Outten & Golden: Empowering Employees in the Workplace

Archive for October, 2005

North Country: Sometimes You Can't Make It On Your Own

Tuesday, October 25th, 2005

What do the band U2 and the movie North Country have in common? Even when you count lead singer Bono’s commitment to social consciousness, the answer is not that much, except for the fact that I saw them both in the past week. But after having one of U2’s most recent hits embedded in my brain after the concert, I think it’s a good summation of the theme of North Country, a film about the nation’s first sexual harassment class action: Sometimes You Can’t Make It On Your Own. And both are highly worth seeing.

When Bono and company visited our nation’s capital, politics was on the mind of the man rumored to be in the final running for this year’s Nobel Peace Prize. Whether it was U2’s classic anthems “Pride (In the Name of Love)” and “Sunday Bloody Sunday,” Bono’s meeting with President Bush while in town, or asking the concert audience to sign up via cellphone for the singer’s ONE Campaign to combat AIDS and extreme poverty, there were constant reminders of the need to pay attention to what’s going on the world around us. Bono wasn’t going to let the audience forget that, and his tireless activism speaks even louder than his band can sing. (See Reviews “I Have a Brother,” and U2, Saving Its Thunder For First.)

One of U2’s singles from its latest release, How to Dismantle An Atomic Bomb, third on the album and third on the set list at last week’s concert, is “Sometimes You Can’t Make it On Your Own.” While the lyrics chronicle Bono’s relationship with his father, who passed away in 2001, it’s also a fitting summation for the movie North Country, starting Oscar-winning actress Charlize Theron, as the movie’s protagonist, Josey Aimes.

The employment lawyers among us will also recognize that it parallels the story of our nation’s first sexual harassment class action, Jensen v. Eveleth Taconite (a case with “a long, tortured, and unfortunate history,” according to Judge Lay, who wrote the 8th Circuit opinion) with the female plaintiffs represented by NELA member firm Sprenger + Lang. Some may have even read the book upon which the story is based, Class Action: The Landmark Case that Changed Sexual Harassment Law, by Clara Bingham and Laura Leedy Gansler (although the movie is a fictionalized account, since the plaintiffs chose not to sell the rights to their story.)

Josey Aimes, after fleeing an abusive marriage with her two children, returned to her childhood home in northern Minnesota’s Iron Range to live with her parents, who were none too happy to take her in. Eager to escape their censure and to make it on her own, she takes a job, at the urging of her friend Glory (played by another Oscar winner, Frances McDormand), at the local mines. The work was hard, but dealing with her male coworkers, recently forced to accept female colleagues at the mine for the first time, was even harder.

The movie is rated R, for some graphic scenes of sexual harassment and rape, but those scenes were necessary to convey the horror of what Aimes and her coworkers suffered. After enduring repeated and vicious harassment, Aimes started to fight back. She first thought she could resolve the problem internally (and such efforts are now a legal requirement in most situations), but like many others, she found no support from company managment, and ended up being targeted for retaliation. She ultimately turns to hometown hockey hero turned lawyer (played by Woody Harrelson) to take legal action.

Some of the traditional forms of support than other plaintiffs can count on were not available to Josey Aimes. She was single, and her father, who also worked at the mines, was disapproving. Her kids were embarrassed by what was happening to her — especially the public airing of her sexual past. And the support you would think she could count on — that of other women enduring similar harassment — was hardly the sisterhood you might expect. The others were fearful for their jobs and willing to lie to save them, given the dearth of other similar opportunities in the area. The union, dominated by its male membership, was also unwilling to support Josey and the other women, despite the best efforts of Josey’s friend Glory, who was the only female union representative.

Without trying to give too much away (although I suspect you can guess how it ends), it is only when Josey is able to attract the support of others, through her own tenacity and her lawyer’s persuasiveness, that she is able to succeed. It’s obviously a strong testimony to the power of a class action case. But perhaps it’s also a subtle indictment of the difficulty of bringing an individual case, when that involves taking on not only a powerful employer, but scared coworkers dependent on their employer to survive. And whether you have no union, or at best, a completely ineffectual union like Aimes was so unfortunate to have, going it alone is isolating and much more difficult than having others on your side.

Not every case is a class action, of course. And not every case will be as hard fought as the one from the Minnesota mines. But anyone inspired enough by Josey’s story to themselves consider fighting back should remember “Sometimes You Can’t Make it On Your Own.” It certainly won’t hurt to have your friends, your family, your coworkers, and your lawyers on your side, because even then, you’re up for a tough battle.

As Theron said in a recent interview, “It’s very easy to sit in our comfy environment and say, ‘I would fight like Josey.’ But would you, really? Would you fight for, like, 14 years when everybody’s ostracizing you and saying you’re a slut and a nut and crazy and you asked for it and your children are being beaten up in school? That, to me, is incredibly brave.” (See San Francisco Chronicle article.) This film salutes the bravery of the women of the Iron Range, and ultimately all those who have fought back against sexual harassment, while giving those who haven’t experienced this level of egregious workplace conduct a flavor of what it’s like.

More Information:

Workplace Fairness: sexual harassment

North Country movie reviews

Minnesota Lawyer article: Interview with Paul Sprenger, who represented the Minnesota plaintiffs.

Slate article: Niki Caro – The director of North Country talks about sexual harassment (and if you haven’t seen Caro’s debut film, Whale Rider, you’ve missed a great flick!)

Stand Up: A Campaign to End Sexual Harassment and Domestic Violence: an activist campaign inspired by the movie

Is More and Faster Work Better Work?

Monday, October 17th, 2005

We all want to figure out how to do more work in less time. Why is that? In days past, it meant you were a more valuable employee, and could expect more wages and advancement. Now, it may mean that you want to spend more time with your family, or have room for a social life, hobbies, or community involvement. Or, you may not have a choice if you want to keep your job, as many companies are laying off workers and expecting those who remain to work harder. New research is likely to result in even more efficiency, but to what end?

In this weekend’s New York Times Magazine, the article “Meet the Life Hackers” explores in fascinating detail how technology has changed the way we work. However, as many of us know, our work is so full of technological distractions that some days, it’s impossible to get anything done. The article ponders: “If high-tech work distractions are inevitable, then maybe we can re-engineer them so we receive all of their benefits but few of their downsides. Is there such a thing as a perfect interruption?”

According to the article, in the 21st-century office, multitasking has become a way of life: “Corporations seized on this as a way to squeeze more productivity out of each worker, and technology companies like Microsoft obliged them by transforming the computer into a hub for every conceivable office task, and laying on the available information with a trowel.” This isn’t all bad, however: juggling so many tasks and relationships at once makes us feel needed and desired, drained yet exhilarated. (See New York Times article.)

But all these interruptions are problematic: research shows that when you are interrupted, it takes 25 minutes to cycle back to your original task. Literally, you may forget what task you were originally pursuing. In fact, 40 percent of the time, research shows that you will wander off in a completely new direction when an interruption ends, “distracted by the technological equivalent of shiny objects.”

For researchers, the challenge is to find a way to minimize the disruptions while maintaining the sense of connectedness and control. (Ever turned off your e-mail or held all your phone calls for a while to get something done that requires intensive focus? You may work more efficiently, but there’s still the lurking worry that you’re missing something important.)

The kind of research profiled in the “Life Hackers” article may indeed lead to more productive workplace habits, as it’s something that pretty much anyone who works in an office and uses a computer cares about. But who will benefit from your increased productivity? Most likely, it will be your employer, and not necessarily you. Wages are no longer keeping pace with productivity gains, so working harder doesn’t necessarily benefit you — it benefits your employer.

Thinking about these issues is a good way to prepare for next week’s “Take Back Your Time” day, October 24, on the 65th anniversary of the passage of the 40-hour work week. Sponsored by the group of the same name, the day a time to acknowledge that “millions of Americans are overworked, over-scheduled and just plain stressed out. “

  • We’re putting in longer hours on the job now than we did in the 1950s, despite promises of a coming age of leisure before the year 2000.
  • In fact, we’re working more than medieval peasants did, and more than the citizens of any other industrial country.
  • Mandatory overtime is at near record levels, in spite of a recession.
  • On average, we work nearly nine full weeks (350 hours) LONGER per year than our peers in Western Europe do.
  • Working Americans average a little over two weeks of vacation per year, while Europeans average five to six weeks. Many of us (including 37% of women earning less than $40,000 per year) get no paid vacation at all.

(See Take Back Your Time website.)

The group suggests a variety of ways that you can observe Take Back Your Time Day, such as: spending time with family and friends, organizing events on college campuses, workplaces, union halls, and places of workship, and encouraging discussions about how to reclaim the 40-hour work week. (See TBYT Press Release.) The group also supports an ambitious policy agenda, proposing laws to improve and protect family, sick, and vacation leave, eliminate mandatory overtime, and better support part-time work.

Here are a few other ways, suggested by Money Magazine’s Jean Chatsky, that you can take more control of your more productive time:

  • Stop measuring productivity in hours: focus on what you’ve accomplished, not how much time you spent at the office.
  • Get a life: have a reason to leave the office on time
  • Turn off the technology: like the Life Hackers tell you — stop being interrupted all the time and make technology work for you
  • Use business trips to regroup: turn your trips into mini-vacations, and use as much of your time away as you can to relax
  • Make your schedule flexible: work from home occasionally if you can, and show your bosses that you can get more done at home
  • Ask your company to help: are there company policies that will make you and your coworkers more productive?
  • No excuses: Squelch that inner nag and take a real vacation: what good is all the time you do earn to relax and recuperate if you don’t take it?

(See Making Time for Time Off.)

Until the experts figure out for us how to have the perfectly productive day, it’s up to us to squeeze out more time of each day. But it should be for ourselves — not just for our employer’s benefit. In planning for next week’s “Take Back Your Time” day, think about how you can reclaim just a little bit of sanity in today’s hectic working life.

Doing the Right Thing Without Laws to Require It

Tuesday, October 11th, 2005

Given the current leadership in Washington, it’s not likely that we’re going to see too many laws providing more protection to workers: instead, we’re mostly seeing efforts to scale those back. But even without specific laws in place, there are corporations out there attempting to do right by their employees. While there’s the obvious point to make — that it obviously coincides with their business interests to do so — unfortunately there are enough companies out there that don’t seem to get it that makes these efforts still noteworthy.

IBM Announces No Genetic Testing of Employees

IBM made headlines this week when it announced that it pledged never to use genetic data to screen its employees and applicants for hiring or in determining eligibility for its health care or benefits plans. Experts in this area say that the I.B.M. pledge to its more than 300,000 employees worldwide appears to be the first such move by a major corporation. (See New York Times article.)

IBM corporate blogger Todd Watson says of the decision:

We believe there is ample reason to plan ahead and develop policies and practices that appropriately balance the beneficial use of such information with respect for individual preferences and protection against the harmful use of such data. That means that public policy, private-sector leadership and individuals must work together to create a non-discriminatory environment that is needed to enable continued advances in healthcare and medicine.

(See Todd Watson blog, entry of Oct. 10, 2005).

IBM’s chief privacy officer, Harriet Pearson, has this to say: “Genetic information comes pretty close to the essence of who you are, it’s something you can’t change. It has nothing to do with your employment, how good your contributions are, how good of a team member you are, so making a policy statement in this case is the right thing to do.” (See USA Today article.)

Certainly, the move makes sense for IBM from a business perspective. As a Business Week analysis of the article points out, “Big Blue is a big player in medical-information technology, offering a variety of computing technologies for medical and pharmaceutical research….IBM knows that if people think medical information will be used against them, they may resist getting the tests its clients are generating. And that could hamper growth of a key market.” (See Business Week article.)

While IBM blogger Watson points out that “30-plus state legislatures in the U.S., as well as the U.S. Congress, are considering the enactment of Federal genetic non-discrimination legislation,” we have unfortunately not yet seen the critical mass of legislation that would legally require more companies to follow IBM’s lead. Although the U.S. Senate unanimously passed the Genetic Non-Discrimination Act, the bill has become stalled in the House.

While workers still need to urge the House to take action to make genetic discrimination against the law, workers also need to act locally, by encouraging their own employers to follow Big Blue’s lead. Otherwise, much of the scientific progress made in the last decade in mapping the human genome and identifying the source of many genetically–linked conditions could be stalled because people would be afraid of getting the information that would otherwise be of great advantage to them for medical purposes.

Companies Not Behaving Badly

Gretchen Morgenson, the New York Times reporter who is most well-known for her annual survey of corporate pay (which unfortunately these days is a chronicle of the worst examples of corporate greed and runaway CEO salaries), recently drew attention to companies who provide more praiseworthy examples of officer compensation practices.

Here’s some of the shifts that Morgenson’s article highlights:

The shifts that some companies are making include salary reductions for chief executives, a greater focus on performance-based stock awards and a heightened interest in limiting the dilution to existing shareholders from stock option grants. Some companies have even begun to monitor the pay gaps between those at the top of the ladder and those down below; a couple of standouts are making clear to their shareholders just how the corporate jet is used.

(See New York Times article.)

For example, Tidewater Inc., a supplier to the offshore energy exploration industry (which is certainly doing well these days), bucked the tide by reducing the salary of its chief executive, Dean E. Taylor, from $500,000 in 2003 to $470,000 in 2005. Thomas P. Raimondi Jr., the chief executive of the MTI Technology Corporation, a small data-storage company, saw his salary drop from $425,000 in 2000 to $337,000 last year.

Staples, the office supply company, says about its culture: “Staples is a frugal company. Our C.E.O. flies coach; he drives a late-80’s Toyota (mine’s even newer than that); there are no executive parking places. It’s the culture that Staples operates in.” Now that was easy. Why aren’t other companies following this lead?

Morgenson points out, “Although these companies remain a distinct minority, any enterprise bringing more reason to the insanity that is executive pay surely merits a moment of applause.” Let’s pause for a round of clapping for IBM, Tidewater, MTI, Staples, and the other companies Morgenson highlights — they shouldn’t deserve that moment, but in the world we live in, they’ve certainly earned it.

And we share Morgenson’s hope that “[i]f increasing numbers of companies rein in executive pay and perks, maybe, just maybe, those that continue to dispense outrageous fortunes to their executives will be shamed into acting more responsibly. It’s a reach, sure, but one can always hope. “

More Information:

Workplace Fairness Action Alert:
Stop Genetic Discrimination By Employers and Insurers

Coalition for Genetic Fairness

Workplace Fairness: Short-Changed:
profits before people: the income gap

Post-Hurricane Opportunities for Employers to Do Good: Leave Time

Wednesday, October 5th, 2005

While last week, I spoke about some of the ways the hurricane-spawned disaster in the Gulf Coast region was being used to harm workers, there is not universal cause for pessimism. There are also many positive things that employers and their employees have been doing and continue to do, both to directly support those affected by the storms, and to enable their employees to lend their support as well. Chief among those efforts is allowing employees to take leave (or its pay equivalent) to assist hurricane victims.

Directly Supporting Employees Who Volunteer

Many individuals, when hearing about the disaster or learning of its impact on family and friends, found their first impulse was to go to New Orleans or other affected areas and directly assist those affected. It is clear that many of the organizations providing disaster relief, such as the American Red Cross, could not have accomplished the massive amount of assistance provided without thousands of volunteers from across the country.

Since many of those individuals have jobs, it’s also clear that a number of American employers supported the effort by providing leave, whether paid or unpaid, to those choosing to assist with the relief effort. The Family & Medical Leave Act does not require employers to offer leave, even unpaid leave, to assist with a disaster. Even in a situation where an employee is assisting a family member, unless the family member being assisted has a medical condition, there is no right to leave.

Despite the lack of any legal requirement, however, according to a recent survey, nearly 20% of employers are allowing employees to take leave for the purpose of assisting those affected by the storm. (See Syracuse Post-Standard article.) In a survey recently conducted by the Society for Human Resource Management, about 8 percent of the 340 employers surveyed were providing paid time off to employees helping with relief efforts, while another 11 percent were allowing workers to take unpaid leave.

Converting Leave Time to Cash

Even if you can’t travel to the Gulf area (or if you work for the remaining 80% of employers who are presumably not allowing leave to be taken), you may have a bank of leave time that you never get a chance to use. Perhaps you’re healthy and never take any sick days, or you don’t get around to taking your full vacation time each year. You may have time but no money accumulated to help, or you’d like to do more than you’re already doing. If you would like to use some of that leave time to help victims of Katrina and Rita, the IRS is making that possible — with your employer’s cooperation. (See Monterey County Herald article.)

Through the end of 2006, the Internal Revenue Service will allow employers to deduct as a business expense cash payments made to a qualified non-profit organization assisting victims, when those payments are made pursuant to a leave donation program. Here’s how it works: you tell your employer that you would like to donate some of your accumulated leave. Your employer then makes a cash payment equivalent to your salary for the donated time. (For example, if you make $10 an hour, and donate one day (eight hours) of leave, your employer would need to make an $80 payment.)

Your leave balance is reduced by the donated amount, and the employer can deduct the donated amount (as well as any amount it chooses to match or donate) as a business expense or charitable deduction. You don’t get taxed on the amount you would have been paid otherwise, but you also cannot claim the amount as a personal charitable deduction: the money is considered the employer’s donation for tax purposes. Your employer also does not have to pay employment taxes (as it would otherwise have to do if you took the leave time normally) on the amount donated through this process.

All of this, of course, is dependent on your employer allowing this use of accumulated leave. The employer is not required to set up any special program or obtain IRS permission, and it can be operated in conjunction with current payroll and accounting systems. It’s a relatively painless way for both employers and employees to work together to assist hurricane victims, that doesn’t disrupt the workplace, so it seems like most employers would have an interest in participating. For more information, see the IRS FAQ page on leave donation.

How you use your leave time is up to you, once you have permission to take it. There are undoubtedly many employees out there who have donated their vacation time without obtaining permission for this specific purpose. However, employers who specially facilitate their employees’ efforts to rebuild the region by permitting leave to be used deserve praise. And now that the IRS has announced the leave donation program, there is no reason why any employer cannot do their part, as they can now reap the benefits of their employees’ generosity.

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