Outten & Golden: Empowering Employees in the Workplace

Archive for February, 2005

Class Action Bill Sails Into Law Without Labor Exception

Monday, February 28th, 2005

Class action lawsuits may not be the most critical problem facing our democracy, but you wouldn’t know that from what happened recently. On February 18, the President signed the so-called “Class Action Fairness Act” into law. This law will remove most class actions from state to federal court, which might not sound so bad until you realize that the effect of the bill will be to reduce, if not eliminate entirely, a number of class action cases. Why is this bill such a top priority? Because the lawyers who bring these cases don’t generally work for large corporations, and they by and large do not give money to those currently wielding the most power in Congress.

While there were efforts in the U.S. Senate to add an amendment excepting labor and civil rights cases from the bill, it was doomed to failure, as were all amendments, ultimately. There are two ways you can view this development. One, that it was just a procedural call: since no amendments were allowed, the vote on this particular amendment does not truly represent legislators’ views on these types of cases. The other view, however, is that it is clear that a majority of Congress views lawyers who bring civil rights cases just as they view the other kinds of personal injury lawyers this bill was designed to punished.

Where were the millions of workers potentially affected by the Class Action Fairness Act during this debate? There are over 15 million union members in the United States, according to the Bureau of Labor Statistics study released in January. I recently attended a conference bringing together the nation’s leading class action attorneys, sponsored by the Impact Fund. When those attending the conference were queried, it was clear that at least 15 million people are either already part of an ongoing class action case, or have been part of one in the past. This group of individuals is similar in size and scope to the number of unionized workers in the United States, yet we’re hardly tapping into that group at all.

How do you think the political debate around the Class Action Fairness Act would have been shaped if we had a movement of 15 million people behind it? I’m not necessarily talking active people: we know in unions, the vast majority pay their dues and collect their paychecks and benefits, and don’t otherwise participate in the affairs of the union, but the union speaks for them. What if politicians heard from just 1% percent of class members? That’s 150,000 people, which to legislators means millions of constituents.

While lawyers who represent workers may be vilified because their livelihood is coupled with their interest in seeing discriminatory practices end, it’s harder for our politicians to tell their constituents that their lawsuits are frivolous, when workers who have been through the harrowing experiences at issue know all too well just how false that is. While they may not be major contributors to political campaigns, workers must let their representatives know that they vote, and they are watching how their members of Congress vote on labor and employment issues.

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Flash in the Pan, or Threatening Trend: Workplace Smoking Restrictions

Thursday, February 3rd, 2005

If you follow employment trends, you’ve probably seen more than one story in the past two weeks about Weyco, an Okemos, Michigan company that recently adopted a no-smoking policy so strict that employees who refused to quit smoking and/or submit to a smoking test were fired after the policy went into effect January 1. For Weyco, the coverage may constitute its 15 minutes of fame, but for the rest of us, it has also been an opportunity to educate the public about how limited employment protections really are, and how intrusive employers may try to be.

When four workers at Weyco were fired in January for refusing to take a test to verify that they weren’t smokers, it was newsworthy. While Weyco is certainly not the first company to have employment policies discouraging smoking, its aggressive stance in actually forcing employees to either quit smoking or quit their jobs took many by surprise. “Can they do that?” was a common refrain. The fact that the answer may be a qualified “maybe,” instead of an unequivocal “no way,” is enough to give many pause.

What we’re seeing at Weyco demonstrates the convergence of three separate workplace trends: one that has been with us for some time, and two others of more recent vintage: employment-at-will; the astronomical rise of health care costs; and decreasing expectations of workplace privacy.

Employment-at-will:

Workplace advocates are all to familiar with the need to keep beating the “employment-at-will” drum. Put simply, the doctrine means employers can fire their employees for any reason, or no reason, unless the reason is an illegal one. Or, as I like to tell folks, “it’s not against the law for your employer to be a jerk.” Unless you’re a member of a union, a government employee, or have an employment contract, chances are that you’re one of the 60 million employees (3 out of 4 workers in the private sector, in every state except Montana) subject to the employment-at-will doctrine, and have little to no protection if your employer decides to be a jerk.

But isn’t discriminating against someone because they’re a smoker, or on the basis of what they do on their own private time, against the law? That depends on where you live. Twenty-nine states (and DC) have laws protecting smokers from being fired, or prohibiting discrimination on the basis of the use of “lawful products outside the workplace.” Michigan is not one of those states, so Weyco employees were out of luck; however, Weyco has a single employee in Illinois, who may not be fired or discriminated against in terms of compensation or benefits because of using lawful products outside of work.

Some ask, “do you think this will encourage more states to pass laws protecting smokers?” Nope. Smokers are one of the most politically unpopular groups that one could imagine right now, and the lobbying clout that Big Tobacco used to wield just isn’t what it used to be. The ACLU had some success in the 90’s in getting states to pass laws protecting workers, but it would be such an uphill battle now that even the outrage Weyco and other employers have and will generate is unlikely to be enough.

Rising Health Care Costs:

Weyco is hardly alone at attempting to rein its healthcare costs. Health care costs have risen dramatically during recent years, with a 13.9% increase in 2003 and a double-digit increase also projected when final 2004 data is analyzed. Larger employers have responded by reducing health care benefits for employees and their families, or have shifted health care costs to employees through increased employee contributions for premiums, higher co-payments and deductibles, and increased premium costs for family coverage.

Weyco claims that eliminating employees who smoke will save the company more than $4,000 a year in absenteeism, medical benefits, earnings lost to sickness or premature death, and other costs. While they don’t cite the source for that information, let’s admit that smokers do cost the company more to insure. Is is really the best remedy to fire the smoker? All Weyco has done is to shift the costs to someone else, and most likely that’s going to be the taxpayer.

If every employer adopted Weyco’s lead, then we’d have an astronomically high unemployment rate (of 25% or more, since as many as 23% smoke) , and our economy would grind to a halt. Unemployment insurance systems would collapse, all the smokers who need additional medical care would be unable to pay for it, shifting the burden to taxpayer-funded public hospitals, and the stress of being unemployed and broke is hardly conducive to encouraging any smoker to quit. There’s also nothing to keep Weyco from passing along any of those additional costs along to its employees who smoke: even most of the 29 states which forbid discrimination against smokers expressly allow employers to pass along any additional costs incurred to insure smokers. Smokers are already resigned to paying “sin taxes” in order to smoke, and it’s only logical that most smokers would choose to pay higher premiums than to be out of a job entirely.

Workplace Privacy Intrusions

Workers who think they have any measure of privacy left in the workplace should probably think again, since there’s not much left employers cannot do these days in the name of security and cost-cutting measures. While the “War on Drugs” is not solely to blame, our national approach to workplace drug testing sheds some light on how smoking restrictions are destined to evolve.

Following the passage of the federal Drug-Free Workplace Act in 1988, which requires government agencies and recipients of federal funds to certify that their workplaces are drug-free, many employers, both public and private, rushed to start testing their employees for drug use. Many of the same justifications offered by Weyco for its ban on smoking — absenteeism, medical benefits, earnings lost to sickness or premature death, and other costs –were cited. Employers have spent millions implementing testing for new employees, and now 62% of all employees are tested for drug use, even though the federal law does not require testing to be in compliance with the law.

There is no comprehensive federal law that regulates drug testing. Therefore, many states have enacted their own laws. Given the way the law has evolved in this area, employers generally have latitude to test applicants for employment, those in safety-sensitive positions, and those employees who have given their employers “reasonable suspicion” of drug use. Generally, companies cannot perform random testing of current employees not in safety-sensitive positions, who have not given their employers reasonable suspicion of drug usage.

These parameters are present in Weyco’s drug testing policy: employees suspected of drug or alcohol impairment, as certified by two members of management or the human resources department, as well as applicants for employment will be subject to testing. However, Weyco’s anti-smoking policy goes much further: all employees will be subject to random testing–not just new employees or those who are reasonably suspected of smoking. Weyco applies more rigorous testing standards towards a legal substance–tobacco–than it does towards illegal drugs.

Of course, what everyone who hears this wants to know: when will it stop? While sometimes invoking fear through raising the specter of the “slippery slope” is unwarranted, here it is a very real possibility. Could Weyco next seek to terminate its obese employees? those who do not exercise? those who practice unsafe sex? those who ride motorcycles, skydive, or otherwise engage in hazardous activities? All of those employees certainly risk raising Weyco’s health care costs, and in many cases, the law does not explicitly forbid such discrimination. How far will Weyco, and any other company seeking to emulate its example, go when it comes to interfering with its employees’ private lives in the name of cost-cutting? Few of us are so perfect that we never do something that is bad for our health, but should we lose our jobs over it?

Weyco says that employees have a choice whether to smoke or not. Setting aside for a moment that many if not most smokers are truly addicted, and the concept of volition no longer applies, what other choices that employees make is Weyco going to censor? Employees choose when and how to express their political views, and only a few states prohibit discrimination on that basis. Will employees who don’t follow the company’s party line also have to worry about termination? Will participating in political debates, rallies, and marches, or campaigning for a candidate, subject employees to losing their jobs?

Weyco’s response to these questions thus far has been that the law prevents them from discriminating against other categories of workers. Luckily, Michigan is the only state that specifically prevents discrimination on the basis of weight. (See Anti-Weight Discrimination Laws.) Otherwise, the absence of protections would leave Weyco’s employees vulnerable, as it does employees in the rest of the country. While some argue the Americans with Disabilities Act protects those who are morbidly obese due to a medical condition, those who are slightly to moderately overweight would have difficulty using the ADA to claim legal protection, since their condition does not rise to the level of a disability.

While a few misguided employers may choose to follow Weyco’s lead, hopefully reason will prevail, and American workers will not have to forfeit even more of their personal privacy in order to remain employed. Most companies will realize that losing talented employees will not pay off in the long run, even if it reduces health care costs in the short term. However, workers also need to realize that they don’t have as many rights as they think they do. Whether it’s fighting on behalf of laws to protect employees, such as just-cause and privacy protections, “voting with your feet” by finding a new job, or joining a union that will protect you from unfair termination, workers must fight back if they do not want to devote their lives, 24/7, to their employers. Otherwise, this is the kind of movement that will take hold, and there will be no turning back: it will be yet another type of privacy workers will have been forced to forfeit.

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