Outten & Golden: Empowering Employees in the Workplace

Archive for September, 2005

Hurricanes: The Worst Excuse to Take Away Workers' Rights (Not That One's Needed)

Tuesday, September 27th, 2005

In the weeks since Hurricane Katrina hit the Gulf Coast, and after Hurricane Rita recently paid a visit, we’ve had the opportunity to see how such disasters bring out the best — and worst — in everyone. Amongst many stories of courage and heroism you will also find examples of the worst behavior you might expect in such a crisis. When viewing how workers have fared, you will see many agendas being promoted, but a few in particular seem designed to hurt workers’ interests long after the floodwaters subside. This should come as no surprise, except that we’ve all come to expect better when a tragedy of this scope is involved.

Suspension of Davis-Bacon Act

As the federal government began the effort to rebuild the devastated areas affected by Katrina, many saw the necessary rebuilding effort as an opportunity to improve the financial prospects of displaced citizens. The hurricane’s devastation exposed the vast poverty in the Gulf Coast region, which in turn made the damage all the more significant, as the poor lived in the lowest-lying areas, had no resources to leave New Orleans, and even if they could have left the city, had no means to find housing in other areas. (See Associate Press article.) Surely the massive amount of unskilled labor needed for rebuilding could come from those displaced, addressing the poverty and rebuilding needs at the same time.

However, to no one’s surprise, the only people likely to improve their financial lot are those who own the private companies involved with the rebuilding effort. One way that was immediately made apparent was on September 8, when the President suspended the Davis-Bacon Act indefinitely in the affected regions, which requires contractors administering federal contracts to pay the prevailing wage rates in the area. Instead of ensuring that those who engage in the hard work of rebuilding the region are fairly compensated, the suspension of Davis-Bacon enables companies to pay no more than the minimum wage for the rebuilding effort. (See Rocky Mountain Collegian article.)

Those in support of the President’s move hailed it as an effort to cut bureaucracy and the costs of rebuilding. Rep. Marilyn Musgrave (R-CO), who had urged the move, responded “As our nation looks to rebuild the 90,000 wide area of devastation left by Katrina and the federal government spends over $60 billion, it is imperative that regulations that needlessly hinder construction are rescinded. Davis-Bacon mandates are excessive and add considerable costs and delay to projects critical to the backbone of the region. I commend him for today’s proclamation.” (See News of September 8.)

Labor groups assailed the President’s move, seeing it as an effort to undercut union contractors in the devastated region. Don Kaniewski, political director for the Laborers’ International Union of North America (LIUNA), called the move “a mean-spirited attack on the labor movement. The right wing has never been able to touch us in the legislative arena on Davis-Bacon. They saw an opportunity and took it.” (See The Hill article.) The President of the American Federation of Teachers, Edward J. McElroy, pointed out that the prevailing wages on the Gulf Coast were already among the lowest in the country—under $10 per hour in most job categories, and the President’s action means that workers on federally funded projects will be paid less than they were before the storm. (See AFT Press Release.)

Prevailing Wages – Davis-Bacon + Undocumented Workers = You Do the Math

Some argue that even without Davis-Bacon, the dispersion of workers from the region means that contractors will have to pay market wages in order to attract enough workers to participate in the rebuilding effort, and that those jobs will go first to those displaced by Katrina. Not so, according to those on the ground.

Right after Davis-Bacon was lifted for the region, the Department of Homeland Security announced that it will not apply sanctions toward employers who hire people unable to provide proper documentation. At first blush, this appeared to be a humanitarian move: those evacuating were unlikely to have made bringing all their documents a top priority, and with their homes gone, it wouldn’t be possible to produce that documentation any time soon. However, what now seems to be happening is that undocumented workers are pouring into the region, since word is out that “[t]here is a lot of work to be had on the Gulf Coast.” (See Seattle Post-Intelligencer article.)

Labor specialists argue that these “unauthorized” — undocumented or illegal — immigrants are the very ones willing to work for less than prevailing wages and worse than average conditions, particularly if they are not asked for documentation. As the P-I article points out “The more cynical in this country are convinced that the lack of action on immigration so far is easily explained: rich and powerful employers benefit from the status quo. The government’s actions after Katrina seem to further this view.” (See Seattle Post-Intelligencer article.)

Workers Fired for Hurricane-Related Absences from Work

Perhaps this isn’t a real suspension of rights, since workers can be fired for any reason or no reason (see at-will employment for more on that subject), but it’s still an abomination for workers to be fired because of hurricane-related absences from work. Yet it happened in a much-publicized case involving a grandmother forced to decide between caring for her 18-month-old granddaughter while the child’s parents were stranded in New Orleans or showing up for her job. In that situation, Barbara Roberts chose to be a grandma, but for that, she was fired for excessive absences. (See Washington Post article.) Roberts’ son-in-law pointed out that “People speak of family values, and I don’t see what’s a more central family value than a grandmother stepping up in this sort of situation.” Roberts’ employer, Positronic Industries, said that the company had made cash donations to relief efforts for Hurricane Katrina victims, but declined to discuss Roberts’ situation.

In Texas, where many citizens most recently were forced to evacuate due to Rita, there’s a law against this sort of thing. In Texas Labor Code Chapter 22 , entitled Employment Discrimination for Participating in Emergency Evacuation, it provides that:

An employer may not discharge or discriminate in any other manner against an employee who leaves the place of employment to participate in a general public emergency evacuation. Tex. Lab. Code Ann. sec. 22.002

An employee who suffers an adverse employment action because of a violation of this provision may recover lost wages and employment benefits. If the employee is discharged, he or she is entitled to reinstatement at the same or an equivalent position. Ch. 22.003.

(A hat tip goes to Margie Harris of the Texas Employment Lawyers Association, and formerly of the Workplace Fairness and NELA Executive Boards, for alerting us to this law.) While such a law wouldn’t help Ms. Roberts, who wasn’t participating in an evacuation herself, we hope it will protect some other employees who recently put their personal safety first and foremost. Perhaps the negative publicity generated by Roberts’ firing will shame more employers into accommodating their employees’ hurricane-related absences, as happened in Roberts’ situation: she got her job back. (See KATC News article.)

Katrina Scabs Hired at San Francisco Hospital

Everyone wants to help by hiring as many of those workers displaced by Katrina as they can: even, it seems, temp agencies supplying workers to replace striking employees. In an action that truly stretches the boundaries of humanitarianism, about a dozen evacuees from Hurricane Katrina are filling in for striking workers at California Pacific Medical Center in San Francisco.
The workers — among them janitorial staff and nursing assistants from the storm-ravaged gulf — are employed by a temporary employment agency, and will be displaced yet again when the strike ends. (See San Francisco Chronicle article.) As striking SEIU worker Beverly Griffith says, “Give them a real job. Hire them full-time. Give them a real sense of hope. They’re using them because it’s convenient.” You got that right, Beverly.

What About a “New Direction”?

Labor groups, troubled by all that has been discussed above and more, have called for a “New Direction.” As ratified by the AFL-CIO’s Executive Committee, the proposal calls for a “Coalition of Fairness in Federal Disaster Relief” made up of former Secretaries of Labor and HUD, as well as leaders from labor, religion and civil rights, to object to the suspension of prevailing wage standards and affirmative action requirements for federal contractors and to promote local hiring requirements. The proposal also asks for the U.S. Department of Labor and/or Congress to override President Bush’s Executive Order to restore the community prevailing wage provisions of the Davis-Bacon Act, and restore affirmative action requirements for federal contractors.

The proposal identifies some of the worst workers’ rights violations and offers some important potential solutions. Whether the AFL-CIO, in its currently weakened state, will have the political muscle to ensure any of these efforts move ahead, is unfortunately another matter. The proposal offers hope for those of us mostly troubled by what we’ve seen post-Katrina, and hopefully will not get caught up in some of the squabbles with the Change to Win Coalition. Regardless of our affiliation, we all should support a new direction for post-Katrina rebuilding: it’s critical for American workers, whether directly affected by the devastation or not.

More Information:

Salt Lake Tribune: Bush’s path of devastation through workers’ rights

John Roberts Nomination for Chief Justice: Bad News for Workers?

Wednesday, September 21st, 2005

As the nation reeled from the massive destruction caused by Hurricane Katrina, it was also newsworthy that the Chief Justice of the Supreme Court, William H. Rehnquist, passed away following a battle with thyroid cancer. John Roberts, having already been nominated to fill the seat of retiring Associate Justice Sandra Day O’Connor, was quickly nominated by President Bush for consideration as the new Chief Justice. Roberts’ nomination battle became that much more critical, as the individual selected as the next Chief Justice will have the ability to mold the Court for the next few decades. Since Roberts was initially nominated, more about his likely views on employment and civil rights issues has come to light, and should be of key concern to the U.S. Senate when deciding whether to confirm him.

Although Chief Justice Rehnquist had been battling cancer for some time, he had not retired from the Court at the end of this year’s Term as had been widely expected. Instead, Justice O’Connor announced her retirement, effective upon the confirmation of her successor. John Roberts was nominated as Justice O’Connor’s replacement, and his confirmation hearings were initially scheduled to begin this week, once Congress returned from its August recess. Many were calling for the hearings to be postponed, due to Katrina, when the nation learned of the Chief Justice’s passing. The President then quickly moved to announce his intention to nominate Roberts, who formerly clerked for the Chief Justice, for the highest slot on the Court. (See Austin Chronicle article.)

Prior to the investigation of Roberts’ record when he was nominated for Justice O’Connor’s slot, not that much was known about his views on employment issues. As a judge on the DC Circuit Court of Appeals, he has not yet had an opportunity to rule on many employment-related issues, and as a law firm partner, he could argue that he was representing the interests of his client in cases such as Toyota Motors v. Williams. Although there was speculation of course about how Roberts might rule in cases affecting workers, more information was clearly needed. (See blog entry of July 20, 2005.)

More light was shed on Roberts’ views when memos dating from his days as legal counsel for the Reagan administration were released. Roberts wrote internal memos urging President Reagan not to support any form of the proposed Equal Rights Amendment, questioning “whether encouraging homemakers to become lawyers contributes to the common good.” In 1983, Roberts criticized a report applauding state improvements in workplace sex discrimination. Ideas he criticized include a California requirement to consider affirmative action when laying off workers, and a California proposal to require equal pay to men and women in comparable state jobs. (See National Women’s Law Center memo.) Roberts also proposed reining in the Equal Employment Opportunity Commission (EEOC), claiming its civil rights positions were “totally inconsistent” with President Ronald W. Reagan’s policies. (See Bloomberg article.)

Roberts disavowed some of his early civil rights views in last week’s hearings. (See New York Times article.) However, many are unsatisfied with what they consider his evasive answers, and remain unconvinced that he will uphold civil rights protections. Today, Senate Minority Leader Harry Reid and Sen. Edward Kennedy announced that they will oppose the Roberts nomination, citing his civil rights views as key among their reasons for opposition. Sen. Reid stated that “It is now clear that as a young lawyer, John Roberts played a significant role in shaping and advancing the Republican agenda to roll back civil rights protections.” (See Fox News article.) Sen. Kennedy said, in announcing his opposition to Roberts’ nomination:

Based on the record available, there is clear and convincing evidence that Judge Roberts’ view of the rule of law would narrow the protection of basic voting rights. The values and perspectives displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress to pass laws to protect citizens in matters they care about.

(See Kennedy Floor Statement.)

In the few days left before Roberts’ nomination reaches the Senate floor, Senators will be considering their position on the nomination, and will be heavily lobbied by groups on both sides urging alternatively confirmation or rejection. The hearings did little to alleviate significant concerns about Roberts’ records on issues affecting American workers, so the question is whether issues central to workers will play a role in determining how Senators vote.

For Senators Kennedy and Reid, it is clear that those issues matter. It remains to be seen whether their colleagues will attach similar importance to Roberts’ early hostility to civil rights issues, and what many consider his failure to sufficiently distance himself from those early views.

For More Information:

NELA’s John Roberts page: http://www.nela.org/confirmingjustice.cfm (contains links to many Roberts resources and documents from other groups)

NELA’s Letter to the Senate Judiciary Committee: http://www.nela.org/advocacy/docs/SCt_Roberts_LtrSJC.pdf (This letter urged the Judiciary Committee to ask Roberts specific questions relating to his employment and civil rights views.)

Katrina's Impact on Workers: Catastrophic

Tuesday, September 6th, 2005

Like many Americans, I have spent the last week obsessed and devastated by the reports of Hurricane Katrina’s destruction of the city of New Orleans, as well as parts of Mississippi and Alabama. Even with Labor Day occurring, it was hard to think about anything else. While it seems slightly unseemly to worry about it when lives are still very much at stake, Katrina not only ravaged one of the world’s most charming cities, but devastated the workplaces of hundreds of thousands of workers. While our contribution pales in comparison to the organizations such as the American Red Cross which are providing massive amounts of critical assistance to the displaced, here’s a roundup of some of the employment-related issues that Katrina’s destruction raises.

Massive Unemployment: Katrina has disrupted the work of close to a million individuals along the Gulf Coast, whose workplaces either no longer exist, or cannot function absent electricity, water, food and their workforce. Many of those displaced could ill afford any disruption in their paychecks. Now that this many individuals are out of work, and may be unable to work for six to nine months or more, there will be a massive amount of unemployment.

One expert predicts that “The situation probably will propel area unemployment rates now in the single digits to the double digits in coming months – even when one accounts for employment gains from rebuilding efforts.” (See San Diego Union Tribune article.) Just last week, it was reported that the unemployment rate had hit a four-year low of 4.9%. (See WebCPA article.) However, this report was issued before the effect of Katrina could be felt, so we may see a four-year high (or worse) in the very next report.

Those who have reached safety are now in the process of filing for unemployment benefits: many spent the Labor Day weekend starting the process. Special Disaster Unemployment Assistance is available, which expedites payments to workers. (See KLFY article.) Those affected should call 1-866-4-USA-DOL (1-866-487-2365) for information on benefits.

Currently, individuals may receive unemployment benefits for 26 weeks. However, Congress may extend that time, and is likely to extend benefits for those affected by Katrina just as benefits were last extended post 9/11, especially since it is very unlikely that most workers in the hardest-hit areas will be able to reassume their positions.

Physical and Psychological Hazards to Workers: Those continuing to work on the front lines in rescue and cleanup operations face daunting toxic hazards. Their work takes place in what is being called a “toxic bathtub.” Between sewage, rotting corpses, and chemical contamination including fuels and oils from gas stations and submerged cars, paints and solvents from small businesses and household cleaners and pesticides from peoples’ homes, they are likely to feel the effects of their heroism for years to come. (See CBS News article.) While the most immediate danger is infectious disease, only time will tell what other maladies will plague both victims and rescuers. (See Voice of America article.)

While the psychological threat to workers may seem less immediate than the physical one, the trauma of the unprecedented disaster is likely to cause long-term psychological harm to many if not all of those on the front lines. Two New Orleans police officers, including the department spokesperson, already have committed suicide with their service weapons, while a third of the force may have abandoned their positions. (See Times Online article.) While New Orleans Mayor Ray Nagin has offered all officers expense-paid trips to Las Vegas to decompress after their extraordinary efforts, most have declined the offer. (See New York Times article.) For more information on the stress that these workers will suffer, see the Department of Veteran’s Affairs Katrina page.

Workers Helping Workers: While there are a number of extremely worthy charitable efforts, one is specifically targeted for working people: the Union Community Fund. Sponsored by the AFL-CIO, it is labor’s charity for working families and communities in distress, and is working with the labor federations in the affected states and with relief organizations to target help to workers who need it most. Thus far, the UCF is setting up Worker Centers in Houston, Pearl, Miss., and Mobile, Ala., making computers and phones available to help working people get information and post messages letting family and friends know they are safe. Unions are also sending off caravans loaded with relief supplies and getting crucial information to emergency responders about what they must do to stay safe while delivering aid. To help the UCF meet its $500,000 fundraising goal, use this secured donation link: Hurricane Katrina Relief Fund.

This disaster will truly test the resiliency of the American workforce. Once the evacuees’ survival has been assured, let all of us do what we can to ensure that those who need and want to work are able to do so as quickly as possible. Between employers hiring and housing the evacuee workforce, and government agencies streamlining the aid process, workers will be able to actively participate in rebuilding their lives.

More Information:

Wall St. Journal: Employers Struggle to Pick UpThe Pieces After Katrina
USA Today: Hard-Hit Employers Improvise to Get Going;
States Gear Up to Provide Jobless Benefits
MSNBC.com: Impoverished Evacuees Begin Looking for Work

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