Outten & Golden: Empowering Employees in the Workplace

Archive for November, 2005

Get Pregnant. Lose Your Job. Welcome to Catholic School Reality.

Wednesday, November 30th, 2005

You might think that employers these days are way too subtle to fire a female employee for getting pregnant, and admitting to that as the reason. But you’d be wrong, especially as it relates to Catholic schools. The latest in what has been a string of cases involving female teachers at Catholic institutions is unlikely to be the last, as courts grapple with whether it is permissible for religiously-affiliated institutions to fire teachers who do not uphold the Catholic principle of abstaining from premarital sex. The reality that most institutions focus solely on pregnant women (who alone are capable of publicly manifesting their non-compliance) may ultimately doom those institutions that take such punitive steps, as it is clearly sex discrimination to punish only women who engage in premarital sex.

Michelle McCusker, a 26-year-old pre-kindergarten teacher in her first year of employment at the St. Rose of Lima School in Rockaway Beach (Brooklyn, New York) became pregnant, and did not intend to marry the child’s father. After she safely passed her first trimester, she informed the principal at her school about her pregnancy, who, according to McCusker, “made it seem as if it was fine.” (See Chicago Tribune article.)

Two days later, however, she found out that it was not so fine with school officials, as McCusker was fired for violating the contract she signed with the school to “convey the teachings of the Catholic faith by his or her words and actions, demonstrating an acceptance of Gospel values and the Christian tradition.” (See Knight Ridder article.) The school acknowledged the quality of McCusker’s job performance in her October 11 termination letter, writing, “Your teaching ability and love of your children was of a high degree of professionalism.”

After losing her $30,000-a-year job and health insurance, McCusker is living with her parents on Long Island and working as a substitute teacher in city public schools. She has also chosen to fight back and challenge her firing. The New York Civil Liberties Union (NYCLU) is representing Michelle in her fight against the school, its leadership and the local Catholic diocese. (See NYCLU Press Release.) NYCLU has filed a complaint on McCusker’s behalf with the Equal Employment Opportunity Commission (EEOC), a prerequisite to filing a lawsuit.

On what basis? you might ask. Doesn’t a Catholic school have the right to hire only those teachers who voluntarily agree to uphold Catholic principles? And shouldn’t McCusker, if she isn’t willing to live up to those principles, just find a job somewhere else? The key to McCusker’s case is whether her firing constitutes sex discrimination. How does the school know that McCusker was engaging in premarital sex? (Let’s assume that St. Rose of Lima’s teachers aren’t beating down the principal’s door to tell her the intimate details of their private lives.) It’s only because she is a woman who got pregnant. Men, who can’t get pregnant, and women who don’t get pregnant don’t outwardly manifest any signs of their so-called transgressions.

McCusker is not alone in pointing out the irony of how she is upholding other, and some would argue more important, Catholic principles, by not aborting her fetus (and possibly not using birth control, although McCusker’s private life has already been invaded enough without having to disclose that detail.) McCusker, at the press conference announcing her battle against the school, stated, “I don’t understand how a religion that prides itself on being forgiving and on valuing life could terminate me because I’m pregnant and am choosing to have this baby.” (See McCusker statement.) Eileen Moran of Catholics For a Free Choice also pointed out, “Ironically had she been a student in a Catholic institution, and a pregnant single woman, Church authorities would have counseled her, indeed may have even pressured her, to continue her pregnancy. Yet, as her employer, in spite of all the official pronouncements of being pro-child, pro-parent, and pro-family, St Rose fired her.”

The principal, when firing McCusker, said that she knew McCusker was “doing the right thing by having the baby, that she “understands that we live in a different century,” and “wished there could have been a different outcome.” (See McCusker statement.) However, she was overruled by her superiors, whose official position has been that “This is a difficult situation for every person involved, but the school had no choice but to follow the principles contained in the teachers’ personnel handbook,” according to diocese spokesman Frank DeRosa. (See Knight Ridder article.)

NYCLU has previously been successful in obtaining a favorable settlement in favor of a woman fired by a religious charity once becoming pregnant. In 2003, it represented the director of an after-school program who was demoted to a position involving no student contact after she became pregnant. After the EEOC found that the charity engaged in sex and pregnancy discrimination, NYCLU was able to negotiate a settlement that forced the charity to adopt an employment policy that prohibited discrimination on the basis of marital status or pregnancy. They are asking St. Rose to adopt a similar policy for its employees. (See NYCLU Press Release.)

While some might feel that St. Rose or any other Catholic school has no business terminating employees who become pregnant, their ability to do so is relatively unrestricted, based on the First Amendment’s religious protections. If St. Rose can show that they take similar steps to root out all premarital sex, and are equally as likely to fire male teachers who impregnate their female partners, or all teachers who engage in premarital sex regardless of whether pregnancy is involved (which might be rather interesting considering the Church’s prohibition on birth control), then its actions against McCusker will not be discriminatory. Courts are generally loath to restrict a religious institution’s attempt to enforce its values in the workplace.

However, as is often the case, pregnancy makes unmarried female teachers an easy target, so it is relatively unlikely the school is engaging in the detective work necessary to root out all moral evil as defined by Catholic doctrine. If that is the case, then it will be considerably easier for McCusker to show that she was discriminated against. Then, perhaps other teachers, if not McCusker herself, will be able to face pregnancy as single mothers without the added worry that they will have to face pregnancy and childbirth without any health insurance. We can also hope that McCusker’s time in the spotlight, with the resulting invasion of her privacy, will lead to new employment with an employer more eager to treat its employees fairly.

More Information:

Workplace Fairness:
pregnancy discrimination
marital and parental status discrimination
sex/gender discrimination
religious discrimination

Workers Win Their First Case Before the Roberts Court

Tuesday, November 15th, 2005

In a case that perhaps attracted more attention than usual because it was Chief Justice Roberts’ first oral argument and participation in an opinion, workers recently scored a unanimous Supreme Court victory in the case of IBP v. Alvarez. While workers probably shouldn’t expect too many unanimous victories from the Roberts Court, once in a while it’s nice to have one that the Justices view as a no-brainer. While ten or fifteen minutes a day of previously unpaid work time may not sound like much, over time, it can add up to a significant amount, for which workers deserve their full compensation.

On October 3, 2005, the first Monday in October and the traditional start of the U.S. Supreme Court’s new term each year, the excitement was running high: the newly confirmed Chief Justice John Roberts would be presiding over his first oral argument. Unlike the abortion and federalism cases that were the subject of his confirmation hearings, the case was about the right of workers to get paid for their work time, as required by the Fair Labor Standards Act.

The Court heard two cases, involving the same issue: when does the work day start for workers required to wear protective gear and walk a considerable distance between the area where they put on the gear, and the production floor where they begin working? In IBP v. Alvarez, the workers in a meat processing facility had to wear “outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass armguards, and special gloves. ” Getting dressed for the work day clearly wasn’t as simple for these workers as knotting a tie or pulling up stockings, and all that special clothing and accessories had to be stored in a locker room away from the shop floor. The lower court in this case held that the workers were entitled to be paid for both the time spent dressing (as long as it was special protective gear and not just hairnets, earplugs and boots) and the time spent walking from the locker room to the production floor.

In Tum v. Barber, the other case at issue, the workers in a poultry processing plant also wore a variety of types of special protective gear, but were not paid until clocking in at the doorway to the production floor. A jury in that case ruled that the time workers actually spent putting on their clothing was so minimal, that even though the law requires that it be considered work time, it was not enough to warrant compensation. (The lower court had excluded evidence of their walking time.) Given that essentially the same issue came up in both cases, with different results, the Supreme Court’s ruling would establish a rule applicable to everyone.

The case involved interpreting the Fair Labor Standards Act (FLSA), the federal law which requires employees to be paid for their time worked, an amendment to the FLSA called the “Portal-to-Portal Act,” and regulations established by the Department of Labor interpreting the law. The question that the Supreme Court would have to answer is whether wearing the special protective gear was so “integral and indispensable” to the work that it could not be separated from the work itself, so that once the gear was on, the workers were on duty, even though they might then have to walk or wait before performing specific work duties on the production line. Or was it to be considered “preliminary or postliminary” to the principal work activities, so that workers did not have to be paid until actually performing production work?

On November 8, a little over a month since the case was heard, the Roberts Court issued its first opinions. (See Associated Press article.) In the Supreme Court’s unanimous opinion, written by Justice Stevens (who announced that the opinion was “remarkably interesting” as it was released), the Court ruled that the first principal activity of the work day was donning the special protective clothing, so that workers should be paid the entire time that they are wearing the protective gear. Any walking or waiting that occurred after the clothing was on should be paid time, while any walking or waiting that occurred before the clothing was on should not be paid time.

While this case may not affect those who wear their uniforms to work, only have to throw on an apron, or who don’t wear uniforms at all, for those who spend ten or fifteen minutes each day suiting up, it will be welcome relief. Since it’s not safe or permissible to work without the required gear, that time is clearly for the employer’s benefit and part of the work day. In an environment where it seems that workers are losing ground in terms of giving time back to their employers (checking e-mails and taking work-related phone calls at home, forgoing vacation and sick time, even having bathroom breaks monitored), every last minute helps, both in terms of getting paid and/or reducing the length of the work day. Now workers in production facilities, depending on the layout of the plant and the time needed for dressing, might only be on the production floor for 7 1/2 hours of their 8-hour shift.

It’s also a welcome sign that even the more conservative members of the Court recognize that some laws protecting workers remain vital and strong. It certainly didn’t hurt that the Administration was on the workers’ side in this case, but even still, we’re not likely to have that many unanimous decisions in favor of workers from this Supreme Court, regardless of the outcome of Samuel Alito’s nomination for Justice O’ Connor’s seat on the Court. While it seems inevitable these days that judicial interpretation has become politicized, especially as it relates to the rights of workers, it’s nice to know that laws originally passed in 1938 (the FLSA) and 1947 (the Portal-to-Portal Act) still maintain their vitality.


More Information:

Workplace Fairness: what is “work time?”

National Employment Lawyers Association: Tum/Alvarez amicus brief (NELA’s amicus (friend of the court) brief was supported by a grant from Workplace Fairness).

International Labor Communications Association: Justice Roberts Hears Two Work-Related Cases

Goliath is Reeling: Not a Good Time to Be Wal-Mart

Tuesday, November 8th, 2005

The retail juggernaut known as Wal-Mart is not having a very easy time of it these days. Reeling from the release of some very damaging internal memos, and gearing up to combat a new documentary that chronicles Wal-Mart’s role in bringing down wages and working conditions, the company has been forced to establish a PR war room. Is it really just because they’re the biggest that everyone is aiming to bring them down? Or are they really just worse than everyone else? With all of the new information that is being disclosed this month, it will be up to the American people to vote with their holiday shopping dollars.

It is likely that Wal-Mart has suspected for months how rough it would be on their image during the month that documentary filmmaker Robert Greenwald (Outfoxed) released his latest work, “Wal-Mart: The High Cost of Low Price.” It is less likely that they knew how much they would already be reeling from the release of highly damaging internal memos that demonstrate just how far Wal-Mart is willing to go to bring you “always low prices.”

The first of the damaging memos had to do with health care. Wal-Mart has long been criticized for the small percentage of its employees who are able to take advantage of the company’s health care plan. Between the long waiting periods, especially for the part-time employees which comprise the majority of its workforce, and the high deductibles, which are simply not affordable for workers making less than $20,000, and much lower in some cases, Wal-Mart’s insurance plan is simply not an option for many of its workers. Fewer than half have company-sponsored insurance, and 5% are on Medicaid, the government health plan for the poor. Nearly half the children of employees are covered only by Medicaid or have no insurance. (See USA Today article.) This means that taxpayers often must assume the burden when Wal-Mart employees and their families get sick.

But if Wal-Mart had its way, its employees would simply not get sick at all, because Wal-Mart would only have the youngest and healthiest employees on its staff. A memo written by Susan Chambers, Wal-Mart’s executive vice president for benefits, on ways to reduce the company’s healthcare costs, was recently leaked to the New York Times. (See Chambers memo.) The memo recommends that all jobs include some physical activity (e.g., all cashiers do some cart-gathering), so as to discourage unhealthy job applicants, because ”The least healthy, least productive associates are more satisfied with their benefits than other segments and are interested in longer careers with Wal-Mart” and this move would “also dissuade unhealthy people from coming to work at Wal-Mart.”

While the memo didn’t go so far as to recommend pushing out older workers, Chambers reminded Wal-Mart management that ”the cost of an associate with seven years of tenure is almost 55 percent more than the cost of an associate with one year of tenure, yet there is no difference in his or her productivity. Moreover, because we pay an associate more in salary and benefits as his or her tenure increases, we are pricing that associate out of the labor market, increasing the likelihood that he or she will stay with Wal-Mart.” Notably, Chambers acknowledged that the criticisms leveled at Wal-Mart’s health plan are hardly meritless. The memo states, ”Wal-Mart’s critics can easily exploit some aspects of our benefits offering to make their case; in other words, our critics are correct in some of their observations. Specifically, our coverage is expensive for low-income families, and Wal-Mart has a significant percentage of associates and their children on public assistance.”

Wal-Mart then rushed to control the damage, by announcing a so-called new plan with low premiums ($11 to $65 a month) and high deductibles. The first three doctors’ visits and three prescriptions are handled with nominal co-pays. To help employees pay out-of-pocket expenses up to the deductible, Wal-Mart also promotes tax-free health savings accounts, a kind of 401(k) plan for medical expenses. (See USA Today article.) Critics charge that this, too, is a sham, as it fails to address the real problem with Wal-Mart’s coverage:

The cheapest deductible on Wal-Mart’s new plan is $1,000 for individual coverage and $3,000 for family coverage. For Wal-Mart workers, many of whom make $12,000 to $15,000 a year, the cost could be as much as 25% of their take-home pay for individual coverage and up to 40% for family coverage.

(See Wal-Mart Watch op-ed.)

Now, just as the health care story starts to fade from the public eye, more damaging information from within has been released. This time, the subject is the immigration status of the workers who clean Wal-Mart stores. You might recall that back in 2003, federal immigration officials raided 60 Wal-Mart stores where undocumented workers were being used to clean the stores. At the time, Wal-Mart management disavowed any knowledge of the workers’ immigration status, saying that subcontractors were responsible for hiring them. However, an unsealed affidavit in the immigration investigation reveals that senior management was aware that the workers were undocumented. (See Associated Press article.)

One cleaning contractor says that a Wal-Mart vice president, Leroy Schuetz, advised him to set up multiple subsidiaries, so that if one of them were found using illegal workers, he could continue to do business with the retailer through the others. More testimony reveals Steve Bertschy, a Wal-Mart vice president who managed maintenance, commented about subcontractors using undocumented workers, “And they load them up into one or two apartments and they take a family of five and pay them $1,000 a week, that’s probably a dollar an hour if they’re there seven days a week and they’re not paying taxes because they’re not getting paid a fair rate compared to U.S. standards, then they start stealing from the store to make up the difference.” (So if Bertschy was aware of this degree of exploitation, why wasn’t he doing anything about it? Probably because no employees were stealing nearly as much as Wal-Mart and its subcontractors were stealing from them by failing to pay them even the minimum wage.)

The release of all of this harmful information has motivated Wal-Mart to gear up a PR machine. No longer can they avoid all the damaging publicity, so they’ve established a “war room.” Although Wal-Mart’s founder, Sam Walton, thought PR work was a waste of time and money, its current leadership is running scared. It has recruited political strategists on both sides of the aisle: Michael K. Deaver, chief guardian of Ronald Reagan’s image, and Leslie Dach, one of Bill Clinton’s media consultants, to take its message to the people, just like a political campaign would do. (See New York Times article.) In a second-floor conference room in the company’s Bentonville, Arkansas headquarters, “Action Alley” (the same name Wal-Mart gives to the wide, circular aisle that runs around its stores) is staffed with a team engaged in such activities as scanning newspaper articles and television transcripts that mention Wal-Mart, holding conference calls with Wal-Mart employees around the country to plan for events, and generally trying to neutralize criticism before it is leveled.

Things will most likely come to a head next week, with the premiere of “Wal-Mart: The High Cost of Low Price.” As the organizers remind us, “While would-be Hollywood blockbusters book thousands of theaters months ahead of time jockeying for the best opening weekend, we’re looking to book thousands of churches, family businesses, schools, living rooms, community centers, and parking lots the week of November 13th.” (See walmartmovie.com screening information.) More than 6000 screenings of the movie are already scheduled, most outside of theaters. Chances are, there’s already one organized near you, and if there isn’t, you can always host one of your own! (Sign up to host a screening.)

You may be wondering what you can do to fight back against the retail Goliath, beyond educating yourself by seeing the new movie. Luckily, many groups have identified a number of action steps that anyone can take. (See Action Page.) Wal-Mart’s workers can join the new Wal-Mart Workers of America (WWOA) – the first national association for Wal-Mart workers.

Ultimately, however, the American public is going to have to vote with its dollars by spending them elsewhere. It may initially hurt, especially in rural communities where Wal-Mart has driven out most of its competitors. But if we collectively hope to reverse the downward slide of wages and working conditions in this country, we have to start at the top, with the company that is influencing (and in some cases, obliterating) its competitors. Next week, when millions of Americans will be thinking long and hard about what Wal-Mart has done to this country, will be as good a time as ever to start, and to continue through the critical holiday season.

More Information:


Workplace Fairness: Wal-Mart: Bad for Workers, Bad for America

Wal-Mart: The High Cost of Low Price movie website

Wake-Up Wal-Mart

Wal-Mart Watch

American Rights at Work

AlterNet’s Wal-Mart Coverage

Impact Fund: Wal-Mart Sex Discrimination Class Action

NELA’s Amicus Program: Brief in Dukes vs. Wal-Mart

Loyalty: Not What It Used to Be, But is Washington to Blame?

Wednesday, November 2nd, 2005

Loyalty to your employer used to be one of the most important values that any employee could have, and no one can deny the role it has always played in career advancement. And until as recently as last week, you might have been forgiven for thinking that it was one of the values held most dearly by the Bush Administration. Ah, but how quickly things can change. I. Lewis “Scooter” Libby has now fallen on his sword to earn a criminal indictment, while Harriet Miers gets to watch from the sidelines as another Supreme Court nominee wins the plaudits she had desperately hoped to earn along the way. But when you look at how this administration has dealt with an increasingly important policy issue – retirement, and pensions in particular – it’s clear that loyalty no longer gets you nearly as far as it used to.

Washington had been buzzing for weeks, and no longer was the noise not much more than a faint opposition to Republican domination. Who would be indicted for ruining the CIA career of Valerie Plame Wilson – punishing someone who by all accounts was very loyal to her organization (see Associated Press article) because of her marriage to someone who was not so loyal? To the Administration, that is, although you could certainly argue that Joseph Wilson’s loyalty was first and foremost to the truth.

Would it be Deputy Chief of Staff Karl Rove – whose loyalty to the President has made him arguably the powerful man in America? Or Vice President Dick Cheney, whose loyalty to George Bush, Sr., brought him back to serve in this administration despite the apparent extreme detriment it represents to his health?

Not yet: so far, only Scooter (which is more fun to call him than Libby), Vice President Cheney’s chief of staff, is taking it for the team, while others wait to see whether Rove and Cheney’s loyalty will be enough to preserve them from the grasp of Special Prosecutor Patrick Fitzgerald. Last Friday, Scooter was indicted and forced to resign, while Fitzgerald’s investigation remains ongoing. (See Associated Press article.)

The end of last week was a busy couple of days in Washington. Just the day before, the news quickly spread that Harriet MiersSupreme Court nomination was history. It was not to be, as both conservative and liberal opposition had spread so widely that it was going to be impossible to avoid an embarrassing set of confirmation hearings – and subsequent votes. (See Knight Ridder article.)

Miers, who once called George W. Bush the most brilliant man she had ever met (now that’s loyalty for you!) was also paying the price for her loyalty. Or perhaps President Bush was paying the price for his loyalty to her, which seemed to blind him to her unsuitability as a Supreme Court nominee. At least she still has a job – unlike Scooter – as she returns to her role as White House Counsel – destined to continue vetting Supreme Court nominees rather than ever realizing that dream (which honestly was probably never on her list anyway) herself.

But is it really so surprising that the value of loyalty seems to have recently plummeted faster than stock in the major airlines and auto manufacturers? (Oops, there’s some more employers to which long-term loyalty has become almost devoid of value?) Not really, when you look at the Administration’s retirement policy. A system whose value has depended on loyalty is being dismantled in front of our eyes. This weekend’s New York Times Magazine feature story, The End of Pensions, shows just how far we’ve gone past the point of no return.

Many corporate pension plans are in deep trouble. As the Times article points out,

The amount of underfunding in corporate pension plans totals a staggering $450 billion. Part of that liability is attributable to otherwise healthy corporations that will most likely, in time, make good on their obligations. But the plans of the companies that fail will become the responsibility of the government’s pension insurer, the Pension Benefit Guaranty Corporation. The P.B.G.C., which collects premiums from corporations and, in theory, is supposed to be self-financing, is deeply in the hole, prompting comparisons to the savings-and-loan fiasco of the 1980′s.

State and local government pensions are not doing much better themselves. The Times article notes:

Public pensions, which are paid by taxpayers and thus enjoy an implicit form of insurance, are underfunded by a total of at least $300 billion and arguably much more. While governments have been winking at these deficits for years, they are now becoming intolerable burdens for taxpayers.

What is the Administration’s solution? According to the article,

The tough medicine favored by the Bush administration, which would eliminate loopholes in the system as well as much of the subsidy that now exists in the insurance system, would lead to more companies freezing their plans or leaving the system outright. The number of pension plans would continue to shrink and in time all but disappear. This would strip the elderly of the future of what is still the most secure form of retirement income. The fear of runaway pension costs plainly echoes the Social Security debate, and many suspect that the Bush administration would not much mind if pensions did disappear.

Is that true? Would the Bush administration just as soon be done with pension plans altogether? Roger Lowenstein, who wrote the Times article, says

I put that recently to Elaine Chao, the secretary of labor, and while her answer was diplomatic, she made no bones about the fact that, in the administration’s view, traditional pensions are losing their relevance. ‘Defined benefit plans have their advantages,’ she told me, ‘but in an increasingly mobile 21st-century work force, the lack of flexibility of D.B. plans is yielding to greater usage of defined contributions plans.’

When it is the Government’s view that a retirement system based upon long-term loyalty and employers honoring their promises equates to a “lack of flexibility,” you can see where we’re headed here. “Flexibility” just becomes a code word for selling out the most loyal long-term employees to suit the employer’s interests, just like the Administration needed the flexibility to torpedo Miers and Libby to halt the political freefall. It’s okay to be “mobile,” with no long-term loyalty to any particular employer: in fact it’s better, if you don’t want to keep working forever and hope to devote any time and effort to anything but your employer during your lifetime.

Don’t you bet that Scooter and Harriet are asking themselves some serious questions about loyalty right now? Perhaps it’s something that every American worker needs to think about, especially as it relates to their future retirement plans.

More Information:

Short-Changed: Broken Promises

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