Outten & Golden: Empowering Employees in the Workplace

Archive for November, 2008

What Will First Lady Michelle Obama's Work-Life Balance Efforts Look Like?

Tuesday, November 18th, 2008

We have heard for some time that Michelle Obama’s pet concerns on the campaign trail, which she hoped to be able to continue while in the White House – and will indeed be able to after last week’s dramatic election finish for her husband, President-Elect Barack – are helping families create a healthy work/life balance and easing the struggles for military families.

It’s no wonder the former is an issue that’s close to Mrs. Obama’s heart.  This article from the UK-based Telegraph newspaper talks about her own work/life balance struggles, in three distinct phases of her life: while growing up on the South Side of Chicago and seeing an ailing father continue to work hard, and leave business matters at the office; while herself transitioning from the legal field to civic and community work after marrying Barack and having their two daughters, Malia and Sasha; and most recently while Barack was on the campaign trail.

Mrs. Obama even wrote a heartfelt essay on the topic of work/life balance last month on the popular BlogHer community of women bloggers.  Here’s how she spells out the plight for working women:

As we all know, our country is in the midst of a major economic crisis.  And we’re all feeling the effects.  …

And folks are feeling it at the workplace.  Because right now, thousands of women across the country don’t have family leave at their jobs.  And those who do can’t afford to take it because it’s not paid.  And 22 million working women don’t have a single paid sick day.

That’s just unacceptable.  Families shouldn’t be punished because someone gets sick or has an emergency.

This is from the employee perspective, but Obama’s cause has direct implications for small and midsize business leaders.  Morra Aarons-Mele, a graduate student specializing in women and leadership, framed this exceptionally well recently on The Huffington Post,

Why should we care about “work life” issues when our savings and retirement funds are literally halving by the day?  Because “work life,” as nondescript as it may sound, is the stuff that keeps American families afloat.  Work life refers to issues ranging from sick leave to health care to early education and child care.  It also encompasses flexibility and better work-life balance, which have strong effects on companies’ bottom lines and employee productivity.

So what would organizations’ employee engagement activities geared toward helping workers achieve a more harmonious balance look like – ideally – four or eight years from now?  Obama hinted at this during a plenary address she gave at our annual small business leadership conference two years ago, when she spoke about creating relationships between businesses and the community.

Community organizing didn’t just help Barack become President-Elect; it has also helped his wife use resources at her present employer, the University of Chicago (and later its Hospitals) to transcend both entities from simply a “name” in their neighborhood to a visible, tangible source of inspiration and assistance.

As we spelled out in our article summarizing her remarks at our event, Obama pointed to the creation of such initiatives as school “Principal-For-A-Day” and community fitness programs as ways to not only bring the University’s and Hospitals’ employees out in the open, but to better connect their passions to their work.

This model has been readily adopted, to great effect, by some of the firms we’ve since honored as Top Small Workplaces.  For instance, 2008 winner The Redwoods Group, an insurance provider for YMCAs and Jewish Community Organizations that’s based in North Carolina, requires its 100 employees to volunteer 40 hours of service annually to nonprofits.  A condition of their employment, the company argues this has contributed directly to their steady employee growth (27% over the last two years) – including the ability to recruit cost effectively – and industry-low turnover (less than 6% on average the last two years).

So one plausible – again, ideal – work/life balance scenario is the government serving an encouraging, perhaps advisory role in helping small business leaders adjust their employee engagement best practices so employees can focus their passions on helping their communities, while at the same time benefitting the organization through enhanced workplace team building and lower rates of absenteeism and presenteeism.

Do you concur?  Or do you see Obama’s work/life-related efforts playing out differently?

Cross posted at Winning Workplaces

Hard Knocks in the Workplace

Monday, November 17th, 2008

Many federal laws protect the rights of working men and women, but recent Supreme Court decisions have made some of these laws a dead letter, and employers know they can violate them with virtual impunity. As a result, today’s workers are defenseless against certain blatant violations of their rights.

The most recent of these decisions, Ledbetter v. Goodyear Tire & Rubber Co. (2007), concerns Lilly Ledbetter, who tried to enforce the prohibition against gender wage discrimination in the 1964 Civil Rights Act. Ledbetter worked for the Goodyear Tire and Rubber Company from 1979 to 1998, during which period Goodyear paid her less than her male counterparts. Like most employers, Goodyear keeps salaries secret. Ledbetter learned of the discrimination only when she retired; by then the pay discrepancy had become very large. When she sued for back pay to make up for the accumulated shortfall, a 5-to-4 majority ruled that because she hadn’t complained to the Equal Employment Opportunity Commission within 180 days after the discriminatory act first occurred–when she hadn’t even known she was being discriminated against–she was entitled to absolutely nothing. At a time when women on average still earn significantly less than only a fraction of similarly qualified men, the decision creates an often insurmountable barrier to the right to equal pay.

A worker’s right to receive medical benefits through an employer’s health plan is supposed to be guaranteed by the federal Employee Retirement Income Security Act (ERISA). Supreme Court opinions have, however, interpreted ERISA as effectively pre-empting lawsuits predicated on a failure to provide those benefits. At the same time, the Court has interpreted ERISA to provide an inadequate set of federal remedies, opening, as one distinguished lower court judge put it five years ago, a “gaping wound” in the statute. Thus, if an HMO improperly denies coverage of a particular medical procedure or a hospital stay under ERISA, the patient must either pay for the procedure personally and then sue for reimbursement–a financial impossibility for most workers–or seek an emergency court order forcing the HMO to provide the needed benefits. HMO officials understand very well that both remedies are wholly impracticable for most workers.

The 4.7 million employees of state governments have lost even the possibility of enforcing their rights under such important federal laws as the Fair Labor Standards Act, which governs minimum wages and overtime; the Age Discrimination in Employment Act; and the Americans With Disabilities Act. These statutes expressly authorize state workers to sue to enforce their rights; yet in Alden v. Maine (1999), a 5-to-4 majority of the Court held that if states violate these laws, state sovereignty blocks victims from suing.

One final example: undocumented workers in the United States are legally entitled to many of the same rights as American citizens. In 2002, however, the usual 5-to-4 majority ruled that an employer who illegally fired an undocumented union organizer did not have to release back pay. Although it is technically illegal to fire any worker for joining a union, resisting sexual harassment, complaining about discrimination or receiving less than the minimum wage, after that decision no prudent undocumented worker would dare to complain because she would have no remedy if she were fired for having done so. The decision–Hoffman Plastic Compounds v. NLRB (2002)–thus encourages employers to hire undocumented workers, since they can violate the workers’ rights with impunity.

Many of these injustices could be corrected with legislation, but without a progressive Congress and president, HMOs and business groups will be able to block any significant changes. Which is another reason why the upcoming elections are so crucial.

Cross-posted in The Nation‘s November 3, 2008, edition.

About the Author: Eric Schnapper is a professor of law at the University of Washington School of Law, teaching Civil Rights, Civil Procedure and Employment Discrimination.  He served for twenty-five years as an assistant counsel to the NAACP Legal Defense and Educational Fund, Inc., specializing in appellate litigation and legislative activities.

Most recently, Professor Schnapper won three U.S. Supreme Court cases, including two high-profile employment discrimination cases, Burlington Northern Santa Fe Railway v. White (June 22, 2006) and Ash v. Tyson Foods, Inc. (Feb. 21, 2006). In addition, he has handled more than seventy Supreme Court cases, including Kolstad v. ADA (1999), Bogan v. Scott-Harris (1998), Oncale v. Sundowner Offshore Oil (1998), Faragher v. Boca Raton (1998), and Burlington Industries v. Ellerth (1998).

Obama and the Future of Labor and Employment Law

Thursday, November 13th, 2008

Obama With the historic election of Barack Obama as the 44th President of the United States and the substantial gains for Democrats in the House and Senate, there is almost certainty that there will be significant labor and employment law reform in the near future.

Not being a shrinking violet by any means, I would like to add my two cents about what such reform should be about.  Although I previously posted a similar analysis of what the next President should do on the Marquette Law School Faculty Blog about three weeks ago, I want to sharpen these past comments and add some new ideas.

President-elect Obama should first focus on the following four broad areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, employee benefit rights, and public employee rights.

Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living. Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers.  Workers should have the freedom to choose whether to join a union without harassment or intimidation.

President-elect Obama should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers.  Obama should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. He should also sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively.  Finally, President-elect Obama should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns and overruling Dana Corp. and putting back in place the traditional voluntary recognition bar.

Workplace Anti-Discrimination and Civil Rights: President-elect Obama should work for legislation requiring employers to provide at least seven days of paid sick leave to employees and expanding the Family and Medical Leave Act (FMLA) to cover more workers (to employers with 20 or more employees). He should also protect the wages of working women by signing into law a legislative nullification of the Ledbetter decision, which will promote paycheck equity and help close the pay gap that leaves working women earning only 77 cents for every dollar earned by men.

President-elect Obama should also sign legislation to extend § 1983 civil rights claims to actions against federal officials so that federal employees can vindicate their constitutional rights to speech and privacy. Finally, he should expand Title VII and fully include all LGBT individuals (yes, such legislation must include transgendered individuals) under its protections.

Employee Benefits Rights: With more than 47 million Americans-–including 9 million children–without health insurance, President-elect Obama needs to sign a universal health care plan into law before the end of his first term.  This plan structure should include guaranteed eligibility, comprehensive benefits, and affordable premiums and co-payments, with subsidies for families that cannot afford the premiums.  Additionally, ERISA should be amended to provide for less preemption of state health care finance laws so that states can experiment in providing all of their citizens adequate health care.  Obama should also work to amend ERISA to provide monetary, make-whole remedies to employees who suffer from mismanagement of their employee benefits and work for the legislative nullification of the Russell/Mertens line of Section 502(a)(3) equity cases.  In this regard, I have proposed the ERISA Civil Rights Act of 2009, which will act much in the way the Civil Rights Act of 1991 amended Title VII.  Among the changes, the right to compensatory and punitive damages in appropriate cases with caps, the right to a jury trial when such damage is sought, and right to make-whole, equitable relief under current Section 502(a)(3).

Public Employee Rights: First and foremost, President-elect Obama should select Justices who will overule the Garcetti case and return to Pickering and the mandate that employer efficiency interests and employee constitutional rights to speech, expression, association, and privacy be balanced under the First and Fourteenth Amendments.  As to federal employees, Congress should amend the Civil Service Reform Act of 1978 and provide that federal employees are free to bring their First Amendment claims directly to federal court under a re-structured Section 1983, without having to go through the current inadequate, administrative remedies now available.  (This would entail a newly-constituted Supreme Court overruling the Bivens case of Bush v. Lucas).  Such legislation would also provide whistleblowers under Sarbanes-Oxley and in other areas the protection they really need to go out on the limb and report danagerous and fraudulent conditions in the workplace.

Believe it or not, the above suggestions would merely start the process of affording American employees the same basic workplace rights as their international counterparts. Note that I have not even broached what must be an essential component of any comprehensive labor and employment law reform in this country – the institution of just cause workplace protection as the default rule for American employees.

All of this will help return the United States to its international stature and allow it again to not only be a beacon of democracy and freedom, but also the envy of the world insofar as how it treats its working men and women.

Cross-posted from the Workplace Prof Blog.

About the Author: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

Employee Free Choice Act: Good for Everyone

Wednesday, November 12th, 2008

With the election of a new president, there naturally is a lot of talk about what legislation we might expect from the Obama administration and substantial Democratic majority in Congress.  High on everyone’s list is the Employee Free Choice Act — a bill that would make it easier for workers to form and join unions.  But perhaps you are not convinced that unions are the solution to making things better for workers, either in your workplace or any workplace.  Guess what:  you should support the Employee Free Choice Act anyway, and here’s why:

The specter of EFCA passage has a lot of employers — and their advisors — running scared.  Right now, employers who strongly oppose having unions in their workplace can hire specialists — let’s call them “unionbusters,” since that’s what they are — to use all legal and often illegal means to discourage workers from union organizing activity.  Guest blogger Art Levine, in an article published last year called Unionbusting Confidential, talked about the strategies he learned about while attending one of the many seminars that law firms sponsor for employers who want to remain union-free:

What if we felt like saying a lot of anti-union stuff to our workers? [The presenter Michael] Lotito introduced a segment called “You Can Say It.” Could we tell our workers, for instance, that a union had held strike at a nearby facility only to find that all the strikers had been replaced—and that the same could happen to the employees here? Sure, said Lotito. “It’s lawful.” He added, “What happens if this statement is a lie? They didn’t have another strike, there were no replacements? It’s still lawful: The labor board doesn’t really care if people are lying.”

(See Unionbusting Confidential.) (Note: Obama’s appointments to the labor board (NLRB) might care a little more about employers’ lies than those appointed by George W. Bush, but I digress.)

However, some of the tactics unionbusters use to discourage union organizing simply aren’t going to fly under EFCA.  Refusing to bargain is one of the tactics described by Levine, where employers say “I’m not inclined to agree to that proposal at this time” when they do not intend to agree to any proposal at any time.  This strategy will be countered by a provision that allows either side to request mediation after 90 days with the sides at an impasse.  (See Why Mediation and Arbitration Rules are Needed.)

One of the most egregious strategies, firing workers for union organizing, will also be penalized more heavily.  Levine writes that employers are being advised,

[Firing workers] was possible to do, said [Michael Stief of Jackson Lewis], as long as you were careful to do so for other reasons. “Union sympathizers aren’t entitled to any more protection than other workers,” he explained. But the firing could not be linked to their union activity.

One survey estimates that employees are fired in up to 25% of organizing efforts.  (See Why Stronger Penalties are Needed.)  EFCA increases the damages due to fired workers to three times their back pay, and allows employees to go to court to enjoin their employers from taking punitive actions.

But what really makes EFCA a win-win for everyone?  It’s that with the real threat of unionization, employers are going to be forced to make their workplaces better — to convince their employees that they don’t need unions. As one management lawyer recently pointed out, apparently with no sense of irony,

Making nonunion workplaces better for employees could be the real unintended consequence of the Employee Free Choice Act.

(See How Employers Can Mitigate ‘Card Check.’) (Hat tip to Matt Stoller of Open Left.)

This lawyer is encouraging employers to develop programs now “that will be better than
anything a union could provide, including steps to increase employee involvement and to allow peer resolution of disputes.”  Steps to increase employee involvement?  Allowing peer resolution of disputes?  All at a level better than unions? Those things all sound pretty good to me, and just maybe, they weren’t merely an “unintended consequence.”

According to Levine, unionbusters are already advising their employers to “institute an open-door policy with employees, encouraging them to air any grievances or concerns fully.”  Because it’s the right thing to do?  Not really — it’s so they can “sniff out whether there was unionization afoot.”  But what if they had to do it for real?

Wouldn’t it be wonderful if employers and unions were finally engaged in a race to the top, instead of to the bottom?  If the realities of competition made both the employer and the union be at the top of their games when making working conditions more hospitable? If workers finally had the upper hand when it comes to a more democratic and fair workplace?

Let’s put the unionbusters to work actually trying to make the workplace better.  If they really believe that unions are bad for business, then they’re going to have to convince their employees that they’re genuinely willing to go the extra mile to make things better for their workers — farther than a union is likely to go.  If they can’t make that case, then employees will finally have a real shot at forming a union and empowering themselves that way.

Either way, with EFCA’s passage, we have an unprecedented opportunity to get rid of some of the imbalances that currently exist.  Because in this economic climate, with employers already laying off employees left and right, workers are otherwise going to be even more powerless, and the unionbusters even more empowered to ensure that employers don’t feel the sting like their workers do.

One Million Signatures for the Employee Free Choice Act:  add your signature today!

How Small Business Could be Reshaped After Today's Election

Tuesday, November 4th, 2008

Disclaimer: This post is not meant to be an endorsement of any party or candidate but, rather, an exploration of issues affecting small business as shaped by what will *most likely* happen at the polls today.

Today’s election will be historic, no matter the outcome.  If you’re anything near the political junkie that I am, you’ve been watching for the last few days the result projections of some of the major pundits from the basic and cable news networks, as well as from some of the bookies.

If there is a commonality here, it is that Barack Obama looks poised to win fairly big or really big; and that the Democrats will make gains in both the House and Senate – although the Senate “magic 60″ number is still a far cry as of this writing.

Yet, if we assume the above, as David Gergen has noted on CNN, even without the Dems getting a filibuster-proof majority in the Senate, they would still have a greatly enhanced ability to push through legislation that supports their agenda, with a president ready (on most issues) to sign it into law.

How would this scenario affect small businesses?  A look at four issues that are central to their survival and success – two of which have been covered at length by candidates of the two major parties and the media, and two of which have been largely ignored – offer a clue.

Taxes

  • Obama’s plan, as detailed on his website, stresses cuts in capital gains taxes and additional tax cuts for corporations that create jobs in the U.S.
  • The Democratic Party website also talks about efforts of the majority Democratic Congress (elected in 2006) to “slash regulations on small companies.”
  • Point of contention: The now-familiar “Joe the Plumber” caveat: Entrepreneurs who start businesses that generate more than $250,000 in annual revenues would see their taxes go up – albeit to 1990s levels.

Healthcare

  • Obama: Establishment of a new Small Business Health Tax Credit to help small firms provide affordable health insurance to their employees.  He has also talked about creating an insurance pool that individuals and small firms can pay into and receive the same benefits that members of Congress receive.
  • Democratic Party: Emphasis on cutting bureaucratic waste – chiefly by standardizing electronic medical records – that would, along with incentives to increase competition among health plans, reduce company-paid premiums over time.
  • Point of contention: Nationalizing healthcare, which would mandate the coverage of children, would keep costs high.

Changes in Labor Laws – Specifically Enactment of the Employee Free Choice Act (EFCA)

  • Obama: A Proponent of the EFCA; wants to make it easier for employees to form unions.
  • Democratic Party: Behind the EFCA. They also list a goal of raising the minimum wage.
  • Point of contention: The EFCA and federal increase in the minimum wage are both hotly contested issues, with adoption of both falling pretty squarely in the “workers, yay; business leaders, nay” columns.  Since the federal minimum wage was just raised in July, the EFCA bill, if it were highly modified, might stand a better chance of gaining the support of small business leaders in the shorter term.

Immigration Reform

  • Obama: Reduce the bureaucracy that slows the process for illegal immigrants to earn legal status, which he argues will “meet the demand for jobs that employers cannot fill.”  Crack down on employers that hire undocumented immigrants.
  • Democratic Party: Supports “economic development in migrant-sending nations, to reduce incentives to come to the United States illegally.” Long-term, this would ensure that tax dollars from businesses as well as individuals aren’t stretched as thin.  The party also echoes Obama’s above concerns.
  • Point of contention: This is a sticking point for leaders of some smaller firms that are actively hiring undocumented workers.  Most other business leaders seem concerned that their taxes are not raised for inadequate or unnecessary measures to secure our borders.

So, would a fly on the wall of a small organization in February 2009 see a noticably different landscape than in the same firm today?  Probably not.  Still, it doesn’t hurt to project how the probable shift in the balance of power in Washington after today will play out for these enterprises.  Who knows, it may even shape smaller-scale efforts – the things we love to talk about and help our clients refine – like employee engagement best practices and workplace team building.

What say you?

(Cross-posted from Winning Workplaces Blog)

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