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Archive for July, 2003

Pryor's Nomination Stalled, For Now, As Senate Goes on Summer Recess

Thursday, July 31st, 2003

Today Democrats in the U.S. Senate blocked the nomination of William H. Pryor to the 11th Circuit Court of Appeals from moving forward. The 53-44 vote in favor of ending the Democratic filibuster fell short of the 60 votes needed to move Pryor’s nomination forward. The partisan but unusually rancorous debate about Pryor’s nomination focused heavily on recent Republican charges that Democrats are biased against Catholic nominees. (See Washington Post article.)

The Pryor debate capped off a week of unsuccessful votes on appeals court nominees, including those of Miguel Estrada and Priscilla Owen, whose nominations have now been stalled for several months. However, another stalled nominee, Carolyn Kuhl, did not face a vote on her nomination, delaying the suspense as to whether her nomination will also be subject to a filibuster. Members of the Senate will now go home to enjoy their usual summer recess, and will not return until after Labor Day to resume the nominations debate.

On July 23, in a 10-9 vote strictly along party lines, the Senate Judiciary Committee voted to forward Pryor’s nomination to the floor of the Senate. (See July 23 Washington Post article.) The vote was not completely unexpected, although Sen. Arlen Specter (R-PA), known as a moderate Republican, had been lobbied heavily to break party ranks to prevent Pryor’s nomination from moving forward. (See Montgomery Advertiser article.) However, despite the lobbying and his own concerns about Pryor’s record, Sen. Specter ultimately decided to allow Pryor’s nomination to move to the Senate floor, and joined other members of his party in voting for Pryor’s nomination to continue. (See Spector Speaks on Pryor.)

While Pryor’s nomination was still pending before the Judiciary Committee, the Committee for Justice, a group headed by former Bush I White House Counsel C. Boyden Gray which supports conservative nominees, got involved by running ads in Maine and Rhode Island (ads in PDF format), accusing legislators who oppose Pryor of engaging in anti-Catholic bias. The ads were primarily designed to influence moderate senators Olympia Snowe and Lincoln Chafee, both of whom might finally break Republican ranks to oppose a nominee extreme as Pryor. The ads, which stated “Catholics Need Not Apply,” accompanied by a picture of a courthouse door, angered Democratic senators, especially the Catholic senators who had previously supported other Catholic nominees.

Sen. Patrick Leahy (D-VT), raised in a Catholic home, called the charges of anti-Catholic bias “despicable” and a “slander.” (See Los Angeles Times article and Leahy’s Dear Colleague letter.) Both in the Judiciary Committee and on the Senate floor, senators opposing Pryor reiterated their protests against the bias charge, and the injection of religion into the process generally, but Republicans continue to charge that the Democrats’ opposition to Pryor and other conservative nominees is based upon a religious litmus test. (See Chicago Tribune story.)

Another charge leveled against Pryor is that as Alabama Attorney General and the treasurer of the Republican Attorneys General Association (RAGA), he solicited funds from corporations from tobacco, drug, energy and banking corporations that are often investigated by states and their attorneys general, and did not testify truthfully when asked about his fundraising activities by the Senate Judiciary Committee. (See New York Times article.) One Alabama legal expert (fellow blogger and NELA member Edward Stein) discusses why these activities may have violated Alabama law. (See 7/18 Votelaw blog entry.) Although Democrats protested the July 23 committee vote on the grounds that too many unanswered questions remained about Pryor’s fundraising on behalf of RAGA, that too failed to delay the committee vote, or influence the vote on the Senate floor, as all Republicans (and Democrats Zell Miller (GA) and Ben Nelson (NE) voted in favor of the cloture vote in opposition to the Democratic filibuster.

The battle about judicial nominees is sure to continue fast and furious upon the Senate’s return from recess. Nominees Pryor, Estrada and Owen are all stalled due to filibusters, and 9th Circuit nominee Carolyn Kuhl may also face further delay on her nomination. The Senate Judiciary Committee also seems determined to move ahead on the nominations of 6th Circuit nominees which until now have been subject to holds (or “blue slips”) placed by Michigan Democratic senators Carl Levin and Debbie Stabenow. (See Detroit Free Press article.) While the Senate may slow down for the next month, it is extremely important to keep up the opposition to confirming conservative nominees whose views are hostile to civil rights and workers rights.

Take Action Now:

Stop Bill Pryor

Stop Carolyn Kuhl

Stop Priscilla Owen

Stop Miguel Estrada

Discouraged, Disillusioned, and Ultimately Disposable

Tuesday, July 29th, 2003

A new study released yesterday demonstrates just how bad it is for the American worker in mid-2003. In The Disposable Worker: Living in a Job-Loss Economy, we learn that nearly one in five workers (18%) suffered layoffs from a full- or part-time job in the last three years, with low-income workers particularly susceptible to layoffs (23% for workers making less than $40,000 per year, compared to 11% for workers making over $40,000). The vast majority of these workers were laid off with little or no notice (64%) and no severance pay (65%). As the survey concludes, “the current troubled economy is hitting many workers hard–particularly lower-income and minority workers.” No kidding.

Between June 10 and 21, 2003, researchers at the John J. Heldrich Center for Workforce Development at Rutgers University and the Center for Survey Research and Analysis at the University of Connecticut interviewed 1015 American workers as part of Work Trends, “a national survey series that polls American workers and employers about issues affecting their lives in the economy, the workforce, and the workplace.” What researchers found were workers expressing concerns over economic issues related to employment at the highest level since the Work Trends series began in 1998. Workers, regardless of their political affiliation, think that the president could do better handling issues related to jobs: only 8% thought President Bush was doing an excellent job handling job issues, while 31% said that he is doing a poor job. Congress gets even lower marks, with only a whopping 2% giving it high marks, while 33% rating it poorly.

As pessimistic as the results are, the survey may not even fully reflect the seriousness of the situation nationally. Workers who have dropped out of the workforce and are no longer looking for a job are considered “discouraged workers,” and were not included in the survey sample (or national unemployment statistics.) And 35 percent of survey respondents who found new jobs after being laid off said they were underemployed, earning less than they had before. As Jared Bernstein, an economist with the Economic Policy Institute, notes, “To really get a picture of the breadth of the pain doled out by the jobless recovery, you need to account for … those who are employed in less than optimal situations.” (See Newsday article.)

The experience of polled workers resonates with other workers interviewed for news stories about the Work Trends study release. Serge Kher, a 48-year-old father of four, was formerly the general manager of a car dealership in Virginia Beach until he laid off in March. Since then, he has had only one job interview, even after sending out 107 resumes, trolling Internet job sites and looking into different fields. He says, “I’m starting to go crazy. There are days when I feel that I’m worthless.” (See USA Today article.) Sheila Ireland, a former home health care aide who hasn’t worked in four years, says, “I know what it is to not have money and to have to support yourself.” (See Newsday article.)

Researchers conclude from the survey results that a backlash is brewing amongst workers angry about the unemployment crisis. Study coauthor Carl Van Horn asserts: “There is a ticking time bomb of concern among American people about the economy. For employers and political leaders, it’s volatile. Employers need to think about what are the consequences to not giving people a soft landing when they do have to cut back their workforce.” According to Van Horn, one of the reasons most employers do not extend severance pay or benefits to laid off workers is because of the jobs lost in this recession are gone forever–for instance, in manufacturing. Since workers are not likely to return to their old jobs, “the employer is less concerned what the employee thinks about them,” he said. (See Chicago Tribune article.)

What solution to this very serious problem do workers favor? More support and intervention from the government to assist the unemployed. Fifty-seven percent of workers strongly agree that the government should help laid off workers keep their health insurance, while 39% strongly agrees that the government should help unemployed workers pay for education and training for new jobs and careers. Nearly one-third (32%) support extending unemployment insurance benefits beyond 26 weeks. More than 70% support federal reemployment accounts, which would provide individuals with their choice of reemployment and training services, as well as cash incentives for quickly finding new work.

Do the Work Trend researchers consider the recession over, despite the high unemployment rate? (See 7/17 blog entry for more information about the claim that the recession is over.) Not by a long shot. As coauthor Van Horn states, “There are still a lot of people unemployed. If you’re a typical person and not an economist, you don’t really care about the GDP.” (See USA Today article.) Now, if the politicians would just stand up and take notice of this study, perhaps some of the solutions to widespread unemployment will start to see action this fall in Congress.

Deaf Employees To Benefit From UPS Settlement

Wednesday, July 23rd, 2003

Deaf and hearing impaired employees of United Parcel Service (UPS) will receive $10 million in financial damages and benefit from changes in company policy as the result of a settlement announced yesterday (7/22) in the midst of a trial that had been otherwise expected to last through the end of this year. The nation’s fourth-largest employer will pay damages to approximately 1,000 current and former UPS employees, and has agreed to provide provide deaf workers with effective communications, including interpreters, for interviews, orientation, training, safety meetings and disciplinary sessions. (See New York Times article.) The settlement is also expected to prompt other large employers to make similar changes to ensure that deaf employees are fully accommodated in the workplace.

In 1998, deaf workers, represented by the California-based Disability Rights Advocates and the law firm of Schneider & Wallace, filed a class action lawsuit before the federal district court in San Francisco, California. Some of the accusations made in the lawsuit were that UPS maintained a “glass ceiling” that excluded hearing-impaired employees from advancement, and that the company jeopardized the health and safety of deaf employees by failing to provide interpreters and address communication barriers that prevented deaf employees from receiving important safety and emergency information. (See DRA Representative Cases summary). In 2001, federal district court judge Thelton E. Henderson ruled that the case could proceed as a class action on behalf of 900 to 1000 current and former employees of UPS, as well as deaf applicants who were not hired for UPS jobs. (See U.S. District Court order.)

Since early April 2003, the parties were involved in a federal court trial in San Francisco that was expected to last through the end of 2003. (See AP article.) The deaf workers and their attorneys planned to prove in the trial that hearing-impaired UPS employees were “systematically marginalized,” because the company failed to provide sign-language interpreters during emergency and workplace training, and rarely promoted deaf employees to delivery driving or supervisory roles. The lawsuit also attacked UPS’s policy of denying hearing-impaired workers jobs operating delivery trucks weighing under 10,000 pounds, even though government safety guidelines do not require this policy, and other services such as the U.S. Postal Service and Federal Express allow deaf drivers to drive some smaller trucks. Over 30 deaf plaintiffs testified that they were routinely excluded from workplace information, denied opportunities for promotion, and exposed to unsafe conditions due to lack of accommodations by UPS. (See Schneider & Wallace press release.) For example, one plaintiff, Babaranti Oloyede, said that UPS refused to provide him with an interpreter, despite his repeated requests, for trainings on detailed safety instructions during the anthrax scare in 2001 that killed and injured a number of postal workers. Other plaintiffs spoke of how UPS lacked any system to alert them to emergencies, such as fires or chemical spills, to ensure that they would be evacuated safely. In fact, a number of class members related how they were overlooked and forgotten during such emergency evacuations and drills. Many employees noted the lack of phone access for emergencies due to UPS’ failure to provide a text telephone, although hearing employees all had access to telephones.

Settlement negotiations were ongoing, before and during the trial, and on July 22, the $10 million settlement was announced. Of the $10 million settlement, $5.8 million in monetary damages will be distributed to class members, while $4.1 million will be allocated for attorneys’ fees and costs. Named class members will receive approximately $60,000 each, while other class members will receive an amount based on factors such as their length of employment and the level of discrimination suffered. (See Mercury News article.) Other changes that will benefit deaf workers include: UPS will spend $100,000 to track promotions and ensure that deaf employees and job applicants have access to certified interpreters; and the company will provide text telephones and vibrating pagers to alert deaf employees to emergency evacuations. (See AP article.)

Despite the settlement, one aspect of the case remains unresolved, and will become the primary subject of a continuing trial. UPS did not agree to change its policy which prohibits deaf drivers from driving smaller UPS trucks. UPS spokesperson Peggy Gardner states the company’s position on that issue: “This issue is one of safety, not a disability or discrimination issue. UPS believes that any individual that cannot meet those minimum standards set by the Department of Transportation should not be driving a UPS truck. We feel very strongly about that, which is why we did not come to an agreement.” What the statement does not reflect is that the Department of Transportion does not apply those minimum standards to trucks weighing under 10,000 pounds, and so the issue remaining is whether UPS can choose to apply standards that exceed minimum government requirements when those standards discriminate against disabled employees.

Deaf plaintiffs appear pleased with the outcome. Plaintiff Oloyede, who has worked at UPS for over 10 years, said, “I suffered for all those years. I’m hoping that in the future, deaf people will not feel like second-class citizens but will feel that they have equal opportunities with their hearing co-workers. . . . Our reason for filing was to stop the suffering.” The proposed settlement requires court approval after notice is distributed throughout the country and a fairness hearing is held. The parties hope for final approval by the end of the year.

Attorneys hope the case will also send a message to other corporate employers about how to accommodate their hearing-impaired employees. Caroline Jacobs of DRA remarked, “We hope that this settlement sends a message to all employers throughout the country that employees with disabilities are entitled to the same rights and opportunities as other employees in the workplace.” While it remains to be seen what ripple effect, if any, this case will have, the sheer size and prominence of UPS as an employer will ensure that this settlement, and the new policies and practices it will spawn, will certainly be noticed by other employers.

Dustup in the Ways & Means Committee: Pension Reform Gets Ugly

Friday, July 18th, 2003

It wasn’t quite the WWE, but things got testy in a very partisan way before the House Ways & Means Committee today, as legislative passions became aroused in a manner very atypical of pension reform discussions. While there weren’t any fistfights, arrests, or censures, it wasn’t for lack of trying, as both Republicans and Democrats did their best to paint the other side guilty of egregious breaches of House protocol. Ultimately, however, the Republicans prevailed, as they often do in the House of Representatives, by passing a pro-business pension reform measure in the Democratic committee members’ absence and by evading the censure of Rep. Bill Thomas (R-CA), Ways and Means Committee Chairman.

The contretemps occurred as follows: Committee members were assembled at 10:00 a.m. on July 18 to take action on a pension reform measure (known as a “markup”). During the committee hearing, Democrats learned that the pension bill had been rewritten in the middle of the night, giving the minority party no opportunity to review the proposed legislation. The Committee’s senior Democrat, Rep. Charles B. Rangel, objected to the consideration of the bill, yet Chairman Thomas continued to proceed with the markup. Agreeing that it was time for some civil disobedience, committee Democrats left the hearing room to take refuge in an adjacent library, leaving behind only one Democratic member, Rep. Pete Stark, (D-CA) to engage in procedural maneuvers designed to delay consideration of the bill. Rep. Stark asked for a reading of the 91-page bill, which Chairman Thomas indulged only briefly before trying to gavel it to a close, giving Rep. Stark no further opportunity to object. (See Washington Post article.) Mr. Stark then grew agitated, prompting Rep. Scott McInnis to mutter, “Shut up.” (See New York Times article.)

A transcript reveals what followed:

Mr. Stark: “Oh you think you are big enough to make me, you little wimp? Come on. Come over here and make me. I dare you. You little fruitcake. You little fruitcake. I said you are a fruitcake.”

Mr. Thomas: “Recess is over. The classroom has been resumed.”

At some point–no one knows exactly when–Rep. Thomas summoned the Capitol Police to evict the recalcitrant Democrats from the library in which they were ensconced and to protect Rep. McInnis from further verbal abuse. The Capitol Police, after visiting the library and determining that the issue was more one of legislative protocol than national security, declined to take further action. Or, as one commentator put it: “in the only mature decision made that day, decided that they had better things to do than perform playground-monitor duty for a batch of squabbling children. They advised the honorables to settle their hash among themselves, and left.” (See Virginian-Pilot article.)

The Republicans, who hold a committee majority, then passed the bill that they had drafted in the Democrat committee members’ absence, sending the pro-business pension reform bill to the House floor. What was the substance of the bill that caused such a ruckus? Commentators say that the bill, as written, is a victory for the business community. If passed as is, the bill would allow companies to use a more favorable pension calculation that would save them from having to make tens of billions of dollars in pension contributions over the next three years, according to actuarial studies. (See New York Times article.)

The Republicans on the Ways and Means Committee rejected an administration proposal to overhaul the way pension values are calculated, which Treasury officials said would improve accuracy and ultimately increase the solvency of pension plans. The members also rejected a related administration proposal to make companies disclose more information about the health of their pension plans. The bill that now goes to the House would change pension calculations in a more modest way and would apply for the next three years, although the business community hopes to make this change permanent.

After the bill was passed by the Committee, outraged Democrats attempted to take action on the House floor to censure Chairman Thomas. House Minority Leader Nancy Pelosi (D-CA) took a point of personal privilege on the House floor in an attempt to have Rep. Thomas censured by the House. In Pelosi’s remarks on the floor, she said

It is clear that the Republicans are in denial about their behavior, and it is clear that the Democrats must draw a line in the sand on the repression of our rights in this Congress….What should be a stunning fact to the American people is that the Republicans in the House of Representatives need to be convinced that it is wrong to call the police to evict the Democratic colleagues from their meeting….The Greeks had a word for it — hubris — and it was about power, abusive power, arrogance. And it is a tragic flaw. We cannot allow your tragic flaw to shut down the voices of the American people.

None of the Republican House members were persuaded by Pelosi’s speech, however; the motion to censure Thomas for his actions failed in a vote along party lines. Rep. Stark ultimately apologized for his intemperate words, stating that he had “exchange[d] words that were not becoming of my office. I regret that.” And some Republicans are quietly muttering that Chairman Thomas’ behavior indicates that he may need to be replaced as committee chairman; however, no action has yet been taken. (See Fox News story.)

Whatever happens with pension reform, it is clear that partisan tensions have reached what might even be an all-time high. As Rep. Nancy L. Johnson (D-CT), a Republican Ways and Means member, said: “It wasn’t a day in which the dialogue amongst us was equal to the challenge of governance.”

The Recession's Over, So Where's My Job?

Thursday, July 17th, 2003

You might not have noticed, but the U.S. economic recession is over, it was announced today. Even better news: it ended twenty months ago. According to the National Bureau of Economic Research, an independent research group that tracks the business cycle, the recession was over in November 2001. However, as one economist wryly noted, “Most households, most individuals, will really not believe that it is a recovery until we see that job growth as part of the picture.” (See New York Times article quoting Lynn Reaser, chief economist of Banc of America Capital Management.)

Yesterday, in Cambridge, Massachusetts, a group of seven economists, experts in business cycle dating who have been selected as members of the Business Cycle Dating Committee, met to discuss the U.S. economy and analyze recent economic developments. After analyzing the data available to them, they declared that in the month of November 2001, there was a “trough in business activity,” which “marks the end of the recession that began in March 2001 and the beginning of an expansion.” (See NBER Press Release.) It was a recession that ended just as it started in one sense, as the Committee did not declare until November 2001 that the recession had officially started, dating back to March 2001. (See The Business-Cycle Peak of March 2001.) The recession lasted 8 months, which is slightly less than average for recessions since World War II, according to the Committee.

The Committee is obviously in no rush to make these pronouncements: it wants to stay above the political and economic fray by ensuring its announcements have as little effect on the current economy as possible, and it also wants to ensure that its pronouncements reflect short-term economic fluctuations. As the current chair of the Committee put it, “We don’t take a stand on what’s ahead, but this one is in the record books,” said Robert Hall, an economics professor at Stanford University who has chaired the committee for more than 20 years. (See CBS Marketwatch article.)

So, you might wonder how the economists can declare that the recession ended two years ago when so many people remain unemployed. (I know I did, anyway.) Just last week, the Labor Department announced that the number of Americans seeking unemployment benefits had reached its highest point in more than 20 years, surpassing 3.82 million, the highest level since February 1983. (See Reuters article.) And today, the results of a study in Minnesota were released, where it was concluded that the job market in Minnesota is worse right now than it has been at any time since the nation’s economic downturn began two years ago. (See Minnesota Public Radio article.) The head of the Minnesota study remarks, “We estimate that there are four job vacancies now for every 10 unemployed people. Two years ago at the beginning of the recession, before the employment declines of the past two years, we had a one-to-one-ratio. There were 10 vacancies for every 10 unemployed workers.” Unemployed Minnesotan Ron Corradan, out of work for a year, doesn’t need to see the statistics to declare the current job market “arrogant, with employers expecting “God-like” skills at entry-level working conditions.

So how can the economists ignore the plight of unemployed workers when declaring that our economy is expanding rather than contracting? The current explanation is that this is a “jobless recovery.” No kidding, but why isn’t that an oxymoron? Economists say the economy is expanding due to (and perhaps only due to) the increase in worker productivity. Simply put, fewer workers are working much harder to ensure that businesses are making more money each month.

The Committee used to use as its key monthly indicator of economic strength the payroll employment figure, and designated March 2001 as the beginning of the recession primarily because that was when the number of payroll jobs began to drop, a decline of 2.6 million so far. If the committee were to rely on the same indicator to date the end of the slump, the recession would already have lasted for two years and three months, making it the longest since the vastly more serious downturn that began in 1929 and became the Great Depression. (See Washington Post article.) However, due to the rise in worker productivity — the amount of goods and services produced for each hour worked — companies have been able to increase production while cutting their workforces. (Of course, it’s not like workers have much of a choice these days when it comes to productivity: there’s so much more work to do, given the number of layoffs and stagnant hiring, and a worker who doesn’t accommodate the increased workload can easily be replaced by an unemployed worker who will.)

I’m no economist, but it’s hard to see any good news in this announcement. If the definition of a recession (and the accompanying political will to overcome it) no longer takes into account massive unemployment figures, then employers have little incentive to hire new workers, and will come to take the current level of productivity for granted. If economists and politicians don’t work to encourage business growth coming as a result of increased hiring, rather than viewing the current economic state through the harsh lens of a recession status, then what will it take to trigger a decline in unemployment. My prediction (and fervent hope as well) is that the American public (and especially voters) will take their own definition of a recession with them to the polls next year, rather than accepting the Committee’s rosy view of our economy. For many of us, the recession is alive and well.

House of Representatives Turns Back Bid to Change Overtime Regulations

Friday, July 11th, 2003

On Thursday (7/10), the House of Representatives, in an extremely close vote, rejected Democratic efforts to prevent proposed overtime regulations from going into effect. The 213-210 vote indicates that even some Republicans in labor-friendly districts understand the negative impact that these changes could have on their constituents. However, it’s not clear whether the Senate, considered to be the more progressive and least partisan of the two bodies, will take up the battle to overturn the proposed regulations–a battle that might be winnable.

As previously discussed here in the June 16 entry, proposed regulatory changes to the Fair Labor Standards Act (FLSA) are likely to have the effect of forcing a large number of employees to work for longer hours without paying overtime compensation. For additional information on the proposed changes, see WF’s fair overtime page page. The Department of Labor (DOL) invited public comment on the proposed regulations, with the comment period expiring on June 30, 2003.

Ask and ye shall receive: the DOL received an estimated 75,000 to 100,000 comments from the public on the overtime proposal (including many sent through the Workplace Fairness Action Center)–the most ever received by DOL on an issue submitted for public comments (See Sun-Sentinel article.) Many organizations sought to activate their public constituencies on this issue, and apparently succeeded: one article reports that three-fourths of the comments are from workers and worker representatives, while only one-fourth were from businesses. (See Kansas City Star article. The sheer number of comments indicates that this is an issue about which many American workers feel very strongly.

However, the Department of Labor is under no obligation to take seriously any of the comments received, nor take into account the fact that a three-quarters majority oppose some or all of the proposed changes. Nor do the comments require Congressional approval. They could go into effect by the end of this year without any further changes or additional consideration, even though some experts fear the changes might be delayed. The process the proposed changes will follow now is as follows, according to DOL spokesman Ed Frank: The Labor Department will review the comments, consider whether to make any changes to address them and forward them to the Office of Management and Budget. The OMB then has 90 days to review the proposal. A final proposal could then be placed in the Federal Register, and the rules could become effective 30 to 90 days later. Thus, it appears the rules could easily be implemented before early 2004. (See Memphis Commercial Appeal article.)

The possibility that the rules could be enacted without any further changes caused House Democrats to try to put on the brakes by amending the Department of Labor’s appropriation bill before Congress last week. Attaching such amendments to appropriations bills is a common strategy, as it puts the President in the difficult position of denying the agency the funding it needs to exist to do its work, or accepting the unpopular amendment in order to enable the appropriation. President Bush had threatened to veto the Labor appropriations bill, rather than accept the Democratic amendment. (See AP article.)

Groups on both sides lobbied Congress heavily prior to Thursday’s vote. (See Washington Post article.) At the end of the showdown between labor and business interests, three Democrats joined Republicans in opposing the amendment, while fourteen Republicans joined Democratic colleagues in voting for the amendment. (see WXXI article.)

What happens now? Several articles reported that the same strategy could be tried in the Senate, although some skepticism was expressed as to whether the tactic was likely to succed there. But what if the Senate heard from the 75-100,000 workers who commented on the original proposal? I think the Senate, accountable to its constituency in a way that the Department of Labor is not, would sit up and take notice. However, if the American public cannot sustain a continued opposition to the regulations, then decades of wage and hour laws are likely to be blithely discarded with no further changes to tip the proposal any more in favor of workers who depend on overtime for additional income, and the threat of overtime pay for reasonable family time.

Oppose the Labor Department’s Overtime Changes: Ask the Senate to Overrule the Proposed Changes

Pryor's Nomination Vote Delayed, So Act Now!

Thursday, July 10th, 2003

Today the Senate Judiciary Committee, poised to take action on the nomination of William Pryor to the 11th Circuit Court of Appeals, chose to delay the vote on his nomination for one week. (See Birmingham News article.) Democratic members of the Committee viewed the delay, initiated by the Republican majority, as a sign that support for Pryor’s nomination may be fading; however, until a vote is taken, it should be assumed that Pryor’s nomination is alive and well. Your help is needed now to ensure that Pryor’s nomination dies in committee and never reaches the Senate floor.

Here is some information about Pryor’s record, in case you are not previously familiar with this most extreme judicial nominee:

William (Bill) Pryor, 41, has been nominated to the 11th Circuit Court of Appeals, which hears cases appealed from Alabama, Florida and Georgia federal district courts. He currently serves as Alabama’s Attorney General, a position he has held since 1997, first by appointment, and then via statewide election in 1998 and 2002.

Pryor’s record demonstrates that he is an ultra-conservative activist whose record disqualifies him from a lifetime appointment to the federal judiciary. He has consistently and aggressively fought for limits on important civil rights laws, and is extremely hostile towards the rights of women, gay men & lesbians, and other minority citizens. Pryor has advocated his extreme views not only in lawsuits in which the state of Alabama was a party, but also by filing briefs in cases in which Alabama was not involved and Pryor had no obligation to participate. Pryor is also a frequent public speaker whose speeches make clear that the ideological positions he has taken in these cases are his own.

On Wednesday, June 11, the Senate Judiciary Committee held a hearing on Pryor’s nomination, where Pryor unapologetically acknowledged many of his prior controversial statements.

We urge you to oppose the nomination of William Pryor for the following reasons:

Pryor advocates for limits on the reach of important civil rights laws. He personally has been involved in several key Supreme Court cases that, by narrow 5-4 majorities, have restricted the ability of Congress to protect Americans’ rights against discrimination and injury based on disability, race, and age. Recently the Supreme Court rejected Pryor’s argument that the states should be immune from lawsuits for damages brought by state employees for violation of the federal Family and Medical Leave Act. Pryor has argued in briefs before the U.S. Supreme Court that Congress had exceeded its power by applying disability access laws to state governments. Furthermore, Alabama was the only state to file an amicus (friend of the court) brief urging the Supreme Court to deny sexual assault victims the ability to sue their attackers using the Violence Against Women Act. The attorneys general of 36 other states took the opposite position in the Supreme Court.

Pryor does not appear to accept the supremacy of the U.S. Constitution. He has, on several occasions, stated that he believes that individual rights guaranteed by the U.S. Constitution, such as women’s rights, freedom of religion, reproductive rights, and the rights of gay men and lesbians, can be overruled by the vote of a majority of citizens. Pryor’s ideology would effectively create a balkanized America in which individual citizens may have fewer constitutional rights depending on where they live.

Pryor supports limiting the federal government’s ability to ensure compliance with the Voting Rights Act. Pryor has testified before Congress urging the repeal of Section 5 of the Voting Rights Act, which requires covered jurisdictions to obtain “preclearance” for new voting practices and procedures from either the District Court for the District of Columbia or the United States Attorney General. He stated that it is “an affront to federalism and an expensive burden that has far outlived its usefulness.”

Pryor is vehemently and stridently opposed to equal rights for gays and lesbians. In an amicus brief filed before the U.S. Supreme Court in Lawrence v. Texas, Pryor equates private sexual conduct between same-sex consenting couples with “activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.” Further, Pryor defends sodomy laws, such as the Texas law attacked in Lawrence, because, even if not enforced, such laws instruct that homosexuality is objectionable. (The Supreme Court’s ruling in Lawrence strongly rejects the arguments of Pryor and other like-minded supporters. Please note Attorney General Pryor’s most-restrained statement on the Lawrence ruling–one questions whether Pryor would have shown nearly as much restraint were it not for his pending nomination!)

As Alabama’s attorney general, Pryor continues to abuse his position by utilizing state resources to directly and indirectly attack gay men, lesbians, bisexuals and transgendered (GLBT) Americans in his state and across the country. He links the state attorney general’s website only to vehemently anti-gay and right wing organizations, including the Family Research Council and the American Center for Law and Justice (ACLJ), which regularly bring lawsuit opposing GLBT rights. In contrast, his website does not make any links to groups that support GLBT civil rights. (See the web site’s “Other Links – Public Policy on the Web” section for the list of right wing organizations included there.)

Pryor is often contemptuous of opposing viewpoints, and frequently uses ridicule in his speeches, briefs and arguments against rights and freedoms under debate. His extreme positions on so many critical aspects of Americans’ individual rights seriously place in doubt his ability to maintain an open mind about these matters were he to be confirmed as a federal judge.

Your voice is needed to help insure that your Senators look closely at William Pryor’s anti-civil rights record. A vote on Pryor’s nomination is expected to take place the week of July 14th, so please act now by responding to WF’s action alert!

Take Action Now: Demand Fair Judges: Stop Bill Pryor

Other Information About Pryor:

Organizational Statements/Reports:

National Employment Lawyers Association

Alliance for Justice

Human Rights Campaign

People for the American Way

Editorials Opposing or Urging Caution on Pryor’s Nomination:

Baltimore Sun

Honolulu Advertiser

Los Angeles Times

New York Times (excerpt only)

San Francisco Chronicle

Washington Post

Recent News Articles

Judiciary committee delays vote on Pryor nomination (7/10/03)

Specter key to committee vote on Alabama AG’s nomination to court (7/10/03)

Nominee for U.S. appeals court is deeply religious, anti-abortion, pro state’s rights (7/08/03)

Pryor: Ruling makes Alabama law ‘unenforceable’ (6/27/03)

Pryor nomination draws Congressional heat (6/26/03)

Pryor says his beliefs won’t interfere with law (6/12/03)

NOW with Bill Moyers: A Justice for All? William Pryor’s Record: a compilation of Bill Pryor’s public statements, amicus briefs, and other representations of his position on various legal and political issues.

Workplace Violence In the Spotlight After Mississippi Killings

Wednesday, July 9th, 2003

Tuesday’s (7/8) tragedy in Meridian, Mississippi, where Lockheed Martin employee Doug Williams shot five of his coworkers and injured nine others before killing himself, again draws attention to the problem of workplace violence. When compared to other workplace safety concerns, incidents such as those in Meridian may appear relatively isolated and unpredictable, but the tragic consequences when disgruntled employees seek to harm their fellow employees lead everyone to look for ways to minimize the risk of these occurences.

Doug Williams, a 48-year-old white male, was by all accounts, an angry person, and someone that many considered to be a racist. He was said to be frustrated because he thought black people had a leg up in society, and angry that he had been passed over for promotions during his 19 years as a Lockheed Martin employee. He was known as a “hothead” who had used racial epithets and made threats against blacks, and recently offended coworkers after arriving at work wearing a white covering over his head that resembled a hood, which some thought resembled a Ku Klux Klan outfit. (See Washington Post article.) Two years ago, William’s behavior had come to the attention of company officials, after he angrily confronted a black coworker who complimented a white woman, telling the man that blacks had no business being with blond women and using a racial slur. The company suspended Williams and sent him to a psychological facility for two weeks of anger management counseling. Tuesday’s shooting spree happened after Williams stormed out of a required ethics and sensitivity training course, returning with a shotgun to target his coworkers. (See New York Times article.)

Unfortunately, incidents similar to the Meridian shooting spree are not so isolated as one would think. A compilation of workplace shootings prepared by the Washington Post shows dozens of incidents over the past several years, while another compilation by USA Today details over one hundred deaths in workplace killing sprees since 1986. Just one week prior to Doug Williams opening fire on his coworkers, Jonathon Russell, a manufacturing plant employee in Jefferson City, Missouri, killed three coworkers and injured five before killing himself. (See Kansas City Star article.) And these are only the most famous tragedies: a 1997 study by the National Institute for Occupational Safety and Health (NIOSH) found that an average of 20 workers are murdered each week in the United States. Clearly, the problem is a significant one that no employer can afford to ignore.

What can be done to stem the tide of workplace violence? Although their actions are certain to be second-guessed in the days ahead, Lockheed Martin officials undoubtedly believed that they were doing the right thing in addressing concerns about violence with Williams, between disciplining him two years aga and requiring him to undergo anger management counseling before returning to work, and scheduling ethics and sensitivity training sessions for all employees. And going to far as to terminate an employee and remove him or her from the workplace is not necessarily a solution, as historically several of the workplace incidents have involved fired employees who have returned to the company armed to avenge their firings. Yet coworkers claimed that there were unmistakable warning signs: Williams was “mad at the world,” and had previously spoken of being capable of killing. (See USA Today article.)

Experts say that it is critical not to ignore the typical warning signs, which include individuals fitting “[c]ertain personality profiles…irritable, intimidating, disregards rules, preoccupied with fire arms and even talking about killing people.” (See WLBT.com article.) Many of Williams’ coworkers were not so surprised at his actions on Tuesday, as he appeared to fit the classic stereotype of an angry person and disgruntled employee. However, not all workers display these personality traits–in last week’s Jefferson City killings, coworkers and law enforcement investigators remain baffled, as the killer, Jonathon Russell, by all accounts provided “no indication among the employees or the people at Modine that there was anything abnormal going on in his life.” Warning signs, if present, should certainly not be ignored or minimized, but they may not be present in all situations.

What about increased workplace security? While installing metal detectors and security guards might deter some violent incidents, this form of security is extremely expensive and beyond the means of many employers. Also, many security systems subject current and especially long-term employees to relatively minimal security checks, and thus would be unlikely to screen out employees such as Williams, a 19-year Lockheed employee. As one security expert noted, “You get to feeling pretty bad asking someone to strip down to go through security every day for 10 years. After awhile, you just say, ‘Oh, that’s Jim,’ and you let him through even if the machine beeps.” (See Clarion-Ledger article.)

The Occupational Safety & Health Administration (OSHA) strongly recommends that companies follow a “zero-tolerance” approach when it comes to workplace violence. In OSHA’s fact sheet on workplace violence, the agency recommends that all employers “establish a workplace violence prevention program or incorporate the information into an existing accident prevention program, employee handbook, or manual of standard operating procedures. It is critical to ensure that all employees know the policy and understand that all claims of workplace violence will be investigated and remedied promptly.” Yet a zero-tolerance policy also has limitations, as one expert notes: “Some people are going to say you need a zero-tolerance policy for violent threats, but that doesn’t tend to work too well. Co-workers may be reluctant to report Joe’s unusual behavior because they think he might be fired when he really just needs some help.” (See Clarion-Ledger article.)

We all grapple for answers when a tragedy like the one in Meridian occurs. While solutions such as workplace training, a zero-tolerance policy, identification of problem employees for counseling, and increased security may not work in every situation to deter violence, these kind of tragedies encourage both employers and employees to be increasingly vigilant for signs of violence in their own workplaces, and to take as many steps as appropriate to hopefully deter future occurrences.

Other Resources:

OSHA’s Workplace Violence Page

NIOSH’s Workplace Violence Page

AFSCME’s Workplace Violence Page

Wal-Mart: Doing the Right Thing? or Just a PR Ploy?

Tuesday, July 8th, 2003

Wal-Mart spokesperson Tom Williams says “We want all of our associates to feel they are treated with respect and valued, with no exceptions at all.” That is why, he said, the company recently announced that it would add sexual orientation to its company anti-discrimination policy. (See Seattle Times article.) Coming shortly on the heels of the Supreme Court’s rejection of sexual orientation bias when it overturned sodomy laws in Texas (see Lawrence v. Texas), the timing might appear to reflect the growing strength and influence of the gay rights movement. But given how beleagured Wal-Mart is right now on many other employment-related fronts, we can also wonder whether it is also a public relations ploy designed to boost the company’s image–a boost it surely needs at present, as many associates maintain they have not been valued and treated with respect by Wal-Mart.

Gay-rights advocates, already jubilant over the June 26 Lawrence decision, continued their rejoicing when on July 2, it was announced that Wal-Mart would add sexual orientation to its sexual orientation policy. (See New York Times article) Taking credit for the victory was the Seattle-based Pride Foundation, a gay rights foundation which had lobbied nearly two years for the change as part of a group of Wal-Mart shareholders advocating the change. (See Pride Foundation press release). Wal-Mart quietly announced the change in an internal letter to its 3,500 stores, and will ask store managers to convey the policy change to Wal-Mart’s over 1 million employees. Sexual orientation bias will also now become part of the company’s anti-discrimination and diversity training for employees. (See Feminist Majority Newswire article.)

With this move, Wal-Mart becomes the 9th of the top ten largest U.S. corporations to include sexual orientation in its anti-discrimination policy. (See Human Rights Campaign press release.) The lone holdout is Exxon/Mobil, which took a step backward at the time of the 1999 Exxon and Mobil merger by revoking Mobil’s already-existing sexual orientation policy and closing Mobil’s domestic partner benefits program to new employees. (See Equality at Exxon press release.) Wal-Mart’s benefit policy will not change, however; domestic partners of Wal-Mart employees will not be eligible for domestic partnership benefits, unlike employees at 7 of the top 10 Fortune 500 companies. (See HRC’s Fortune 500 Companies That Offer Domestic Partner Health Benefits.

Wal-Mart’s move definitely risked the anger of some of its rural, conservative constituency, which in the past it has taken several steps to appease. Some of its other recent corporate moves included an annoucement that the company has decided to stop selling three men’s magazines it said were too racy and to partially obscure the covers of four women’s magazines on sale in checkout lines, using U-shaped blinders to cover them. Wal-Mart has also historically refused to sell CD’s with labels warning of explicit lyrics. Wal-Mart has already been taken to task by conservative groups such as Focus on the Family and the American Family Association (AFA). (See Cybercast News Service article.) Stephen Crampton of the American Family Association (AFA) decried the move, saying “Just as Neville Chamberlain gave in to Nazi Germany’s outrageous demands, so Wal-Mart has capitulated to the radical homosexual agenda.” However, others praised the move, stating that with the Supreme Court’s Lawrence decision, that other corporations and government entities could be expected to follow suit. See New York Times article)

While Wal-Mart’s timing may not have had so much after all to do with the Lawrence case, as it was supposedly in the works for some time prior to the Supreme Court’s announcement of its ruling, one does wonder how much it has to do with the pending gender discrimination class action suit against Wal-Mart. (See February 10 blog entry for further information on the gender descrimination case against Wal-Mart.) On July 25, a federal court judge in San Francisco will announce whether the lawsuit against Wal-Mart will be allowed to proceed as the largest-ever discrimination class action, including an approximate 1.5 million current and former female employees. (See Fortune article.) As one commentator put it,

What is at stake, by Wal-Mart’s own admission, is its reputation as a company that treats its employees with dignity—a place where, as founder Sam Walton declared, there would be “respect for the individual.”

While that reputation is surely bolstered by Wal-Mart’s change to its anti-discrimination policy, that change may not be enough to overcome the effects of the pending class certification ruling, which will mean that enough evidence exists of corporate discrimination to allow the case to move forward collectively rather than individually. Wal-Mart’s spokespersons will really have their hands full at that point.

New Telecommuting Case Making Waves

Thursday, July 3rd, 2003

If you telecommute, or work somewhere that employs telecommuters, you will want to be familiar with a recent decision from the New York Court of Appeals, New York State’s highest court, involving an employee based in Florida but working for a New York employer. The case, Allen v. Comm’r of Labor, is said to be the first case of its kind, and as a result, will have a far-reaching impact on other telecommuters throughout the country. (See New York Law Journal story.)

Maxine Allen had worked for Reuters America, a financial information services provider, in New York (in Reuters Hauppage, Long Island office) for several months, before choosing to move to Florida when her husband changed jobs. (See New York Times article.) When Allen moved to Florida, Reuters allowed her to continue working for the company from a home office that Reuters paid to set up and maintain, covering the cost of a laptop computer and the additional phone line necessary for Allen’s work. (See Newsday article.) Reuters required Allen to be available during regular business hours, during which she would log into the Reuters computer system and perform the same computer troubleshooting work she did while previously employeed in New York. She would stay in touch with her supervisor daily via phone and e-mail, submit weekly status reports electronically, and only very rarely travel to New York for work-related reasons.

This long-distance arrangement continued for nearly two years, from July 1997 to March 1999, until Reuters decided to end the telecommuting relationship. Reuters offered Allen a job in New York, which she declined to accept. (See Associated Press article.) Following the termination of her employment, Allen applied in Florida for unemployment benefits. After Allen was initially found eligible for benefits of $275 per week, Reuters challenged the award, stating that Allen had voluntarily quit the company after Reuters had offered her employment (never mind that it was in another state!). After Allen’s case was appealed, the Florida system ultimately ruled that she was ineligible for benefits.

In the meantime, however, Allen was told by someone who worked for the Florida unemployment insurance office that given her situation, she might be eligible for benefits in New York, which were paid at a rate of $365 per week. Allen applied for and received benefits from the New York unemployment system for several months in 1999, stating that she had worked at her employer’s New York address. In October 1999, however, the New York Commissioner of Labor ruled that Allen was ineligible for benefits, and ordered her to return the benefits she had already received. She appealed this ruling and later had it overturned, as an administrative law judge found that Allen was eligible for benefits, as her work had been directed and controlled from New York. The employer and the state appealed this determination to the next highest level, the Unemployment Insurance Appeal Board, which overruled the judge and again denied Allen her benefits. Allen then appealed this decision, without legal representation, as far as she could–the New York Court of Appeals.

This court ruled that Allen was ineligible for benefits, and that she would have to repay all of the benefits that she had previously received. The basis for the ruling was the court’s determination that under the New York law’s “localization” test, Allen’s work was performed where she was physically present, Florida, rather than New York, where the company’s computer system that recognized her work was located. On this basis, Allen’s work was allocated to Florida’s unemployment system, and she was not eligible for benefits in New York. Part of the purpose behind the localization test is so that claimants seek benefits in the location that is most likely to be affected by their unemployment–the area where they live and are seeking new work.

The case put Allen, and other telecommuters who lose their jobs and/or the ability to telecommute, in a catch-22. Allen is not eligible for unemployment benefits in Florida because she is considered to still be employed in New York, and is not eligible in New York because she is considered to have lost her job in Florida. Granted, Allen could have kept her job if she had moved to New York, so in that case she is no worse off than any other employee who must move to keep his or her job; however, most employees who are unable to move are still eligible for benefits due to the elimination of their job locally.

One issue not addressed by the case, that may make a difference for future claimants, is where Allen’s employment taxes were paid. As her employer, Reuters was required to pay payroll taxes on Allen’s behalf, and must also pay into a state unemployment insurance fund. If Reuters continued to pay New York taxes on Allen’s behalf, and considered her an employee under the New York unemployment system, then the money it paid on her behalf for several years was wasted, as she was unable to collect. If the employer had paid into the Florida fund, then Allen should have been able to collect, as her ability to continue working in Florida for that employer was eliminated when her telecommuting arrangement was discontinued. At any rate, one of the two states should have been deemed responsible for her unemployment insurance coverage, and it is most unfair that Allen is required to repay the benefits she was originally awarded, even though there was no previous legal guidance on the subject.

This problem is only destined to continue, as more employees (including this one (Paula Brantner), who telecommutes for the San Francisco-based Workplace Fairness from a Kansas City office) enter into telecommuting arrangements. The problem may require changing unemployment law to recognize evolving workplace relationships, but a solution may be as simple as clarifying with your employer to which state your payroll and unemployment taxes are paid, and what will happen in the event the telecommuting arrangement is discontinued at some future point. One also wonders what would have happened to Maxine Allen had Reuters never contested her Florida claim, but I suspect her situation would have gone much more smoothly.

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