Outten & Golden: Empowering Employees in the Workplace

Archive for September, 2008

The Next New Deal

Wednesday, September 17th, 2008

In 1932, at the middle of the Great Depression, President Franklin Roosevelt swept into office with the promise of bold economic reforms. Although conservative critics of the day said that it wouldn’t work–the same ones that watched the economy collapse and did nothing–policies implemented in The New Deal stabilized the banking system, cut skyrocketing unemployment, paid farmers and workers fair wages, and created a foundation for a generation of economic growth.

A few years later, World War II strengthened America’s economy, resulting in twenty years of prosperity. The standard of living of the American worker rose steadily, with the majority of workers making more and more money each year. Plants were hiring, homes were being built, parents were sending their children off to college, and each generation expected to do better than their parents.

Sounds like fantasy-land, right?

No, that was our reality for two generations–until businesses became greedy. Big business came up with a plan to force workers to do with less so that they could have more. Their strategy included: force wage concessions from their workers, restrict government regulation, lower taxes on corporations and the rich and move as many high-wage jobs overseas as possible.

This has been the Republican mantra for the past 30 years. And although this message of corporate elitism seems to resonate with the general public, you have to ask yourself: Who are these policies benefiting? Are they helping big business – who are now counting their profits in the trillions? CEOs – whose compensation now averages 400 TIMES their average worker? Or are they benefiting everyday, average citizens who are now making less and less while corporate executive make more and more?

Our government, whose constitution was based on “Of the people, by the people and for the people” have corrupted their morals and sold out to big business. Our Founding Fathers shed blood to keep this country from being controlled by an elite group of the super-rich. They wanted to make sure that the common man was being heard, rights were being respected and interests represented in their government.

Who are the real patriots, now?

No one expects to go back to the 1950’s. What we do expect, however, is for this country to get back to our democratic principles of economic fairness and concern for the commonwealth. This country is only as good as its people. For America to become great again, we have to get back to the days of American ingenuity, research, innovation and a strong, vibrant, highly educated and highly trained workforce.

We need to invest in our nation’s future and rebuild our middle class; creating good paying jobs instead of shipping them all overseas. No more race to the bottom, we need to begin our race to the top! It’s time to Invest in America’s Future.

For more information, please visit www.nextnewdeal.org.

About the Author: Jeff Blum is the Executive Director of USAction & USAction Education Fund. Blum’s experience in grassroots organizing is extensive. He founded and directed Pennsylvania Citizen Action, where he helped lead successful campaigns to reform the state’s public utility law, create a toxics right-to-know law and expand access to generic drugs for senior citizens. He has also worked for the Peoples’ Coalition for Peace and Justice, Massachusetts Fair Share, People for the American Way (where he co-coordinated the campaign to establish AmeriCorps) and was Transportation Policy Director for Citizen Action. Blum also served as President of Maryland Citizen Action, founder and member of the Advisory Board of the Jewish Fund for Justice and as a member of the board of Citizens for Tax Justice. He is on the executive committee of America Votes and is an advisor to Progress Now. In Pennsylvania, he ran for state Senate in 1990 and was the Northeast Pennsylvania Regional Director of the Clinton/Gore Campaign in 1992. He has a BSN from Boston University and attended the University of Chicago and the University of Warwick, England. He and his wife, Ellen Cassedy, reside in Takoma Park, Maryland, and have two children.

Sharing Labor Day with Transgender Workers

Tuesday, September 16th, 2008

In 2007, hundreds of gay-rights organizations from across the country signed a statement opposing the first gay-rights bill ever approved by a house of Congress. Why? Because the bill, the Employment Non-Discrimination Act (ENDA), prohibited job discrimination based on sexual orientation, but not discrimination based on gender identity/expression. After the House voted to approve ENDA as written, a House committee held a first-ever hearing on the issue of gender-identity/expression discrimination. It is likely that future ENDA proposals will include both sexual orientation and gender identity/expression as protected characteristics. When that happens, Congress will once again be following the lead that employers from coast to coast have already clearly established in affirming the equal employment rights of their transgender employees.

For purposes of this article, “transgender” is an umbrella term describing people who present to the world a gender identity different from the one they were assigned to at birth. The typical transgender person, in their “mind’s eye,” firmly and sincerely sees their gender in a way that does not match their anatomy; this divergence can appear at a very early age and is not usually thought of as a choice any more than is one’s sexual orientation. Transgender people may or may not attempt to change their bodies (“transition”) to align with this gender expression (those who do are often referred to as “transsexuals”). While most transgender people use the pronouns associated with the gender they present, some avoid the use of traditional, gendered pronouns altogether.

A person who comes out as transgender and changes their gender expression often puts him- or herself at significant risk for rejection, discrimination, harassment, or even violence. There are countless transgender people who, having transitioned later in life, have difficulty finding a fulfilling job even though they have advanced degrees and years of relevant experience – somehow, exchanging pants for a skirt magically negates an MBA and professional accomplishment.

The American workplace is slowly but inexorably recognizing that transgender employees have much to offer, and deserve fair and equitable treatment. Increasingly, labor advocates are leading the way by persuading American employers to amend existing non-discrimination and anti-harassment policies to extend their protection to transgender workers. According to the Human Rights Campaign, 153 of the Fortune 500 companies have taken such a step. Clearly, there is progress yet to be made – and labor advocates are likely to be successful.

Beyond basic non-discrimination/anti-harassment policies, forward-thinking employers are also contemplating issues related to employment benefits. Most fundamentally, does an employer’s health plan, assuming there is one, cover services related to gender transition? These usually fall into three basic categories: counseling, hormones, and surgery. The vast majority of plans that cover mental-health treatment don’t draw a line around gender-identity counseling and attempt to exclude it, nor should they. This is important, because counseling is often the initial step that opens the next doors in the transition process. Some employer plans contain gender-related provisions that specifically exclude surgery, while other go further and also exclude hormones as well. More and more, however, health plans (and related plans, such as short-term disability policies) are eliminating these restrictions as employers realize that covering gender-related care significantly benefits affected employees while adding relatively little to their insurance premium. In June 2008, the American Medical Association issued a statement calling exclusions of gender-related care a form of discrimination. Workplace advocates will continue to press for change in this area, which, in turn, could positively affect the future conversation about universal health care and its scope.

Additional complexities may arise regarding a transgender employee’s partner, and their access to dependent health benefits. For example, if a married male employee transitions to female and adopts a female name, but does not divorce, does the spouse remain the employee’s wife, and therefore the employee’s dependent? Or does the spouse, in effect, become a domestic partner? (Hint: pick door number one.) This matters, because if the dependent is seen as a spouse, the benefits are a tax-free fringe benefit. On the other hand, if the dependent is characterized as a domestic partner, the benefits incur tax liability for the employee and deductions by the employer. On one level, this distinction would be immaterial if not for the tax difference, and here, labor and employers are speaking out together in favor of federal legislation that would treat spousal and partner benefits equally for tax purposes.

Taking back Labor Day means, among other things, sharing Labor Day with transgender workers, and committing oneself to learning about the issues they face, educating others, and advocating for workplace fairness for all.

About the Author: Phil Duran is the Staff Attorney at OutFront Minnesota, the state’s leading advocacy, direct service, and public policy agency for gay, lesbian, bisexual, and transgender (GLBT) Minnesotans and their allies. His work at OutFront Minnesota focuses on legal information, referral, and education; state legislative research and analysis; state administrative agency and local government public policy; school-related issues; and direct representation in selected public-assistance and human rights matters. Additionally, Duran serves on the board of the Minnesota Lavender Bar Association, which raises GLBT issues within the legal profession in Minnesota. He also is a past member of the executive council of the Minnesota State Bar Association (MSBA), and served on the steering committee of the MSBA’s Diversity in the Legal Profession Task Force. He currently serves on the MSBA Diversity Committee, MSBA Task Force on the Rights of Unmarried Couples, and Minnesota Supreme Court’s Gender Fairness Implementation Committee. Phil is a graduate of the University of Minnesota Law School.

Labor In Exchange for One’s Rights

Monday, September 15th, 2008

A large and growing number of employers across the United States require current and prospective employees to sign away core constitutional rights as a condition of getting a job. “If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.

These provisions are common. Big Box retailers have them, restaurants have them, companies like Halliburton have them, and many more. Exact numbers are hard to come by, but it’s clear that today there are far more workers in America who have been required to sign mandatory arbitration clauses than there are workers who are members of unions. If one were trying to figure out whether the balance of power had shifted one way or the other between employers and employees, it would be hard to find a more obvious measure. A smaller and smaller percentage of American workers have been able to organize into groups to balance out the power of employers, and a larger and larger percentage of American workers have been forced to give up their legal rights and submit to corporate-chosen, largely non-transparent tribunals whose decisions are not meaningfully reviewed by any court. What a deal!

Arbitration tends to work pretty well in the collective bargaining process, where both sides–the union and the employer–are pretty sophisticated “repeat players,” and where neither party dominates who selects the arbitrators. Arbitration between employers and individual employees tends to be a very different situation, though. While individual employees rarely know how a given arbitrator has ruled in past cases (the arbitrations are generally confidential, and thus secret), the employers know who’s who. Arbitrators who rule for an employee risk being blackballed, and never working as an arbitrator again.

As a lawyer who represents employees and consumers in an adversary process, I’ve learned to be suspicious when the party who is adverse to–against–my client says it’s doing something for my client’s good. Thus, I’ve always taken it with a grain of salt when big corporations say things to the effect of “the reason we’re choosing to force our employers to submit to arbitration is because arbitration is fairer and better for the employees.” It reminds me of the line in Caddyshack where the Judge self-righteously tells the caddy “I’ve sent boys younger than you to the electric chair. I didn’t want to do it; I felt I owed it to them.”

Thus it should be no surprise that the leading academic study of thousands of publicly reported employment cases has found conclusively that non-unionized employees who have to take their disputes to pre-dispute binding arbitration win less frequently than if they could have taken their cases to court. The same study found that in those cases where employees do win in arbitration, they tend to win smaller awards than they would have been likely to win in court. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). (Purchase the article.) There are some studies paid for by the Chamber of Commerce that purport to show how employees benefit from mandatory arbitration (some by carefully selecting the cases they study, some by blurring together data from arbitration in the collective bargaining setting and the non-unionized setting, and some by simply lying), but the Colvin piece is the real deal.

The U.S. Supreme Court has repeatedly said that a cornerstone of arbitration is that it’s voluntary, and consensual. The Court sees nothing involuntary about telling a long-time employee that they have to sign a binding arbitration clause or lose their job. “After all,” the argument runs, “they could always choose to work for someone else.” This argument is pretty empty for most employees. It’s only a short step from that to saying that someone who signs an arbitration clause at gunpoint has made a voluntary choice – “hey, they could have chosen to be shot.”

The legislative history of the Federal Arbitration Act makes very clear that this state of affairs is not what Congress intended in 1924. From talking to my clients, there are a large and growing number of people who feel that mandatory arbitration for employees is unfair, and that Congress needs to do something to correct the problem.

About the Author: F. Paul Bland, Jr. is a Staff Attorney for Public Justice (formerly Trial Lawyers for Public Justice), where he handles precedent-setting complex civil litigation. He has argued or co-argued and won more than twenty reported decisions from federal and state courts across the nation, including cases in four federal Circuit Courts of Appeal and six state high courts. He was named the “Vern Countryman” Award winner in 2006 by the National Consumer Law Center, which “honors the accomplishments of an exceptional consumer attorney who, through the practice of consumer law, has contributed significantly to the well being of vulnerable consumers.” He is a co-author of a book entitled Consumer Arbitration Agreements: Enforceability and Other Issues, and numerous articles. For three years, he was a co-chair of the National Association of Consumer Advocates. He also has won the San Francisco Trial Lawyer of the Year in 2002 and Maryland Trial Lawyer of the Year in 2001. Prior to coming to Public Justice, he was a plaintiffs’ class action and libel defense attorney in Baltimore. In the late 1980s, he was Chief Nominations Counsel to the U.S. Senate Judiciary Committee. He graduated from Harvard Law School in 1986, and Georgetown University in 1983.

Health Care, Labor, Economy, Prosperity

Friday, September 12th, 2008

It goes without saying that a healthy worker is a better, more productive worker. Sickness not only cuts into productivity by taking an employee out of the office, but chronic, untreated conditions can sap energy, happiness, and ability, resulting in a less productive environment for both the employee and the employer.

This is why in the 1940s, when businesses were competing for workers but couldn’t raise wages due to wartime wage controls, health insurance was introduced as a benefit. It was a win for both sides. Back then, health care was a non-profit enterprise, and everyone was charged the same premium no matter their age, sex, or pre-existing conditions, so costs were much lower. And employers realized that healthy workers were better for business. Today, this is how most Americans get their health care, as a benefit provided by their employer.

Of course, a lot has changed since then. Today, private insurers of the mostly for-profit type cherry-pick the customers they can make money on while dumping those who actually need to access the care they’ve paid the insurance companies to provide either on their own without insurance or on the rolls of state programs like Medicare and Medicaid. Combined with the rising cost of health care as technology transforms medicine, and you have a system that currently allows insurance companies to rake in sky-high profits while the rest of us are facing sky-high premiums we can’t afford to pay. And even if we can pay them, insurance companies work to deny our claims.

The solution is fairly straightforward. We’ve all got to share the risk. Insurance companies should be forced to take on all patients, and public plans should be forced to do the same. This way, risk is shared fairly.

These skyrocketing costs hit businesses hard. As Amber Sparks from UFCW explains, health care costs are now so high, they threaten companies and their employees:

Every time UFCW members go to the bargaining table to negotiate a new contract, health care is the five hundred pound gorilla in the room. It’s the same fight that we face in every contract negotiation these days, that battle for quality, affordable health care for all of our members.

As the costs of health care continue to march up an infinite incline, everyone suffers–employers are no exception. And employers respond by trying to cut their health care costs when negotiating a new contract, forcing us to spend all our energy and resources to preserve the quality of health care and keep workers’ costs down, too.

So, let’s review. Healthy workers are productive workers, so businesses want to offer health benefits to their employees to stay competitive. Yet, because private insurance has blocked fair risk sharing, skyrocketing costs are borne by businesses in the form of higher premiums to insure their workers, and these costs are either passed along to the worker in the form of rising health care contributions, or health benefits are scaled back or cut altogether. In short, our health care system is sapping our productivity and putting a huge burden on our businesses. It goes without saying that this isn’t good for the economy.

At it’s heart, health care is an economic issue, and that’s something that gets the attention of everyone in America, both progressives and conservatives.

So, workers, business owners, and labor activists need to be talking about health care. And to a large extent, most people get it. There is a reason every labor union has health care reform as one of their top political priorities. Now we’ve just got to get the rest of the country on board.

About the Author: Jason Rosenbaum is a writer and musician currently residing in Washington D.C. He is interested in the intersection of politics and culture, media consolidation issues, and making sense out of our foreign policy disasters. He currently works for Health Care for America Now and he is also the webmaster for The Seminal.

Got Plans for Sunday? On Sunday, September 14th, people will gather at over 300 house parties around the country to watch the new film Diagnosis: Now!, a new documentary by Robert Greenwald of Brave New Films, which tells the saga of our failing health care system. If you attend a house party in your area, you can be part of this historical effort to win quality, affordable health care for all in 2009.

Want to check out the trailer for the film? Click here to watch the trailer and find a house party in your area!

If you don’t find a house party in your area, or would rather participate online, Firedoglake.com will be hosting a virtual house party on September 14th at 7pm EST, with special guests Rep. Pete Stark of CA, Jim Gilliam, whose story is featured in the film, and Roger Hickey of Campaign for America’s Future.

Click here to sign up for the virtual house party!

Across America on September 14th, not only will Americans watch this new documentary, but they will mobilize together for change. Be part of this historical effort to win quality, affordable health care for all in 2009!

This post cross-posted at the NOW! blog.

Domestic Workers Lack Adequate Legal Protections

Friday, September 12th, 2008

Mr. and Mrs. Ortega* worked and lived in the D.C. home of Ms. Glasson* for the last 7 years. The Ortegas each worked an average of 60 hours a week, cooking, cleaning, and driving Ms. Glasson around town. Last fall, they were fired without notice, given two weeks severance and immediately evicted from Ms. Glasson’s home. Ms. Glasson was gracious enough to have a U-Haul waiting for them. The Ortegas were never paid overtime.

I wish I could say that this story was uncommon or shocking, but the truth is that I hear some version of this story several times a month. To make matters worse, protecting employees like the Ortegas is difficult because domestic workers are routinely exempt or excluded from many basic workplace laws. For example, the Ortegas, as live-in domestic workers, were not entitled to overtime pay (time and a half their regular rate) for the extra hours they worked over 40 each week, unlike many low-income workers under the Fair Labor Standards Act. Instead, they were only entitled to straight time. Moreover, employers like Ms. Glasson can further underpay domestic workers by deducting things like a portion of the fair market rental value of the housing provided. Try to imagine what the fair market rental value of a room in a $1 million home might be.

Domestic workers are also not protected by the National Labor Relations Act and, thus, have no legally protected right to organize. They are excluded from the protections of the Occupational Safety and Health Act. And the Civil Rights Act (commonly referred to as Title VII), which provides protection from unlawful discrimination, and the Family Medical Leave Act, which provides limited time off to care for oneself or an immediate family member in certain instances, generally do not apply to domestic workers because small employers are exempted from these laws.

Given the lack of legal protections for domestic workers, it is not surprising that the vast majority of these workers are immigrant workers who are paid close to or less than the minimum wage. The Ortegas were lucky. They were paid $10 an hour. A survey conducted by the Montgomery County Council in Maryland found that half of its survey respondents were paid less than Maryland’s minimum wage and 75% reported not receiving overtime pay. And a study by a group in New York City, Domestic Workers United, reported that over 99% of domestic workers in New York were foreign born.

Montgomery County Maryland and New York City have passed “nanny bills,” which take a first step in protecting these workers. The Montgomery County law requires an employer to state the terms and conditions of employment in a written contract and also mandates certain living conditions for live-in domestic workers. The New York City law requires employment agencies to inform domestic workers about their workplace rights and requires employers to sign a statement saying they understand the rules on minimum wage, overtime and Social Security.

While small, these gains are important because most of these workers labor in private homes, where they have little to no access to workplace rights information. For obvious reasons, private home owners are not required to hang those laminated posters in their dining rooms, but there is nothing from stopping the government from requiring that the information be handed to the worker.

Last year, a Maryland jury ordered Redskins owner Daniel Snyder and his wife to pay their nanny over $40,000 in unpaid overtime. There is simply no reason why individuals who can afford to hire domestic workers should not be held to a high standard in providing them with the basic wages and employment standards the vast majority of American workers enjoy.

* The names have been changed.

About the Author: Melvina Ford is the Executive Director of the EJC (DC Employment Justice Center). Prior to joining the EJC as Director of Legal Services in 2005, Melvina was a senior associate at the law firm of Tydings & Rosenberg LLP, in Baltimore, Maryland, where she practiced in the firm’s Litigation Department with an emphasis on labor and employment law. Melvina, however, is not a newcomer to nonprofit advocacy. Before re-entering private practice, Melvina served as the Legal Projects Manager for the Women’s Law Center of Maryland, where she coordinated the Center’s litigation efforts, represented the organization before the Maryland General Assembly and wrote and updated Center publications, such as Sex Discrimination in Employment, a guide to federal and Maryland employment laws for women. Melvina graduated from the Georgetown University Law Center, and she is a member of the Maryland, Virginia, and District of Columbia bars.

Take Back Labor Day: Week 2 Roundup

Friday, September 12th, 2008

For this week’s installment of our Take Back Labor Day project, we had ten new posts representing the incredible quality and diversity that exists among those who think and write about workplace issues. With a wide variety of topics, including domestic workers, CEO pay, and workplace flexibility, and the representation of powerhouse organizations such as the Center for American Progress, the new Health Care for America Now coalition, and Women Employed, Week 2 was another stellar week.

Kicking off the week, on Monday, September 8, were Dr. David Madland and Karla Walter of the Center for American Progress (CAP) and Mark Harbeke of Winning Workplaces.

Madland and Walter, of the Center for American Progress‘s American Worker Project, point out the abysmal record of the current administration when it comes to having the Department of Labor simply do its job of protecting workers.  What’s the solution (besides voting, of course)?  Passing the Employee Free Choice Act, which the next administration should have the opportunity to do.

Winning Workplaces helps small and midsize organizations create great workplaces, and often it’s Mark Harbeke bringing some of the very best workplace practices and hottest workplace trends to our attention.  This post was no exception, as Mark found three different studies that all make it crystal clear that employers have to engage their employees, if they want them to be productive and satisfied with their work.  If you’re too busy to read the handwriting on the wall, just read Mark on a regular basis at the Winning Workplace blog.

Continuing on Tuesday, September 8, were workplace columnist Bob Rosner and Anne Ladky of Women Employed, respectively tackling the hot topics of CEO pay and paid sick leave.

In a bit of workplace Freakonomics, who figured out that CEO performance has an inverse relationship with their house size? No, it wasn’t Bob Rosner, but he tells us about the study that figured out that the larger the CEO’s house, the more likely that shareholders will pay for the CEO’s poor performance. Pay close attention to Bob — you’ll be seeing a lot more of him soon around these parts!

Anne Ladky of Women Employed provides us a great way to track our progress between this Labor Day and next:  have we passed a federal paid sick leave bill?  If not, we’re not done ensuring fairness in the workplace, while a benefit considered standard by most professionals—paid sick time—is unavailable to millions of lower-paid workers, including 22 million women.

Wednesday, September 10 featured two titans among lawyers who represent workers:  Paul Tobias and Ellen Simon.

Paul Tobias, who can count founding Workplace Fairness and the National Employment Lawyers Association among his myriad of career accomplishments, uses Labor Day to identify a number of necessary changes we need to our employment laws for workers to get a fair shake.  As he remarks, we all hope that the presidential candidates will take note of these needed changes and actually fix them during the next administration.

Ellen Simon, one of the foremost employment and civil rights lawyers in the United States, tells us about a recent surprisingly positive Supreme Court decision (Sprint v. Mendelsohn), which gives us a slight bit of hope that the Court — not especially known for its friendliness to workers — will actually enforce the long-standing rules of evidence, even when to do so might benefit workers.

Thursday, September 11, was a somber day of remembrance for many of us.  Blogger Jason Gooljar looked back to the very origins of the Labor Day holiday, while Chai Feldblum and Katie Corrigan looked to the not-too-distant future of the flexible workplace.

Jason Gooljar, blogger Working Families Party Man, points out what even the most worker-friendly among us might not know about Labor Day: that it was proposed as a September holiday to prevent the celebration of what was considered a much more radical observance:  May Day.  While we may now observe a watered-down holiday, we don’t have to have a watered-down global labor movement, and Jason tells us why that’s important.

Chai Feldblum and Katie Corrigan, who co-direct the Workplace Flexibility 2010 campaign at Georgetown Law, talk about how many workers have extreme difficulty juggling the competing demands of work, family, and community involvement.  Workplace flexibility (including telecommuting, phased retirement, and flexible work arrangements) is a solution which can ultimately bring about more effective business, a stronger workforce, and healthier families — if enough businesses choose to embrace flexibility principles and practices.

Week 2 wrapped up on Friday, September 12, but we didn’t slack off at the end of the week, with Melvina Ford and Jason Rosenbaum tackling two urgent workplace problems:  the lack of sufficient legal protections for domestic workers, and the lack of adequate health care for many, if not most, American workers.

Melvina Ford, Executive Director of the DC Employment Justice Center, identifies a problem hardly confined to the DC metro area:  the exploitation of domestic workers who cook, clean, and take care of children and seniors at home.  She correctly notes that many current laws weren’t written with domestic workers in mind, and either exempt them entirely or do not adequately protect them.  Some recently enacted laws show promise in educating oft-exploited workers about their rights, but we need to do even more to ensure that domestic workers are fairly compensated for their often back-breaking work.

Jason Rosenbaum, writing for the recently formed Health Care for America Now! coalition, makes a relatively obvious but incredibly overlooked connection:  a healthy worker is a better, more productive worker, and sick workers who lack adequate insurance sap productivity.  Yet both businesses and employees face skyrocketing health care costs as a result of insurance company intervention.  Yes, health care is an economic issue — and a vitally important one that we are forced to address in the days ahead.

Whew:  health care, CEO pay, domestic pay, the Supreme Court, the Department of Labor:  you name it, we covered it in week 2, if it’s important in today’s workplace.  And next week continues the fine tradition we’ve established this month:  with at least five guest bloggers continuing the quality posts you’ve seen all month.  Stay tuned!

Remember, remember the fourth of May

Thursday, September 11th, 2008

Many people don’t think about Labor Day. They see it as another day off from work. It’s a day when the retail corporations offer incentives to come out and consume. Yet, even those who have an inkling of what Labor Day is and what it’s about don’t realize that this day masks the real defiance and spirit of the workers’ movement.

The Knights of Labor were the driving force behind making the Labor Day of September officially recognized. They were aided in this effort by President Grover Cleveland who sought to commemorate this day instead of another more historic day in May 4th in which many in the international labor movement sought to recognize in the May Day of May 1st.

It was the events that occurred in May 1886 that eventually brought about the eight-hour work day. Starting on May 1st of that year there were thousands of rallies organized in support of eight-hour workdays. The one rally that forever ingrained May Day in our collective memories was the one which occurred on May 4th in Haymarket Square in Chicago.

If there is one thing that is true about labor versus capital, it is the reality that nothing is ever won by labor without a fight. Working people often face violence, repression and hostility when trying to organize and wring concessions from corporations and sometimes government. It is as true then, in the late nineteenth century, as it is now in the early twenty first century. If we want to take back Labor Day on whatever day we celebrate it–we must show people that this truth of the struggle is far from being over.

It was then with this ever present reality that striking and locked out McCormick Harvesting Machine Corporation plant workers in Chicago—which were attacked by Pinkerton thugs and then cut down by the police in gunfire on May 3rd—had had enough and organized a protest to take place at Haymarket Square.

The rally that occurred in Haymarket Square that day was meant to be peaceful. Unfortunately it did not end that way. Someone threw a pipe bomb at the police which resulted in anarchy as gunshots filled the air. Many police officers and bystanders were injured mostly by friendly fire. In the end seven police men and four workers were killed.

Afterward it is the trial that ensued and the injustice that the rally’s organizers faced is what gave the Haymarket Affair its notoriety. Eight people were charged and seven were given death sentences, including August Spies, a leader and labor activist.

It is my opinion that this trial was also used to try and discredit the workers and their cause. Thankfully this did not happen and we can thank organized labor for the eight-hour workday (and five-day workweek) today.

Yes, we enjoy benefits that the labor movement of the past worked to get us, but there are new issues and needs that we must address and fight for. We need to start working to organize sectors of the new economy like IT and the service-based jobs. This work has already begun and hopefully it will prove successful. We also need to look to the new green-collar jobs that will come into being. We also shouldn’t give up entirely on manufacturing. As the cost of oil rises we will probably see a return of some manufacturing jobs to America. We have to also look to organize plants that are opened in the US by foreign corporations. We have to focus on affordable college education and ensuring that the workforce is educated for any new sectors of the economy that may become a reality. Last but not least, universal healthcare and affordable housing are issues that deeply concern working America and must continue to be focused on until working families get what they need.

I think that another thing we must also do is to start thinking of a global labor movement. Corporations have successfully globalized, but labor is still at the very beginning of doing this. If manufacturing jobs are going to leave the developed countries that doesn’t mean that workers in other countries should be allowed to be taken advantage of. We can work to organize these workers as well. Every few months I read of tens of thousands of workers in developing countries going out on strike. We need to work on forming global labor unions. To take back Labor Day and make it truly a holiday to celebrate for not only America’s workers but for workers everywhere, there are many things we must do. Probably the one thing we can do as a society is also recognize that we can’t continue a race to the bottom. We can’t put the bottom line above people. Profit maximization and the lowest possible prices for the consumer isn’t everything. If we have to pay a little more as consumers and earn a little less as corporations then maybe it’s not a bad thing if it ensures more people have jobs and a secure life.

About the Author: Jason Gooljar is a progressive liberal blogger currently employed in the progressive movement and living in the DC metro area. A native New Yorker, Jason first got involved with political and civic issues in 1998 during his senior year in high school. At the time he was an intern and learned about the workings of local government in Westchester County, NY. Since then, he has worked as a paid staffer on two state senate campaigns and one gubernatorial campaign in NY. He was also a member of the first class to be trained in online organizing by the DC-based non-profit the New Organizing Institute in the winter of 2006. Jason holds an Associates degree in Multimedia Development and Management. His future goals include going back to school to study political science or a public policy-related area. While Jason always had an interest in politics, it was witnessing the 2005 TWU Local 100 transit strike in NYC which really galvanized him to focus on labor issues. In addition to labor issues Jason’s other areas of focus when he’s blogging is corporate abuse and consumerism. You can find him online at www.jasongooljar.com, where this post is cross-posted.

Workplace Flexibility – A New Standard for the American Workplace

Thursday, September 11th, 2008

In today’s difficult economy, we are all more acutely aware of the changing nature of work in this country. American employees are increasingly concerned about job security and losing crucial benefits–while the demands on them in a 24/7, global marketplace have intensified exponentially. Many employees are working more hours than ever before, while others–especially low-wage workers and those in the growing contingent workforce–have little or no control over how many hours they will work in any given week.

As our workplaces have become more demanding, the demographics of the American workforce have shifted dramatically. For most American families, the reality of today’s economy is that both members of a couple must work full time–and even that leaves many families stretching to cover the rising costs of gas, groceries, and health care.

As a result, many American employees struggle to meet the demands of work while also meeting family responsibilities as critical as caring for a sick child. Indeed, the need for workplace flexibility among American employees of all ages, professions, and income levels is urgent. A significant majority of workers report that they do not have the flexibility they need to succeed at work and still fulfill serious personal obligations–be it caregiving for a child, a spouse, or a parent, volunteering in the community, attending religious services, or obtaining advanced training.

Workplace flexibility:  an approach that encompasses options from flexible work schedules and telecommuting to extended time off and phased retirement–is a solution at the crossroads of a myriad of pressures facing our workforce. Flexibility can help ease the intense strain felt by millions of American workers trying to balance work with the needs of their families. For example:

The benefits of these and other types of flexibility are already being seen in workplaces across the country–and workplace flexibility is now being used as a strategic management tool in a diverse range of industries. By reducing turnover rates, boosting recruitment, and enhancing efficiency and performance, a growing number of business leaders are recognizing that flexibility can actually increase their competitive advantage.

Workplace flexibility can support both employers and employees in meeting the demands of the 21st century economy. But in order to make workplace flexibility a new standard of the American workplace, we must not only encourage voluntary business practices–but also develop consensus-based, common-sense public policies that work for families and in the marketplace.

Over the last several decades, the policy debate around the intersection of work and family has been plagued by a political stalemate. But we believe that through meaningful dialogue with business leaders, labor representatives, family, aging and disability advocates–and policymakers from both sides of the aisle–we can develop comprehensive workplace flexibility solutions that bridge political divides in Washington and beyond.

As workplace flexibility becomes an integral part of the American workplace, we believe it will ultimately support more effective business, a stronger workforce, and healthier families. And those are standards we can all agree on.

For more information on Workplace Flexibility 2010 and our consensus-building process, visit www.workplaceflexibility2010.org.

About the Authors: Chai R. Feldblum is a Professor of Law at Georgetown University Law Center in Washington, D.C., Director of Georgetown’s Federal Legislation Clinic, and Co-Director of Workplace Flexibility 2010.

Katie Corrigan is the Co-Director of Workplace Flexibility and an Adjunct Professor of Law at Georgetown University Law Center.

Supreme Court Surprise

Wednesday, September 10th, 2008

Three years ago, I was interviewed by Court TV about the John Roberts nomination. In preparation, I painstakingly reviewed his record. In so doing, I reached the unpleasant conclusion that Roberts was philosophically opposed to civil rights and other legislation for the public good which Roberts deemed to an improper exercise of congressional power.

The Roberts’ point of view, it seemed to me, was that since Congress should not have authored this legislation to begin with, it must be as narrowly construed as possible. This was the only logic I could discern which connected a long record of what appeared to be outright hostility to plaintiffs in civil rights cases.

I was extremely worried about what might happen with Roberts at the helm of the Court. The Samuel Alito nomination, with a record equally as hostile to plaintiffs in civil rights cases as that of Roberts, made me feel even more concerned. The harsh reality of Clarence Thomas and Antonin Scalia combining with these forces was a truly frightening prospect.

But the fact remains that we never really know with any precision what one will do after ascension to the Supreme Court actually occurs. Nothing surprised me more than the Court’s decision this past year in the decision of Sprint v. Mendelsohn – and it was a very pleasant surprise indeed.

Civil rights cases are hard to prove. There is seldom direct evidence of discrimination. People don’t go around saying, “we’re not going to hire you because you’re black,” or “we’re firing you because you’re old.” More often than not, we have to prove our cases by circumstantial evidence. Part of that evidence is proving that the reason give by the employer’s decision to fire, or not hire, is not true or not believable.

Other circumstantial evidence routinely offered is that the same thing or something similar happened to co-employees. The admissibility of this kind of evidence, labeled by the defense bar as “me too” evidence has been a battleground since we started trying to prove these cases over a quarter century ago.

Lawyers who represent employees want to call other employees as witnesses to testify about the discrimination that happened to them at the same company. Simply put, these lawyers contend that co-employee testimony is circumstantial evidence that this company discriminated in this particular case because it did the same thing to other employees. In their view, the jury ought to be able to consider this evidence and give it whatever weight they choose in making the ultimate determination as to whether the plaintiff was discriminated against or not. Lawyers who represent companies don’t want those witnesses to take the stand. They say that what happened to others is not relevant, proves nothing, is confusing and prejudicial, and will result in a bunch of mini-trials about other people who are not parties to the case.

Some courts have let the evidence in. Some courts have barred it. The significance of this kind of ruling can not be overstated since one’s ability to put on co-employee testimony before a jury can make the difference as to whether the case will be won or lost. For example, where a story about why one thirty-year employee got terminated may seem plausible in isolation, it certainly seems less plausible when there are five or six other long term employees whose performance was suddenly not good enough for a company where each has worked without incident for twenty or thirty years.

Ellen Mendelsohn was terminated in a reduction of the workforce by Sprint, a company where she had worked for many years. She claimed age discrimination. Mendelsohn’s lawyer (Kansas City lawyer Dennis Egan, member of the Workplace Fairness board) attempted to introduce evidence from five other older workers who also claimed they were discriminated against because of their age when they were terminated. Three of the five were prepared to testify about denigrating remarks made about older workers. Another claimed that he was banned from working at Sprint because of his age. One was going to testify that he was required to get permission before hiring anyone over the age of forty. None were in the same department as Mendelsohn. The judge ruled the evidence inadmissible because there was no shared decision maker and no temporal proximity. The Tenth Circuit Court of Appeals reversed and held that the evidence was admissible.

The Supreme Court accepted the case. In a decision which has a profound effect on the future of employment discrimination cases, the Court held that the trial court judge was wrong. The unanimous decision, shockingly authored by Justice Thomas, stated that a blanket rule of law excluding evidence of discrimination from co-workers in a discrimination case was wrong as a matter of law. The Court relied in its opinion on the Federal Rules of Evidence with respect to relevance, admissibility, and prejudice which vests the trial court with broad discretion on these matters. The trial court should determine whether the evidence has probative value and whether sufficient prejudice or confusion may outweigh it. It is a fundamental and liberal standard of evidence which leans toward the admission of evidence given the proper context and foundation.

So while the decision did not endorse the 10th Circuit’s view in concluding that the evidence was admissible, the opinion is earth shattering in the world of employment law for what it didn’t say – that is, that the evidence was not per se inadmissible. In other words, the Court ruled, “me too” evidence should be treated just like any other evidence in any other case.

It may seem odd that it took a pronouncement of the Supreme Court to let judges and lawyers know that the same rules that apply to evidence in all civil cases also apply in discrimination cases. But in the tortured history of discrimination litigation, the same rules unfortunately have not been applied (i.e., the granting of summary judgment where material facts are in dispute, the improper weighing of evidence by the court instead of the jury).

An opinion by the Supreme Court which held the evidence inadmissible would have been a huge blow to employees faced with the already formidable task of proving that discrimination has occurred. Fortunately, the Supreme Court in an exceedingly pleasant surprise made an important inroad–just by reciting and reinforcing the rules of evidence and thereby neutralizing the playing field.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case – the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. Ellen has two children and lives with her husband in Sedona, Arizona.

The Importance of Labor Day: A Word from Our Co-Founder

Wednesday, September 10th, 2008

Labor Day gives us a chance to review necessary changes in our labor/employment laws.

1.  Employees need greater protection from economic layoffs by:

  • requiring all employers give more advance notice,
  • mandating reasonable severance pay,
  • availability of career counseling and job training,
  • extending employer paid health insurance for a reasonable period.

2. Employees need more protection from arbitrary, unfair, unjust terminations for alleged performance and misconduct issues.  The cruel employment-at-will doctrine needs to be eliminated by the judiciary and legislation.

3. The Family & Medical Leave Act (FMLA) should be expanded to cover small employers, and part time and new employees.

4. Adequate medical treatment should be available to all Americans, through health insurance or a single-payer program like Medicare.

5. The National Labor Relations Act should be amended to:

  • permit awards of punitive damages against employers who commit unfair labor practices,
  • prevent employers from depriving unions of their ability to organize and bargain collectively.

6. Employees should have protection of their right of privacy concerning strictly personal email and off-duty conduct.

Hopefully the candidates in the upcoming Presidential election campaign will focus on these and other issues affecting employees rights.

About the Author: Paul H. Tobias is senior partner in the firm of Tobias, Kraus & Torchia in Cincinnati, Ohio where he now specializes exclusively in the rights of individual employees.  He has specialized in labor and employment law for 50 years. He is the author of 15 published articles and three book chapters in the field of labor and employment law; has taught a labor law seminar at the University of Cincinnati (1975-1977); and has made over 150 presentations to Bar Associations and other groups concerning employee rights.

Tobias is the founder of the National Employment Lawyers Association (NELA: Advocates for Employee Rights) and served as its first Executive Director, Chairman and Editor of the newsletter “The Employee Advocate.”  He is the Co-Founder and former Chair and Executive Director of the National Employee Rights Institute (NERI, now Workplace Fairness).  He is the author of a three volume work: “Litigating Wrongful Discharge Claims” (Callaghan/West 1987) and co-author of “Job Rights and Survival Strategies – A Handbook for Terminated Employees” (NERI 1997).  He has recently been the leader of groups of lawyers studying employment and labor law procedures and issues on five trips abroad to other countries. Tobias is on the Board of Governors of the National College of Labor and Employment Lawyers and is founder of the Ohio Chapter of the College.  He is a founder of the Senior Lawyers Division of the Cincinnati Bar Association. Tobias is a graduate of Harvard College (AB 1951) and Harvard Law School (LLB 1958).

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