Outten & Golden: Empowering Employees in the Workplace

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

September 27th, 2005 | Paula Brantner

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

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