner at a Houston law firm. On the Texas Supreme Court, she has tended to distort or rewrite the law to reach her desired outcome, voting consistently to dismiss the claims of injured workers and consumers. (See NELA’s Case Analysis, prepared last year, for examples of some of the points raised below, and the Alliance for Justice’s judicial website, IndependentJudiciary.com for more information on Owen’s record).

Justice Owen distorts the law to condone workplace bigotry.

In several cases, Justice Owen has dissented from Texas Supreme Court rulings affecting the rights of employees, including the right to be free from discrimination. In one case, Owen’s interpretation of a key Texas civil rights law would have effectively rewritten part of that law and made it much more difficult for employees to prove discrimination. In another employment case, the majority explained that Owen’s dissent “defie[d] the Legislature’s clear and express limits on our jurisdiction.”

Justice Owen consistently votes against access to the courts and jury decisions supporting workers and individual plaintiffs.

Many of Justice Owen’s dissents would have seriously impaired ordinary citizens’ ability to access the courts and to obtain justice, and often are dismissive of juries and of jury findings. In one example, Owen’s dissenting position was criticized by other justices as an attempted “judicial sleight-of-hand to circumvent” the Texas Constitution’s protection of jury trial rights. She also voted to reverse a $2.5 million judgment for a man who was killed while working along an interstate highway, by disregarding the testimony of the company’s own managers about the extreme safety hazards and the company’s failure to comply with state safety guidelines, and instead concluding there was no evidence of a “likelihood of serious injury.”

Justice Owen protects employers by deliberately ignoring the big picture.

To further justify decisions shielding corporations, she separates allegations to analyze without context. Separating allegations, she finds each insufficient. For example, in a harassment case involving a male supervisor who bullied female employees by charging them like a bull, screaming profanities, forcing them to do menial cleaning chores and making them stand in his office while he leered at them, she found the evidence insufficient, viewing the allegations individually rather than part of a collective pattern of harassment.

Justice Owen’s delay in writing opinions has caused extreme harm to parties before her court.

She delayed for over two years a ruling concerning a quadriplegic teenager who had been awarded $40 million in damages in his case against Ford Motor Company, leaving his destitute family unable to provide the specialized medical care he desperately needed. Her own colleagues were embarrassed by and apologized for the inexcusable delay. She eventually ruled on grounds neither briefed nor argued by any of the parties. While the case was pending, the plaintiff died for lack of nursing care which the family could not afford.

Justice Owen is outside the mainstream on her own conservative court.

She votes consistently to the far right of her colleagues (all Republicans) on the conservative Texas Supreme Court. She commonly dissents from their majority opinions to pursue a very narrow right-wing agenda. On one occasion, her colleagues said of Justice Owen’s dissent that it was “nothing more than inflammatory rhetoric and thus merits no response.”

Justice Owen votes in favor of her campaign contributors.

Owen is almost legendary in her home state for ruling in favor of corporate contributors to her judicial re-election campaigns, voting for contributors over 80% of the time. After receiving an $8,600 contribution from Enron, Justice Owen wrote an opinion that saved Enron a significant amount in school taxes. After receiving a defense firm’s $14,000 campaign contribution, Owen voted that the woman couldn’t sue the law firm who she claimed gave her bad legal advice in a criminal case that landed her in jail. According to Owen, the woman had no standing to sue because she was a convicted felon, although the the basis of the lawsuit was whether she should have received a felony conviction.

After reading this, if you aren’t convinced that Priscilla Owen’s nomination should have continued to remain DOA, then there’s not much more I can say. But if you’re now angry that we again have to waste valuable time and energy fighting this nomination, then take action now at WF’s Action Center. The Senate Judiciary Committee previously got it right last September when they rejected her nomination. Senate politics may have changed, but Justice Owen’s record hasn’t.

Demand Fair Judges: Stop Priscilla Owen

Don't Just Litigate, Do Something!

Wednesday, March 12th, 2003

Elsewhere in the Workplace Fairness web site, you will learn a great deal about what is required to litigate a case: where to file, how to find a lawyer, what agency to file with–all the kinds of information you need to fight back in court or before a government agency. Today, though, I’d like to shine a little spotlight on those people for whom litigation isn’t enough. These folks aren’t just leaving it all in the hands of their lawyers–they recognize that it’s not just the court who will determine their fate. Most recently, I read about Patricia Garrett traveling to Washington to oppose 6th Circuit judicial nominee Jeffrey Sutton. (See Birmingham News story.) Ms. Garrett is a registered nurse who was director of neonatal nursing at the University of Alabama in Birmingham Hospital. In 1994, Ms. Garrett was diagnosed with breast cancer and subsequently underwent treatments which required her to take substantial leave from work. Upon returning to work in July 1995, Ms. Garrett’s supervisor informed Garrett that she would have to give up her director position, which required her to accept another, lower paying position as a nurse manager. Ms. Garrett challenged her demotion under the Americans with Disabilities Act, and her case, Board of Trustees of the University of Alabama v. Garrett, went all the way to the U.S. Supreme Court. She ultimately lost before the Supreme Court, which ruled that she could not bring her ADA case against a state entity without violating the 11th Amendment of the Constitution–a case argued for the other side by none other than Jeffrey Sutton. At Thursday’s press conference, Ms. Garrett reminded the crowd that “Jeffrey Sutton has been an outspoken advocate for elevating the rights of states above the rights of people with disabilities. In Mr. Sutton’s eyes, I and others with disabilities seem to be pawns in a game of power between the federal government and the states.” This is also not the first time that Ms. Garrett has spoken out about her experience; in October I attended the “National Strategy Conference to Stop the Supreme Court’s Rollback of Civil Rights,” where Ms. Garrett’s eloquent message reminded the crowd of the need to keep advocating for her and others like her who have lost their jobs due to discrimination.

Twice last summer I had the opportunity to work with a very powerful group of women who had been fighting discrimination against them for over a quarter of a century. The large group of female plaintiffs (approximately 1100) in the case of Hartman v. Powell had been battling the U.S. Information Agency (USIA) since 1974. In 2000, a classwide settlement was reached to compensate each of the class members for the sex discrimination that kept them from being given jobs as foreign language broadcasters, writers, editors and technicians at USIA. Their decades-long battle wasn’t over, however, as each woman realized the effect of our tax laws which would excessively penalize their lump sum back wage awards. (See my Monday (3/10) post for more on this issue). This group of very articulate and passionate women then took their campaign to Capitol Hill, lobbying for the Civil Rights Tax Relief Act. (See story about their lobbying efforts). While the bill didn’t pass last year, much of the progress that has been achieved thus far in terms of awareness of this issue and bill cosponsors is due to their persistent efforts.

All of these women provide a great example for those who have encountered discrimination. It’s not just about a lawsuit against an employer, but about the entire justice system, which requires vigilance on all fronts.

Pension Reform: Can Lawmakers Live with the Results?

Tuesday, March 11th, 2003

Here’s a fairly novel idea (unfortunately) that really should be tried more often in policy debates. Let’s call it the “how do you like them apples!” or the “good enough for the gander” approach. Take some controversial new policy proposal on the table, and then analyze what would happen to lawmakers if they were subjected to the same policies they’re trying to impose on the American public. In a recent New York Times article, reporter Mary Williams Walsh asks a very appropriate journalistic question, “What if a Pension Shift Hit Lawmakers, Too?” In this case, a proposal increasingly gaining favor in the private sector to adjust the way pensions accrue and are distributed would cost most members of Congress hundreds of thousands of dollars. But will this knowledge affect the debate, or will members of Congress ignore the consequences of a policy shift that in all likelihood, they will never have to live with?

Congress is expected to debate pension legislation in the months ahead, including proposals that would affect benefit levels and the strength of the pension system itself. An especially contentious debate is looming over regulations proposed by the Bush administration on how companies could convert their traditional pension plans to the cash-balance variety. In traditional pension plans, also known as “defined benefit plans,” you are promised a specified monthly benefit at retirement. The amount of your benefit is stated either as an exact dollar amount, such as $100 per month at retirement, or calculated using a plan formula that considers such factors as salary and service – for example, 1 percent of your average salary for the last 5 years of employment for every year of service with your employer. Another type of retirement plan is called a “defined contribution plan.” This type of plan does not promise you a specific amount of benefits at retirement. In these plans, you or your employer (or both) contribute to your individual account under the plan, sometimes at a set rate, such as 5 percent of your earnings annually. Examples of defined contribution plans include 401(k) plans, 403(b) plans, employee stock ownership plans, and profit-sharing plans. (See the Department of Labor’s (DOL) What You Should Know About Your Pension Rights.)

Increasing gaining favor in the private sector is a variety of plan called the “cash-balance plan,” called that because employees periodically receive notice of a hypothetical cash balance that they can track as it grows. Since the 1980’s, hundreds of large companies have switched from traditional (defined benefit) to cash-balance plans. These plans combine features of the traditional pension with yet another type of retirement plan, the 401(k) (a defined contribution plan), in which employees manage their own retirement money and sometimes receive matching contributions from employers. Neither defined contribution nor cash-balance plans are inherently inferior to defined benefit plans for all workers. Contributions to defined contribution plans generally are invested on your behalf, and so you will ultimately receive the balance in your account, based on contributions plus or minus investment gains or losses. The value of your account will fluctuate due to the changes in the value of your investments, which in past years have made these types of plans very lucrative and more valuable than some defined benefit plans, but much less so in an economic downturn such as the one Americans are currently facing.

However, two significant problems with cash-balance plans, especially in conjunction with the conversion process, have emerged. One charge is that the plans discriminate against older workers. The reason that older workers are so adversely affected by cash-balance conversion is because of the way traditional defined benefit plans are most commonly calculated. According to AARP, the leading advocacy organization for older workers, benefits in traditional defined benefit plans are based on a worker’s tenure with one employer and average salary in late career, when earnings have peaked, while in a cash balance plan, workers build up benefits throughout their careers, and the balance is portable when changing jobs. When companies switch plans, longtime workers miss out on the benefit spike they would have received under a traditional plan, and they are too close to retirement to make up the difference in a cash balance plan. (See AARP Bulletin story.) A second common problem with cash-balance conversions is that they’re all too often simply calculated incorrectly, to the worker’s disadvantage of course. A 2002 audit by DOL’s Inspector General showed that 22 percent of the 60 conversion plans studied miscalculated lump-sum benefits for workers who quit their jobs before normal retirement age, underpaying them by as much as $55,629 each. See AARP Bulletin story and the DOL audit report.) Columnist Molly Ivins has also recently drawn attention to this issue. See Rescue Your Pension Plan.

Back to the politicians: no cash-balance conversion plan is currently in the works for Congress (although legislation to do so may be introduced on the basis of this study). However, what is happening now are plans to lift the current moratorium on cash balance conversions, imposed by the IRS in 1999. The Bush administration has proposed regulations that would settle the issue, laying out basic rules for making cash-balance conversions legal. Public comment will be accepted until Thursday (3/13/03), and hearings are scheduled in April. (For advice about making comments, see CWA letter information.) If the proposed regulations take effect, the moratorium will be lifted. For Rep. Bernard Sanders (I-VT), that’s not acceptable. In response, he commissioned the study by the Congressional Research Service, a nonpartisan branch of the Library of Congress, hoping that the new findings would “show the hypocrisy” of colleagues who would let other people undergo pension conversions but would not have to suffer ill effects themselves. (See Sanders’ press release, “What Is Good For The American Worker Should Be Good For Members of Congress.”) What the study found is that if, for example, if House Majority Leader Tom DeLay (R-TX), had a cash balance pension plan instead of a traditional defined benefit pension plan his pension benefits would be reduced by $357,057 or 58.7% under a cash balance conversion – from $608,143 under the current traditional defined benefit pension plan to $251,086 under the cash balance plan. If Speaker of the House Dennis Hastert (R-IL), had a cash balance plan instead of a traditional defined benefit pension plan his pension benefits would be reduced by $376,117 or 69% — from $540,572 to $164,455. Will this make a difference in the policy debate? It should, but probably won’t. For the New York Times story, DeLay did not respond to a request for comment, while Hastert’s office questioned whether it was fair to single out members of Congress for scrutiny when the entire federal compensation system is skewed toward smaller paychecks and larger pensions compared with the private sector. (Now why do you think that is? Do you suppose the politicians involved had anything to do with it?)

Just like the Congressional budget rules that require offsets of all new tax cuts with revenue raisers designed to balance the budget, maybe we should also keep looking for other ways to force Congress to live with the policies it seeks to impose on the American public. This new cash-balance conversion analysis provides a very good precedent for that.

Stop Taxing Discrimination Awards: The Civil Rights Tax Relief Act is Back

Monday, March 10th, 2003

The news just in from Congress: the Civil Rights Tax Relief Act, one of the most important pieces of civil rights legislation pending before Congress in the last several years, has been reintroduced. (The bill numbers are HR 1155(House) and S 557 (Senate). You can continue to track the bills’ progress at the Thomas legislative site). You may wonder why this bill is so important, as tax issues don’t always tend to be the most interesting in the world, to say the least. Did you know, however, that everyone who succeeds in challenging discrimination by settling with their employer or winning in court now can face a second form of discrimination? That extra discrimination is caused by our tax code, which causes money received in the form of discrimination awards to be taxed at a higher rate than other kinds of court awards. Our tax code operates so unfairly that some employees who win their cases end up owing more money in taxes than they received for winning their cases! (See New York Times story of Cynthia Spina.)

This additional discrimination comes in three forms:

Taxation of Emotional Distress Awards: Awards received for “pain and suffering” or “emotional distress” are taxed in all cases where there has not been a physical injury. This discriminates against those involved in discrimination and civil rights cases. While emotional damages received because of an accident causing physical injury are tax free, damages to compensate for the very same psychological injury caused by employers who intended to discriminate, are not.

Higher Taxation of Back-Pay Awards: Awards received in discrimination cases that are designed to cover lost wages (back pay or front pay) are considered taxable income, just as if they had been earned on the job. However, IRS regulations require that all wages be taxed in the year received, even though many awards cover several years worth of wages. This can put workers in a higher tax bracket than would have applied if they had not been discriminated against and cause those who have been discriminated against to pay much higher taxes than those who never face job discrimination.

Double Taxation of Attorneys Fees: Most people must hire a lawyer to bring a discrimination lawsuit in order to succeed, and the law requires that the employer must pay the attorney’s fee if you are successful. However, the amount that goes to the attorney for working on the case is taxed twice In most parts of the country, the IRS says that both the attorney and the employee owe taxes on the same amount of money, even though the employee never sees the money. In some cases, this means that employees who win their lawsuits are left owing all their award and more to the IRS–for winning their case! New this year: the National Taxpayer Advocate has identified this particular problem at the top of the list of legislative priority items to be fixed in the Internal Revenue Code. For more on this issue, see Taxpayer Advocate Report. (The legislative section begins on page 156 of the report. It’s a PDF file, and I found the quickest way to get to the correct page is to go to the search function (the binocular button) and input “nonphysical personal injury.” The first time, it will take you to the table of contents (this is the first (and let’s presume most important) recommendation the Advocate makes), but if you do “find again,” you’ll end up where you need to be.)

The National Employment Lawyers Association, WF’s sister organization, has taken the lead in lobbying for the passage of this bill over the past several years. However, many groups with extremely diverse political and philosophical perspectives have also supported this bill, including the U.S. Chamber of Commerce, the American Small Business Alliance, the American Bar Association, the Leadership Conference for Civil Rights, and AARP. These groups understand that unfairly taxed settlements benefit no one but the IRS: businesses face higher settlement and litigation costs, while plaintiffs are not made whole for the harm that they have suffered even after undergoing litigation for that specific purpose. These groups have also succeeded in coming together for past lobby days, where affected plaintiffs travel to Washington to tell their stories. We expect that additional lobby days will be needed this year to make sure the bill passes in 2003. (Read about past lobby days.)

Even if you are not currently a civil rights plaintiff or attorney, we need you to speak out. As long as current tax law penalizes civil rights cases, some meritorious cases will not be brought, while others will cost both sides far more than they should. Don’t let this issue slip through the cracks…it may seem like a minor tax issue, but to those affected, it’s very serious indeed. And that person might someday be you.

Take Action Now:

Stop Taxing Discrimination Awards Unfairly!

Stop Taxing Discrimination Awards Unfairly! (current plaintiffs only)

More Information about the CRTRA:

NELA Civil Rights Tax Relief Page

Taxpayer Advocate Report

Posts to Resume Soon

Sunday, March 9th, 2003

As I suspected, I didn’t have an opportunity on my trip to post, which will explain the absence of blog posts during the last week. However, I’m now back on the job, with lots of interesting developments just waiting to be commented upon, so I’ll do my best to catch up a little this week.

Hooked on Comics? Get Your Fix at UComics

Tuesday, March 4th, 2003

If you’re having trouble getting your daily fix of your favorite cartoon, you really should know about UComics.com. Although my local paper doesn’t run my personal favorite, editorial cartoonist Tom Toles, I can still get a daily dose of Toles from UComics, by signing up for their daily subscription service, which delivers each day’s comic straight to my e-mail box (one selection costs nothing, while multiple selections require an annual subscription). I chose Toles, because of his insightful political analysis, especially on the issues related to the economy and workplace that we at Workplace Fairness care about most (see February 20’s edition to see what I mean), but you can choose from dozens, if not hundreds of comic strips, from the old standards Garfield, Doonesbury, and Cathy, to newer voices such as Ann Telnaes and The Boondocks. Those interested in workplace humor may want to check out 9 to 5 and Bottomliners (no Dilbert here, though–you’ll have to go to dilbert.com for that). Wiley’s Nonsequitur gets in a few shots at lawyers and the justice system along the way–his latest book isn’t called “The Legal Lampoon” for nothing! (One of Wiley’s previous books was called “Dead Lawyers and Other Pleasant Thoughts,” so the most recent title isn’t quite so bad…) While life or work may be making you cry, you’re guaranteed to find something at UComics.com to make you feel a little better.

Blog Posting Reduced Week of March 3

Monday, March 3rd, 2003

I will be traveling this week to San Francisco for business this week, and my computer access will be spotty, making it difficult to keep up with postings to this blog. I will do my best to post some blog entries; however, I may not be able to produce daily posts. I am attending a seminar, sponsored by NELA, on the Fair Labor Standards Act, Family & Medical Leave Act and the Equal Pay Act, so I will attempt to include some interesting tidbits of information from this seminar upon my return next week.

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