Outten & Golden: Empowering Employees in the Workplace

Archive for October, 2008

Help Wanted: A Secretary of Labor Who Cares About Workers

Tuesday, October 28th, 2008

We need a Labor Secretary in the mold of Francis Perkins, whose top priority was to help the working man.

In recent days, colleagues have asked me to write about the near-collapse of the economy. My first response was to decline — recognizing all too well that I, like most of our nation’s leaders, was not entirely clear about what was going on. I’ve always been a big believer that wisdom is about knowing when to keep your mouth shut (or fingers away from the keyboard). As Proverbs 17:28 says, “Even a fool, when he keeps silent, is counted wise. When he shuts his lips, he is thought to be discerning.”

Although I must admit that I am still not completely clear about what all has occurred and has not occurred, I am more convinced than ever that we need a Secretary of Labor who cares about workers and who will at least try to address issues faced by workers. Unfortunately for the nation, we have a Secretary of Labor who is Missing in Action.

When the unemployment figures came out last week, Secretary of Labor Elaine Chao issued a one-sentence statement: “Today’s employment report provides further evidence of the need for the House of Representatives to pass an economic rescue package today, before it adjourns, which will protect Main Street America and mitigate further job loss,” said U.S. Secretary of Labor Elaine L. Chao. That’s it. That’s all she could muster on the subject.

The day before, she’d given a lengthy speech to the Chamber of Commerce decrying the “Europeanization” of the workplace and denigrating unions. Meanwhile, her Wage and Hour Administrator, Alexander Passantino, claims the Division is doing a great job enforcing wage and hour laws. I’m sure the Education and Training Administrator says the agency is doing a great job there too. Throughout Chao’s speeches over the last year she’s been claiming what a great job the Bush Administration is doing for working people. Well, the emperor has no clothes.

In the midst of the economic meltdown, dramatically rising unemployment figures, military-style immigration raids in workplaces, employers stealing wages like there’s no tomorrow, young people unprepared for today’s jobs — let alone tomorrow’s — and assaults against unions and the right to organize at an all-time high, we need a Secretary of Labor who sees it as his or her job to protect workers. The Secretary of Labor must be the preacher in the bully pulpit for better working conditions for all the nation’s workers. Even if she can’t do anything, she could reach out and talk with workers.

Frances Perkins.

Frances Perkins was the Secretary of Labor appointed by Franklin D Roosevelt in 1932 to help him address the economic crisis left him by eight years of Coolidge and Hoover leadership.

She came to Washington, D.C. with a mission — in her words, to serve God, FDR and the working man. She came with a vision. She wanted to get people back to work, pass national standards for wage payment, and establish a social security system. She and her colleagues created the jobs programs that built many of our nation’s parks and bridges, she passed the Fair Labor Standards Act, the most comprehensive wage protection law in the nation, and she helped design the Social Security System.

Learning from the lessons of Frances Perkins, here’s what the new Secretary of Labor should do:

First, advocate stopping the workplace immigration raids. When Frances Perkins took over, the Department of Labor was responsible for workplace raids and she stopped them immediately. They were wrong then and they are wrong today.

Although Homeland Security, not Labor, has jurisdiction for Immigration and Customs Enforcement (ICE), the Labor Secretary should speak forcefully against this intimidation of workers that is a gross waste of taxpayer money.

Second, enforce the wage and hour laws in meaningful ways. Employers are stealing billions of dollars annually from the paychecks of millions of workers. Wage theft is a national crisis and the Department of Labor is asleep at the wheel. Just as an unregulated banking industry has brought forth catastrophe, unregulated workplaces have enabled employers to steal wages from workers on a mass scale. In 1941, Frances Perkins had 1,500 investigators in the field visiting 12 percent of the country’s workplaces to ensure that employers were paying people legally. Today, with more than 10 times as many workers covered by the Fair Labor Standards Act, there are half as many investigators. Employers know that the chances of getting caught stealing wages is minuscule and that if they are caught, the consequences are insignificant. The Secretary must go after wage theft. What better economic stimulus for the society than workers getting the wages they are owed and spending them in their communities?

Third, lead the charge in supporting unemployed workers. Unemployment insurance should be available widely to workers and job creation strategies should be pursued aggressively both through public incentives for private job creation and public jobs programs. Let’s create those green jobs everyone is talking about.

Fourth, commit to developing the 21st-century supports America’s workers need. During Perkins’s time, she focused on putting in place social security for America’s workers. Today, we need a national health care program. Forty-seven million workers and their families without health care is not in the best interest of workers or the nation as a whole. The Secretary of Labor should play a role in guaranteeing health care to all Americans.

Fifth, support the fundamental rights of all workers to organize into unions of their choice. Although Perkins wasn’t the first choice of labor unions for secretary, she overcame their hesitations with her steadfast support for workers’ rights to organize in the workplace. Elaine Chao, in contrast, has used her public voice to attack the Employee Free Choice Act, the most significant labor law reform to come along in decades.

When the economy is in shambles, it is America’s workers who take the biggest hit. Perhaps in the coming weeks and months, we will all understand better what has happened to our economy. But as we move forward as a nation in addressing the crisis, we need a Secretary of Labor who knows workers, cares for their concerns and speaks up for them. Our current Secretary of Labor is missing in action. We need to put the Labor back in Secretary of Labor.

About the Author: Kim Bobo, Founder and Executive Director of Interfaith Worker Justice, writes the “Dispatches from the Workplace” column for the online magazine Religion Dispatches. She is the author of Wage Theft in America: Why Millions of Working Americans Are Not Getting Paid — And What We Can Do About It (forthcoming in December from the New Press) and the co-author of Organizing for Social Change, the best-selling manual on progressive activism in the U.S.

This article originally appeared on the God’s Politics Blog (www.godspolitics.com).

Voters rebel at 'fat cat' bailouts

Friday, October 3rd, 2008

Do not bail out the fat cats.

Voters made that perfectly clear, and their re-election-obsessed congressional representatives took heed.

Delaying a Wall Street bailout wasn’t wise for the international economy, but chalk up points for the worker bees.

They finally got someone’s attention in Washington!

Nobody bails me out if I make bad financial decisions.

And, while we’re at it: No more multi-million-dollar parachutes for executives who mismanage other people’s money.

How quickly the “bailout” became a slightly more politically palatable “rescue.”

Note to Congress:

You’ve noticed that “trickle down” hasn’t worked very well lately, haven’t you?

Average CEO compensation last year was 275 times that of average U.S. worker pay, based on average hourly pay for about 80 percent of the U.S. workforce (the folks who actually produce the products and services that make companies work).

In a single work day last year, a typical big-company CEO earned as much as one of those workers did in their entire 260-day work year.

The well-paid corporate compensation consultants counterpunched, of course, telling Congress not to “handcuff” companies by putting limits on executive pay. They said pay ceilings will hurt companies’ ability to attract top talent.

Yeah. It’s been working so well.

It’s over-reaching the cure to demand a shareholder vote on top-exec compensation. But as the nation works through this financial crisis, the folks in the trenches must be heard.

Enough is enough.

Executives who earned more than they were worth to start with should not, by all that is right and just, be rewarded when they leave behind organizations littered with pink slips.

And have you looked at the value of your 401(k) this week?

Ouch. The only trickle-down there is the sound of assets swirling down the drain.

And where is the call for privatizing Social Security now?

Not exactly an election-time winner this go-around, huh?

Yes, the economy is cyclical. Has been. Will be. But the hurt on the downsides must be shared.

Unless legislators do what corporate compensation committees haven’t had the backbone to do, most of working America will continue to suffer from the greedy mistakes of a few.

Regulation? In this case, bring it on.

Unlimited executive greed has severed people from jobs and jobs from the economy. It’s gnawed away retirement security and college education funds in hard-working families.

And the architects of this economic collapse?

Greet them if you’re ever in Sun Valley…or Aspen…or Tuscany…or…

About the Author: Diane Stafford is the workplace and careers columnist at The Kansas City Star. A veteran journalist, she has held several reporting and editing positions at The Star on both the business and metropolitan desks. Currently, she writes columns that appear in The Star on Thursdays and Sundays as well as other business and economic news articles throughout the week, accessible at www.kansascity.com. Her daily “Workspace” blog also is available at www.workspacekc.typepad.com. She is the author of “Your Job: Getting It, Keeping It, Improving It, Changing It,” a career advice book. She holds bachelor’s and master’s degrees in communications from Stanford University.

Cross-posted at Workspace.

New Whistleblower Protection for Consumer Product Safety Issues

Wednesday, October 1st, 2008

On August 14, 2008, the Consumer Product Safety Improvement Act became law. Of interest to employees and their advocates is a new whistleblower provision. The Act creates a legal protection for employees who raise concerns about the safety of consumer products.

About 20 million Americans work for employers involved in the manufacture, distribution, and sale of consumer goods. Now they are protected from retaliation when they provide information about a violation of the Consumer Product Safety Act to their employer, the federal government, or any state attorney general. Employees who believe they have suffered unlawful retaliation have 180 days (from their first notice of the retaliatory act) to file a written complaint with the Occupational Safety & Health Administration (OSHA). However, if the safety violation involves toxic chemicals, and if the written complaint is filed within 30 days, then the employee can also seek punitive damages under the Toxic Substances Control Act (TSCA).

This new CPS Act protections provides for jury trials, compensatory damages, temporary and final reinstatement, and attorney fees. Congress protects employees as long as they have a reasonable basis to believe there is a violation. If the company proves that there was no violation, they still cannot retaliate against employees who reasonably raised a concern. Also, complaining employees only have to show that the unlawful motive was a contributing factor in the retaliatory act. Then the employer will have to prove, by clear and convincing evidence, that it would have imposed the same adverse action even if the employee had engaged in no protected activity.

If the Department of Labor takes more than 210 days to issue a final order, then the complainant can file a new action in U.S. District Court to seek a jury trial.

The National Whistleblower Center (NWC) is sponsoring a training seminar about this new law on November 21, 2008, in Washington, DC. It will be an opportunity to attorneys and other advocates to learn about the provisions of the new law, the Department of Labor’s plans for investigation and adjudication, and NWC’s strategies for maximizing the opportunities to get good results in the first court decisions under this new law. For more information about this seminar, see NWC Seminar on CPSIA.

About this Author: Richard Renner is a leading advocate for whistleblowers, with a long record of service for labor organizers and civil rights. He is a member of the Executive Board of the National Employment Lawyers Association (NELA) and a former Co-Chair of NELA’s Whistleblower Committee. Prior to joining the National Whistleblowers Center in 2008, Mr. Renner worked for 27 years as a lawyer in Ohio where he was a founding partner in the firm of Tate and Renner. Mr. Renner is the author of several articles including: “Federal Environmental Whistleblower Complaints,” in, Employee Rights Quarterly, Vol. 3, No. 1 (Summer 2002), pp. 29-34; “Whistleblower Book Helps with All Retaliation Cases,” a review of Concepts and Procedures in Whistleblower Law, NELA Employee Advocate, Spring 2001, p. 24; “Federal Whistleblower Complaints,” feature article for Ohio Employment Lawyers Ass’n Newsletter, October, 1996.

Defense Attorneys Make Excuses, But the Outcome is the Same

Wednesday, October 1st, 2008

When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:

  • When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
  • There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
  • Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.

Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases.  And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.

Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day.  (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.

1.  Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.

There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years.  Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above.  Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case:  either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.

But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case.  Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true.  Bottom line:  the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad.  They’re two completely different things that both happen to affect workers.

2. More cases are ending up in arbitration, instead of the courts.

Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,

“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.”

Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (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). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.

3. More plaintiffs are going to state court instead of federal court.

In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.

However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.

4. More cases are being resolved by the EEOC pre-litigation.

Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.

But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.

Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.

Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.

So let’s review:  reducing the number of cases in federal court, no matter what the reason, doesn’t:

  • explain why plaintiffs fare so much worse in front of federal district court judges than juries;
  • explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;

And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”

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