Outten & Golden: Empowering Employees in the Workplace

Archive for October, 2006

Fox in the Henhouse, Episode 57: It's the Hens' Fault Again

Thursday, October 26th, 2006

See what happens when you put the foxes in charge of the henhouse? They have you believing that the hens’ demise is all their own doing. Just look at the Department of Labor’s strategic plan for the next five years. It’s probably not that much of a surprise that “training” is the buzzword in Elaine Chao’s Department of Labor. If only those pesky workers were properly trained, they’d all have high-paying jobs, there would be no unemployment, and health and safety issues would be a thing of the past. You see, all these problems are the fault of workers.

It sounds like a good thing for a government agency to have a 5-year strategic plan, although obviously, depending on the outcome of the 2008 elections, it might not be worth the paper it’s written on (or the megapixels it generates). The Department of Labor’s Strategic Plan for Fiscal Years 2006–2011 has four primary goals:

  • A Prepared Workforce
  • A Competitive Workforce
  • Safe and Secure Workplaces
  • Strengthened Economic Protections

All laudable goals, to be sure, but the question always is: what will the Agency do to achieve them? Here’s what Professor Richard Bales of the Workplace Profs Blog had to say: “My observation based on a quick glance: there’s a lot in here about worker training, but not much about enforcement of existing worker protection laws.” (See DOL Issues Strategic Plan.) Prof. Bales’ initial instincts are correct — reading 94 pages, even with lots of pictures and charts, doesn’t change that impression much. The report exemplifies the DOL’s current philosophy, euphemistically referred to in the report as a “balanced approach to protect the safety and health of America’s workers.”

I guess you could call it balanced, if your world view is that requiring businesses to comply with those pesky laws protecting workers by engaging in vigorous enforcement activity is out of whack. And that’s Secretary Chao’s world view. As she told a Washington audience earlier this year, “Often, people come into public service with a zeal to take immediate action. But, sometimes it’s not what you do but what you refrain from doing that is important.” (See Lexington Herald-Leader article.) (Hat tip to Confined Space for spotting this expose.)

So let’s refrain from helping coal miners emerge safely from the mines each day they work, why don’t we? When inspectors from the Mine Safety Health Administration — an agency under Chao’s jurisdiction — confronted millionaire coal magnate Bob Murray about safety problems at his mines, Murray supposedly shouted, “Mitch McConnell calls me one of the five finest men in America, and the last I checked, he was sleeping with your boss.” (Secretary Chao is married to Senate Majority Whip Mitch McConnell.) For more about Murray’s charm, see this United Mine Workers of America article — you gotta love the talking squirrel.

While Murray now denies making the statement, there’s no dispute that one of the MSHA officials he threatened, district manager Tim Thompson, was transferred to another region, away from Murray’s mines. Since Thompson had one of the few jobs where being in rural Appalachia is not a career hindrance, he appealed the transfer for three years until he had no choice but to take retirement in January. (See Lexington Herald-Leader article.)

Now a career coal company official with no history of safety is in charge of the MSHA, confirmed by virtue of a recess appointment, since the Senate wouldn’t confirm him. (I guess McConnell couldn’t whip his party caucus into shape on this one, but obviously it didn’t matter.) Richard Stickler worked for BethEnergy Mines of Pennsylvania for 30 years, whose mines had accident rates twice the national average. Stickler has told U.S. senators that current mine safety laws are “adequate.” (See Charleston Gazette editorial.) The New York Times isn’t so fond of Stickler either, pointing out that even (lame duck) Senate Majority Leader Bill Frist claimed he wouldn’t stand for a recess appointment, and that “[l]awmakers should demand a bulldog enforcement director rather than another industry lapdog.” (See New York Times editorial.)

It doesn’t stop there: Edwin Foulke, the head of OSHA, gave a speech commemorating North American Occupational Health and Safety Week called “Adults Do the Darndest Things.” His speech was essentially the workplace version of the Darwin Awards — implying that worker stupidity was responsible for many workplace injuries. Foulke comes to the agency from the law firm of Jackson Lewis, where he spent his career defending companies charged with OSHA violations. So we can expect that instead of heavily penalizing companies who violate OSHA standards, Foulke’s approach will be to blame the workers’ lack of training and their own stupidity for any “accidents” that happen.

And also courtesy of a recess appointment, we have Paul DeCamp heading the Wage and Hour Division, responsible for ensuring that workers are paid the wages they’re owed under law. Except that he’s never done that before in his career — instead he’s worked at a defense firm ensuring employers pay their workers as little as possible. Generally you don’t hire someone to run an agency who has so little experience accomplishing the agency’s mission, but it’s probably not going to be a problem. It’s probably the workers’ fault that they work so many hours when they know their employer doesn’t intend to pay them.

You’ll never see the following headers in the DOL Strategic Report, but perhaps they’d be more appropriate:

  • A Dead Workforce
  • A Maimed Workforce
  • An Unemployed Workforce
  • A Broke Workforce

But, it’s the workers’ own fault, really. I dare Elaine Chao to tell that to Randal McCloy. No, let me guess, Secretary Chao would just “refrain.”

Wal-Mart: Worldwide Humanitarian?

Wednesday, October 18th, 2006

Just when you think you’ve seen it all, then you see something that still has the capacity to make your blood boil. For me, this week, it was the following statement, found on the editorial page of the New York Times: “Has any organization in the world lifted more people out of poverty than Wal-Mart?” No matter how many times I blinked, the statement didn’t go away, so I had to figure out what it was really about. Unsurprisingly, it was based on so many fallacies that I almost felt sorry for those who actually believe this stuff — except of course, there’s far too many people who will get sucked in.

The discussion in Shopping for a Nobel (requires Times Select membership) started innocently enough, with an acknowledgement of the work that newly anointed Nobel Peace Prize winner Muhammad Yunus has done to lift the world’s citizens out of poverty, by offering what is known as microcredit, small loans of usually less than $200 to individuals, usually women, in order to establish or expand a small, self-sustaining business. The organization founded by Yunus, Grameen Bank, began in 1976 in Bangladesh, and since that time, has expanded to 2,226 branches at work in 71,371 villages around the world. So far so good, right? Obviously Yunus’ work has empowered individuals around the world to escape poverty through working and building businesses that serve as a valuable source of sustenance.

But Times columnist John Tierney thinks those selecting the prize could do even better by acknowledging the role that Wal-Mart plays in lifting people out of poverty worldwide. What? (or as those who use cyberspeak might say — not to be too indelicate — WTF?) Here’s the argument: There’s a natural limit to what villagers can make selling their goods to one another, when entire villages are steeped in poverty — the “thatched ceiling.” Thus, the best way out of poverty for these villagers is to work at creating manufactured goods that can be sold to Wal-Mart. Even the lowest-paying sweatshop wages are enough to lift individuals out of poverty. Coupled with the low prices that Wal-Mart offers in this country to American workers, shopping at Wal-Mart does more to help people around the world escape poverty than any other practice.

To be fair to Tierney, much of his column spouts the views of one Michael Strong, but there’s enough love being spread around that we can assume Tierney agrees with the basic concept. Strong uses as his case study China, citing statistics that between 1990 and 2002 more than 174 million people escaped poverty in China, about 1.2 million per month. With an estimated $23 billion in Chinese exports in 2005 (out of a total of $713 billion in manufacturing exports), Strong argues that Wal-Mart might be single-handedly responsible for bringing about 38,000 people out of poverty in China each month, about 460,000 per year. (See TCSDaily article.)

If the Chinese consider Wal-Mart the nation’s economic savior, then can someone tell me why the Chinese are poised to pass a new law which seeks to crack down on sweatshops and protect workers’ rights by giving labor unions real power for the first time since the 1980’s? (See New York Times article.) And is it a coincidence that the law’s emphasis is on foreign-owned companies and the suppliers to those companies? Doubtful, when Wal-Mart is the single largest foreign-owned company doing business there, and approximately 70% of Wal-Mart’s goods are made in China. (See China Daily article.) In fact, the law’s provisions are strong enough that some companies have hinted that they will do less business in China, and are heavily lobbying to stop the reforms. Sound familiar? (Those in Chicago can probably tell us what’s going on.)

It’s easy to blithely spout the argument that even those workers in America that Wal-Mart exploits the most are much better off than they would be if they were poor in some of the other countries where Wal-Mart does manufacturing business. Even if that were true, are we prepared to forfeit any aspirations whatsoever of being world leaders when it comes to how we treat our workers? (Some might argue that we’ve already done so. See Binghamton Press & Sun Bulletin article.) Should we just reconcile ourselves to sinking to the lowest common denominator. It’s really akin to children who argue they should be allowed to do whatever they want just because their friends are doing it, and the proper parental response, “If your friends were jumping off a cliff, would you want to do that too?”

Another argument that Tierney and others use is that Wal-Mart saves American consumers so much that it effectively assaults poverty here in the United States. Tierney tells us, “The best evidence is that, while Wal-Mart’s competition might (or might not) depress the wages of some workers, on balance Americans come out well ahead because they save so much money by shopping there.” (See Shopping for a Nobel.)

Even if that were true, the maxim “the customer is always right” doesn’t extend so far as to allow employers to violate the law in order to keep the customers happy. And there’s considerable evidence that Wal-Mart’s “always low prices” are made possible — at least in part — by Wal-Mart’s illegally low wages. I don’t know if economists would call this past week’s $77 million and counting verdict against Wal-Mart an anti-poverty tool, but those workers who weren’t paid for the hours they worked and were locked in the stores while working off the clock will definitely be better off, at least if they are ultimately able to collect any of that money. And as a recent article in The Nation notes,

Slavery kept cotton prices low in the United States for centuries and saved consumers countless dollars. But it was wrong. Likewise, Wal-Mart’s strategy of keeping costs down by exploiting sweatshop suppliers abroad while undermining unions and paying less than living wages in this country should be deemed unacceptable in the twenty-first century.

(See The Nation article.)

But it’s not even true. As The Nation also points out:

The Economic Policy Institute has ripped apart the methodology Wal-Mart’s consultants used to come up with this most popular claim of the Wal-Mart pundits [that Wal-Mart saves American consumers $263 billion a year]. The consultants based their finding on an analysis of the effect of Wal-Mart expansion in a locality on overall consumer prices in that area. The problem, as EPI points out, is that 60 percent of the consumer price index is made up of services like transportation and housing that Wal-Mart doesn’t provide. Therefore, the $263 billion figure is wildly exaggerated.

(See The Nation article.)

Instead, Wal-Mart’s profits are subsidized by the American taxpayer. As one study in California noted, “Employment policies at Wal-Mart, the nation’s largest employer, cost California taxpayers approximately $86 million a year in public assistance to company workers…The study indicates that Wal-Mart workers in California rely on the state for about $32 million annually in health-related services, and $54 million a year in other assistance such as subsidized school lunches, food stamps and subsidized housing.” (See UC Berkeley press release.)

So don’t think you’re doing the world any favors by marching down to the local Wal-Mart. You’re not even doing yourself a favor — and don’t let anyone who writes for the New York Times (or any other paper, for that matter) convince you otherwise.

People Make Mistakes, and Some are Doozies

Thursday, October 12th, 2006

We’re all human and make mistakes during our lives. Some are obviously bigger than others, and have the ability to haunt us for considerable lengths of time. A recent workplace mistake that no one in Ottawa County, Michigan is likely to forget anytime soon was delicately described as “a missing “L” in the word public,” which necessitated the reprinting of 170,000 ballots for the upcoming election and cost the county $40,000. Meanwhile, some innovative Minnesota programs focus on improving employees’ English skills in the workplace and are designed to prevent more embarrassing and costly workplace mistakes.

Thankfully, the employee who typed up the ballot information has never had his or her name revealed, but as a Board of Elections spokesperson put it, “Unfortunately sometimes there is human error involved.” This one is the kind of error that no one soon forgets, and that becomes American watercooler fodder. (See Holland Sentinel article.) The word “public” was used in the ballot proposal 6 times, but one of them had an error — the missing “L.” [A brief aside: a friend who once made this embarrassing mistake throughout a court filing (commented upon by the court to her extreme embarrassment) says it taught her to remove the offending word from her spell check dictionary — even when the word is properly spelled and intentionally used, you’d prefer to know about it and make sure it belongs in your document first.]

The mistake was in the text of an already-controversial measure — Proposal 06-02 — a proposed state constitutional ban on affirmative action programs that give preferential treatment to individuals or groups based on race, gender and other categories. Although five or six people proofread the ballot materials, as one supervisor put it, “My first thought was, ‘Oh crap’…It’s just one of those words. Even after we told people it was in there, they still read over it. It happens occasionally.” Before anyone noticed the mistake, Ottawa County had already printed 180,000 ballots and sent out 10,000 ballots to absentee voters, most of which have already been voted and returned to the county.

It’s almost a shame that the mistake was discovered in time to reprint the ballot. Perhaps knowing the mistake was there would have encouraged voters to read the language more closely, and think about its damaging effects. Even our conservative U.S. Supreme Court upheld the need for continued affirmative action programs in the state of Michigan several years ago, in the case of Grutter v. Bollinger.

While this was a humorous and embarrassing example of how small communications mistakes can be very costly, others are perhaps not so funny, and can cause serious problems in the workplace. “Employers know that misunderstandings, in the literal sense, cost them money. Immigrants and refugees know that poor English makes them hard to hire and even harder to promote.” This is why “job-specific English courses” are spreading throughout Minnesota, and presumably elsewhere. (See Minneapolis Star Tribune article.)

As one of the instructors explains it, “This is not ESL, or how to go to the grocery store or how to help your kids with their homework. This is specifically to train you to do your work.” The courses cover technical terms specific to specific occupations or workplaces, and grammar and verb-tense mistakes commonly made with workplace words, such as “I am working” vs. “I work here.” They also can include “accent reduction” — mastering the position of the tongue when pronouncing a foreign sound.

In one particular workplace, Mackay Envelope Corp., the results were quite impressive: after 40 workers completed courses, they increased the number of workplace terms they were familiar with from an average of 35 to an average of 51 of 55 terms tested. The company’s CEO, Scott Mitchell, says the new proficiency is one reason for a 45 percent drop in financial losses, on product returned because of problems, which could easily save the $80 million company $400,000 a year. “If you have communication issues and the product is screwed up because of it,” he said, “it’s an easy 2-foot putt for the company to understand you need to improve that.”

Certainly, this positive approach to improving employees’ communications skills is refreshing when compared to employers’ efforts to exploit immigrant workers and institute English-only policies only designed to demean and isolate certain workers. Let’s hope it catches on, because improved communication in the workplace can only have positive benefits for everyone involved.

What a Difference a Day Makes

Thursday, October 5th, 2006

And it’s a dark day, indeed. While in theory, it might sound good to be instantly promoted from rank-and-file worker to supervisor, Tuesday, October 3 will not be a day that those who received the “instant promotion” will ultimately remember fondly. When the National Labor Relations Board (NLRB) decided to decimate the meaning of the word “supervisor” to support its overtly political agenda, workers paid the price.

The decision had been anticipated for weeks, and not with glee. (See CommonDreams.org story.) And as it turns out, all the worry was not for naught — it was as bad as people expected. On October 3, in a group of decisions known as the Kentucky River decisions, the NLRB voted, in a split 3-2 decision, to dramatically expand the number of people who are considered supervisors. (Kentucky River was a 2001 case about this issue, but it was the Oakwood decision issued yesterday where the most damage was done.) Voting against workers in the Oakwood decision, as it has done in several other anti-worker cases were three Bush Administration appointees to the NLRB. (See Rep. George Miller’s NLRB Report.)

Oakwood addressed the question of whether RNs who served as “charge nurses” should be considered supervisors. Under the new test, as explained in the Oakwood decision, the assignment of routine tasks is sufficient to confer supervisory status, even if the assignment is a reflection of professional judgment and even if the employee in question has no input into the general allocation of work assignments. (See American Rights at Work press release.) In terms of how much is too much, the case holds that workers should be considered to have supervisory status where they have served in a supervisory role for at least 10–15 percent of their total work time. That’s only fifty minutes of an eight-hour shift. (See Huffington Post blog entry.)

Trouble is, this decision doesn’t come with a pay raise, but is more likely to represent a pay cut. The reason is that by expanding the definition of who is considered a supervisor, the NLRB has simultaneously reduced the number of people who can be members of unions. Neat trick, eh? And de-unionization explains about 15 percent of the increase in wage inequality among men over the past quarter-century (See Washington Post article.)

The dissent says that “Today’s decision threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.” (See Oakwood Healthcare, Inc. decision.) Does the majority care? No, they instead attacked the dissent, by saying:

We do not, as the dissent contends, ignore potential “real-world” consequences of our interpretations. Rather, we simply decline to engage in an analysis that seems to take as its objective a narrowing of the scope of supervisory status and to reason backward from there, relying primarily on selective excerpts from legislative history.

(See Oakwood Healthcare, Inc. decision.)

One group has calculated that this decision will affect 8 million people — all kinds of people who do the same kind of work as their peers and get paid the same amount, but because they occasionally direct other employees in the performance of their tasks, voilà, they’re now a supervisor. (See EPI Analysis.) As John Sweeney, AFL-CIO President, points out,

“[The decision] completely ignored the realities of today’s workforce, which is more skilled and educated than those of previous generations. Workplace hierarchies have flattened out. Few employees today are in jobs that don’t require them to exercise some independent judgment, to show someone else how to perform a task, to pass assignments on to co-workers. This should not cost them their right to a union voice on the job.

(See Huffington Post blog entry.)

So now there are eight million people who may find themselves out of their unions whenever their employers attempt to challenge their involvement, and it’s probably not a coincidence that they are the very folks the employer would prefer not be union members. (If someone is good enough to occasionally take charge and give their co-workers some guidance and direction, they also may very well be doing the same within their union.) But let’s not kid ourselves — these are not people that the CEO is listening to or who are participating in management-level decisions. This would encompass anyone who takes charge only one day a week. Instead of that day representing temporarily increased pay and a potential step up the career ladder, it now could mean the day the union died — the day that workers lose a significant force advocating on their behalf.

Want to know what a difference a day can make? Just ask Thomas Ouellette. Ouellette was an employee with Verizon, who asked for a day off to attend the funeral of his wife’s grandfather. Now, you can call me crazy (and some probably have), but I could never understand why companies don’t automatically grant time off to attend funerals when an employee requests it. I don’t know a single person — including people who are in some pretty bad job situations — who would rather attend a funeral than go to work. A policy which purports to decide for an employee which deaths deserve leave and which don’t is simply ludicrous and ignores the reality of human relationships. But I digress…

Mr. Oeullette attended the funeral on December 2, 2002, and accordingly was suspended by Verizon for three days, due to his unauthorized absence. His union, Local 2322 of the IBEW, cried foul and processed his grievance. In the grievance process, the suspension was reduced to one day (December 3), but the union pressed on and took Ouellette’s case to arbitration. The arbitrator issued a ruling that was not entirely clear, saying that the suspension was without cause, so the discipline should be removed from his file. The parties asked the arbitrator to clarify the ruling, and he made clear that Ouellette should be paid for December 3 and that there should be nothing in his file reflecting disciplinary action. Verizon still refused to pay Ouellette and change his record, so IBEW appealed his case to the federal district court. When Verizon lost, it appealed this case to the 1st Circuit Court of Appeals (See IBEW v. Verizon.)

The court ruled that Verizon should just comply with the arbitrator and lower court’s ruling already (with a huge dose of procedural mishmash included in the opinion.) The more important implication of this case however is: do you think Mr. Ouellette would have had the resources on his own to fight for nearly four years over one day’s pay? Especially when it’s clear that Verizon refused to be reasonable during the grievance process, wouldn’t listen to the arbitrator, and wouldn’t listen to a federal district court. (Who knows, they still could try to make a Supreme Court case out of a one-day absence.) Ouellette needed someone to fight on his behalf, and here it was his union.

It’s clear that Mr. Ouellette will never forget December 2, as that single day has meant years of grief (and not just due to losing a family member). And workers shouldn’t forget Tuesday, October 3, especially not on Tuesday, November 7, when they get a chance to make their own political decision about who is going to best protect their rights. (Hint, it’s not the candidates that restrict workers’ rights to form and join unions at every opportunity.)

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