Outten & Golden: Empowering Employees in the Workplace

Archive for February, 2009

Memo to CEOs: Your Employees Just Aren't That Into You

Thursday, February 26th, 2009

A few years ago Workplace911 did an online poll. It asked, “Which movie title best describes your relationship with your boss?” Sure, the question was light-hearted, but the results weren’t:

Little Shop of Horrors: 20%

It’s a Wonderful Life: 24%

But the #1 movie title describing the relationship between employees and bosses?

House of Games: 56%

To all the bosses out there, I have some bad news. In the “good old days,” your people didn’t like you that much. Given today’s economic meltdown that occurred on your watch, I’m sorry to say, it’s really hit the fan.

Welcome to “Velcro” management. Where every stupid statement uttered by the former Merrill Lynch CEO John Thain, sticks to YOU. Where every corporate jet sticks to YOU. Where every million dollar bonus payment sticks to YOU. Think about it, who was the enemy in the last movie you saw? Odds are it was a corporate villain. Is it fair? No. But populist anger against you is growing exponentially.

I discovered how angry people are on a recent flight to New York City to appear on OTM. I asked my seatmate if he minded if I practiced some of my observations on him. After doing a riff on the $35,000 executive commode, I paused and asked if I’d gone too far. He said, “NO. That is exactly what I’m feeling and so are most of my friends. Please speak up for all of those of us who don’t have a voice.”

Wretched CEO excess isn’t reserved for just “a few bad apples” anymore; it’s the norm in the eyes of most of the people that I hear from today. I’ve got six words to help any CEO who is ready to lead and wants to really escape being tarnished by other CEOs: “One dollar a year in salary.” Only truly bold action will separate you from the tawdry norm that has become the CEO standard operating procedure.

And you ain’t seen nothing yet. According to a recent Associated Press poll, almost half of us now fear losing our jobs. And almost two-thirds of us are now concerned about being able to pay our bills. And more than seven in 10 of us know someone who has been laid off.

Mr. and Mrs. CEO, it’s time to smell the coffee. This economic mess didn’t happen despite your best efforts. It happened because of them. Same-old-same-old layoffs and lecturing everyone about tightening their belts won’t work anymore. You either need to lead, or you need to leave.

As more of us lose our jobs, I think we’ll start to see this anger spilling out into the suites, and the streets, if for no other reason than people suddenly have time on their hands to make their feelings known and little left to lose. It’s our job to speak out. Start with your next corporate proxy statement. That’s safe and won’t threaten your job. Anonymous blog postings are next. Look for every opportunity to add your voice of displeasure about our current crop of leaders.

However, there is a white knight out there for all of us: Donald Trump. When the peacock and The Donald are done with celebrities, the Apprentice needs to take on CEOs. Imagine the huge ratings as Trump says, “You’re Fired!” to executives from the banking and auto industries. The people are ready for someone to say those two magic words that you’re famous for to corporate leaders across the land. You go guy!

Bob Rosner is a best-selling author, award-winning journalist and contributor to On The Money. He has been called “Dilbert with a solution.” Check out the free resources available at workplace911.com. You can contact Bob via bob@workplace911.com.

Don’t Be Fooled: “Defense of the American Worker” Award Is Not a Good Thing

Thursday, February 26th, 2009

Two weeks ago, the North Carolina chapter of Americans for Prosperity, a big-business backed group, “honored” Senator Richard Burr and U.S. Representative Howard Coble each with a “Defense of the American Worker.”  That title, of course, is a distraction.  Anyone familiar with Sen. Burr’s and Rep. Coble’s record would never consider them friends of workers, especially given that they have the among the worst records in Congress on workers’ rights.

Both have spent their career in Congress putting middle-class workers on the defensive. Whether it was their votes against raising the minimum wage for the first time in a decade, or their votes against protecting overtime pay, or their most recent votes against President Obama’s plan to create or save 3.5 million jobs even in the face of the worst recession since the Great Depression, Senator Burr and Congressman Coble are no friends to North Carolina’s struggling middle-class workers.  Both rejected providing millions of children with health insurance and opposed legislation that ensured women received equal pay for equal work, while Burr voted for CAFTA despite saying he would oppose it and Coble had no interest in trying to keep struggling homeowners in their houses, voting against legislation to prevent foreclosures.

At a time when the unemployment rate is rising steadily, workers need support now more than ever.  But this faux award does nothing but undermine the hard work of so many Americans.

More to the point, it emphasizes the urgent need to pass the Employee Free Choice Act. Amid the worst economic crisis in a generation, organized labor — which built the middle-class in this country — is needed and wanted more than ever because unions are the single best tool to create an economy that works for all. More than half of U.S. workers — nearly 60 million — say they would join a union right now if they could.  Union members make 28 percent more and are 52 percent more likely to have job-provided health care and nearly three times more likely to have defined-benefit pensions than nonunion workers.   The Employee Free Choice Act is about fixing a badly broken system for forming unions that allows big business to routinely harass intimidate or even fire workers who try to organize.  In fact, 25 percent of employers faced with an organizing effort fire workers for their support of a union.

So the reality is if Senator Burr and Congressman Coble were true defenders of middle-class workers, they would support the Employee Free Choice Act and help restore North Carolina workers’ freedom to organize and their opportunity to lift up the entire community.

About the Author: Lauren Weiner is the Deputy Communications Director for Americans United for Change, a progressive advocacy group. Prior to that she was a TV producer for a regional cable network and worked in production for ABC News. She has done political research for numerous candidates on the national and state level, including the Kerry/Edwards presidential campaign. She has a masters from the Columbia University Graduate School of Journalism.

Three Concepts That Need to Be 'Laid Off'

Thursday, February 19th, 2009

It’s time to review three ideas that need to be “let go” in 2009.

1. Credit Checks of Job Applicants. According to the Society of Human Resource Management and Kroll, 43% of employers run credit checks on potential employees, up from 36% in 2004. These checks involve rent, student loans, credit cards and mortgages and can make the difference between someone getting hired or having their application tossed.

In the best of times this is a dubious measurement to use when looking to hire someone. But given the rapidly increasing foreclosure rate, ballooning credit card debt and the general demise of capitalism as we’ve know it, credit checks of job applicants are a joke. A very bad joke.

I’d make an exception for people who handle substantial amounts of money as part of doing their jobs, but for a truck driver, administrative assistant or nurse, this is unnecessary. Personally, I believe that it violates our 4th Amendment right against cruel and unusual punishment and this is coming from a guy with a good credit score.

Let’s stop pouring salt in the wounds of our fellow citizens. Credit checks are wrong in the hiring process and need to be stopped.

2. Bonus Formulas. It seems every day that pigs can fly, at least on Wall Street. One day we hear from the President about $18 billion in bonus payments at companies receiving TARP government bailout bucks. Then the next day the headline is that 700 Merrill Lynch workers

received million dollar bonus payments each.

Clearly this proves that there is a parallel universe, one where pigs party like crazy. I think we need to toss all the old bonus formulas and swap them for calculations that actually don’t reward people when the markets sink by 50%. Is that too much to ask?

I’m all for pay for performance, but Wall Street seems to focus on the wrong “p” in the first part of this sentence at the expense of the second “p.”

3. Retirement. Ouch. Retirement has been pushed back for many of us. Instead of kicking back in our early 60s, many of us will now be working until our 70’s. We’ll have no choice.

We might not have a choice about how long we work, but we do have a choice about where we work. That’s why it’s so important to really focus on what we want to do with our careers, to decide what is meaningful and important to each of us.

And this may be the silver lining of the current mess. That it could push many people into jobs that hold more meaning for them.

As a special guest this week, we’re bringing in the star of the Apprentice, and former high roller, to bid adieu to credit checks, bonus formulas and retirement.

Donald: “You’re fired!”

Rosner: “Thanks Mr. Trump.”

About the Author: Bob Rosner is a best-selling author, award-winning journalist and contributor to On The Money. He has been called “Dilbert with a solution.” Check out the free resources available at workplace911.com. You can contact Bob via bob@workplace911.com.

Teen Sexual Harassment on the Job – NOW on PBS Investigation Airs February 20

Wednesday, February 18th, 2009

NoteOn Friday, February 20 at 8:30 pm (check local listings at pbs.org), NOW on PBS collaborates with the Schuster Institute for Investigative Journalism at Brandeis University to bring you a broadcast investigation of teen sexual harassment in the workplace. Reporter Maria Hinojosa talks below about the experience of her investigation.

I always talk about the stories I’m working on with people I meet along the way: cab drivers, waitresses, hotel maids, TSA agents, family and girlfriends. Their response typically ranges from casually interested to intensely curious. But the response to my latest NOW report—about sexual harassment of teenage girls in the workplace—has been like no other.

Nearly every woman I’ve spoken to instantly replies “that happened to me” or “that happened to a friend of mine.”

While sexual harassment is something many American women experience in the workplace, it goes mostly unreported. We hear stories about protecting our kids from sexual predators on the Internet and teach our daughters and sons to be wary of strangers. There are programs in high schools that deal with bullies, and programs that deal with sexual harassment in school. Yet, there’s never been a national conversation about sexual harassment of teen girls on the job.

The five girls I spoke with were 16 at the time they were sexually harassed at work. It was their very first job. Remember your first job? A first job is all about independence, freedom, and moving away from childhood. It’s a rite of passage that helps our kids learn the value of work and money.

But for these young workers, it turned into something else, something very upsetting. These teenage girls had no idea about acceptable and unacceptable workplace behavior, much less their legal protections. How could they? Who would have told them? Employers don’t want to spend money training transient part-time workers. And workplace rules aren’t really taught in high school.

Meeting these brave young women—who chose to tell their stories on national television for the first time—was a moment I will not soon forget. Their trauma was real, and reflected as much in their faces as in their words. When these girls shed tears about what it was like to be groped and followed and threatened by their first boss, to have their shirts ripped or be forced to look at pornography, I felt more than sympathy. In fact, it brought up an emotion I didn’t expect: pride. Through their actions, these young women were patriots.

Even though these young women were thoroughly embarrassed and afraid, they found the strength and courage to take their abusers to court. These young American teens understood that one of their basic rights is to try to right a wrong through our system of laws. Starting from a position of powerlessness, these young women eventually came to own their own power and exercise it. It’s a lesson I will share with my own 13- year-old son and my ten-year-old daughter, because I never want this to happen to them.

I will watch this show together with my children, and encourage you to do the same with your children and grandchildren.

I am proud of this show, and as much so, proud of these women. With this important investigation, NOW on PBS launches the first ever beat of its kind on a network magazine show, covering women, girls and families involved in issues that affect and should concern us all. And it’s about time. We call the series “Life Now.”

About the Author: Award-winning journalist and author Maria Hinojosa is managing editor and host of Latino USA. In addition to hosting each week’s show, Hinojosa is the senior correspondent for the Emmy Award -winning PBS newsmagazine NOW. Before joining NOW, Hinojosa was the urban affairs correspondent for CNN. Prior to joining CNN, Hinojosa spent six years as a New York-based correspondent for NPR.

NOTE: A special preview excerpt of the report can be viewed here. The NOW on PBS website will broadcast the show in its entirety, for free, starting Monday, February 23 at www.nowonpbs.org. This is the first report in a new NOW on PBS beat on women and men in the twenty-first century called “Life Now.”

Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending

Tuesday, February 17th, 2009

The economic stimulus bill passed by Congress on February 12, 2009 includes robust whistleblower protections to ensure that employees of private contractors and state and local governments can disclose waste, fraud, gross mismanagement or a violation of law related to stimulus funds.  This article summarizes the key provisions of Senator McCaskill’s (D-Mo.) whistleblower protection amendment to the stimulus bill (“McCaskill Amendment”).

Covered Employers

The McCaskill Amendment applies to private contractors, state and local governments, and other non-Federal employers that receive a contract, grant or other payment appropriated or made available by the stimulus bill.

Broad Scope of Protected Conduct

Protected conduct includes a disclosure to a person with supervisory authority over the employee, a State or Federal regulatory or law enforcement agency, a member of Congress, a court or grant jury, the head of a Federal agency, or an inspector general information that the employee reasonably believes evidences:

  • Gross mismanagement of an agency contract or grant relating to stimulus funds;
  • A gross waste of stimulus funds;
  • A substantial and specific danger to public health or safety related to the implementation or use of stimulus funds;
  • An abuse of authority related to the implementation or use of stimulus funds; or
  • A violation of a law, rule, or regulation that governs an agency contract or grant related to stimulus funds.

Significantly, internal disclosures are protected, which is a substantial expansion of two current analogous whistleblower protection laws protecting contractors, both of which do not expressly cover internal disclosures.  See 10 U.S.C. § 2409; 41 U.S.C. § 265.  The McCaskill Amendment specifically protects so-called “duty speech” whistleblowing, i.e., disclosures made by employees in the ordinary course of performing their job duties. Courts will likely apply a standard of objective reasonableness from analogous whistleblower protection laws, such as Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, which evaluates the reasonableness of a belief based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.

Prohibited Acts of Retaliation

The McCaskill Amendment prohibits a broad range of retaliatory employment actions, including termination, demotion, or any other discriminatory act, which includes any act that would dissuade a reasonable person from engaging in protected conduct.   See Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006).

Employee-Favorable Burden of Proof

To prevail in a whistleblower action under the McCaskill Amendment, an employee need not show that the protected conduct was a significant or motivating factor in the reprisal, but instead must merely prove that the protected conduct was a “contributing factor” to the reprisal.  The Amendment specifically clarifies that an employee can meet the “contributing factor” standard through temporal proximity or by demonstrating that the decision-maker knew of the protected disclosure.  An employer can avoid liability by demonstrating by “clear and convincing evidence,” a high evidentiary burden, that it would have taken the same action in the absence of the employee engaging in protected conduct.

Remedies

A prevailing employee is entitled to “make whole” relief, which includes: (1) reinstatement; (2) back pay; (3) compensatory damages; and (4) attorneys’ fees and litigation costs.  Where an agency files an action in federal court to enforce an order of relief for a prevailing employee, the court may also award exemplary damages.

Administrative Exhaustion Requirement and Right to a Jury Trial

Actions brought under the whistleblower provisions of the McCaskill amendment must be filed with the appropriate inspector general.  Unless the inspector general determines that the action is frivolous, does not relate to covered funds, or has been resolved in another Federal or State administrative proceeding, the inspector general must conduct an investigation and make a determination on the merits of the whistleblower retaliation claim no later than 180 days after receipt of the complaint. Within 30 days of receiving an inspector general’s investigative findings, the head of the agency shall determine whether there has been a violation, in which event the agency head can award a complainant reinstatement, back pay, compensatory damages, and attorney fees.  If an agency head has denied relief in whole or in part or has failed to issue a decision within 210 days of the filing of a complaint, the complainant can bring a de novo action in federal court, which shall be tried by a jury at the request of either party.  The McCaskill Amendment expressly clarifies that predispute arbitration agreements do not apply to claims brought under the Amendment.

Alternative Remedies

In addition to the relief available under the McCaskill Amendment, employees of government contractors have other options to remedy whistleblower retaliation.  The retaliation provision of the False Claims Act, 31 U.S.C. § 3730 (h), prohibits retaliation against an employee who has taken actions “in furtherance of” an FCA enforcement action, including initiating an FCA action, investigating a potential FCA action and testifying in an FCA action.  At least twenty-four states have adopted laws similar to the FCA, nearly all of which include an analogous retaliation provision.  Unlike the McCaskill Amendment, the retaliation provision of the FCA does not require administrative exhaustion.  Employees of contractors and of state governments may also have claims under state whistleblower protection statutes, but some of those statutes do not protect internal whistleblowing.  In addition, employees of private contractors may have a claim of common law wrongful discharge in violation of public policy, a tort remedy that provides access to a jury trial and punitive damages.  When evaluating a whistleblower retaliation claim arising from an employee’s disclosure about fraud on the government, it is critical to consider whether the employee also has a qui tam action and to preserve the employee’s ability to pursue a qui tam action, which may entail avoiding public disclosure of the fraud.

In sum, the McCaskill Amendment provides a critical safeguard against fraudulent spending of stimulus funds.

About the AuthorsJason Zuckerman, a Principal at The Employment Law Group law firm (www.employmentlawgroup.com) has litigated more than fifty whistleblower retaliation, qui tam, and wrongful discharge cases. He also litigates civil rights, discrimination, non-compete, and unpaid overtime actions in federal and state courts. Mr. Zuckerman serves as Co-Chair of the National Employment Lawyers Association’s Whistleblower Committee and Co-Chair of the Whistleblower Committee of the District of Columbia Bar’s Labor and Employment Section.

R. Scott Oswald, a Principal at The Employment Law Group law firm (www.employmentlawgroup.com) litigates whistleblower complaints nationally.  Notably, Mr. Oswald was the lead trial counsel in the ground-breaking Sarbanes-Oxley (SOX) whistleblower case of Kalkunte v. DVI, which remains one of the few SOX whistleblower cases in which the SOX whistleblower prevailed at the trial level.  Mr. Oswald is the President-Elect of the Metropolitan Washington Employment Lawyers Association.

Cross-posted from The Employment Law Group’s Whistleblower Law Blog.

Just Say “No” to Layoffs—CEO Patriot Pledge

Friday, February 13th, 2009

These are M.A.D. economic times. That’s M.A.D. as in Mutually Assured Destruction, the old Cold War strategy where no one would be left standing after that first nuke was launched. Economic experts, who agree on little else, agree on this: if our current vicious cycle of “layoffs-driving-down-purchasing-which-increases-layoffs” continues, no one will be left standing.

There is an exit strategy here that no one is talking about; billions of dollars that could be used to address the layoff cycle immediately. This is not a plea for legislation or government funds. In fact, not a penny would come from taxpayers. It’s simple, voluntary, and dare I say, patriotic. The “Chief Executive Officer Patriot Pledge,” listed below, is a 95-word call to action for all corporate leaders, not just those in financial services, to reign in their own wretched excesses and voluntarily re-invest part of their lofty salaries and perks to keep employees on the payroll.

Entitlement and greed are the only words I can find to describe $18 billion in bonuses given during the last two months of 2008. At the same time that one million people were being laid off, including at these very firms that were giving bonuses to a select few. Who paid the bill that allowed these corporations to party like it was 1999? U.S. taxpayers, courtesy of former Treasury Secretary Henry Paulson’s inability to ask for any accountability from the corporations receiving $350 billion in TARP funds. Who knew the “free market” could be so expensive? Heck of a job Paulie!

I’m sure some will scream “Socialism,” but socialism isn’t voluntary. No, the CEO Patriot Pledge is pure capitalism, rewarding people when they do well and refusing to grossly enrich failure any longer. I’m not disparaging wealth or begrudging anybody for achieving success, just asking for bonuses that are tied to real achievement.

How do we define excessive executive compensation? And how much money are we really talking about?

The Corporate Library examined the paychecks of just the CEOs of the Russell 3,000 (the 3,000 largest U.S. companies based on market capitalization) and calculated these executives were overpaid by $14.7 billion annually. This does not include the huge paychecks of COOs, CFOs, etc. It also doesn’t include tens of thousands of executives at smaller firms. My estimate is that up to $40 billion could be found to reduce layoffs just from excess executive pay.

Of course, some executives consider themselves worthy of any compensation, no matter how disproportionate or unwarranted. Just ask John Thain, former CEO of Merrill Lynch, who in a recent interview told CNBC that it was important, even in troubled times, to give top talent over-the-top paychecks.

Well if these top executives, at Merrill Lynch and thousands of other firms, are so talented, then how did we end up with 626,000 new unemployment claims filed just last week…with half of our 401(k)’s gone…and with, my personal favorite, a $35,000 executive commode funded from the public trough. Do these corporate “leaders” have no sense of decency?

Fortunately, there are some executives who get it. For example, Thomas A. James, CEO of Raymond James. Sound familiar? They are the sponsors of the stadium of the most recent Super Bowl. Raymond James had almost $3 billion in revenue last year. Yet, Tom James’ guaranteed base salary was only $325,000, less than 20 times the amount of the lowest paid worker at his company. As compared with the average CEO salary, which is 262 times that of the lowest paid worker. [Please note, for every “average” salaried CEO who cuts back his or her base salary to a ratio of even 40 times the salary of the lowest paid worker, almost 200 workers would keep their jobs.]

While the S&P sank 22%, Raymond James had a positive return for its investors. With the bonus he earned, Tom James’ total compensation was slightly over $3 million. But the key word here is “earned.” It is no accident that Raymond James has a conservative compensation philosophy and the company also did well despite the carnage in the rest of the market.

Compare Tom James to Robert Iger, CEO of Disney. According to Graef Crystal, compensation guru, Iger received $51 million during a year when his company suffered losses and layoffs. Or to put it in Disney language, Iger received a king’s ransom for a pauper’s performance.

I believe this is how it should be, a CEO with a relatively low guaranteed salary and a bigger upside if the company performs for both its investors and employees. More independence is also needed at the board of directors level, so CEO pay decisions aren’t “I’ll scratch your back, you scratch mine.” Finally, we need to clone Tom James to help create leaders that don’t view pay for performance as an escalator that only goes up for their benefit.

What is the CEO Patriot Pledge? It’s a plea to encourage American businesses to do what they have always done: lead the way with vision and creativity. Only this time the goal is not to just create a profit, but to keep people employed so there will be a market for our products and services.

In short, our turbulent times require a reversal of a famous quote: today’s “what is good for the country is good for G.M.”

CEO PATRIOT PLEDGE: As an executive my primary motivation is to act for the good of my company, not just my own financial gain. No one at our company will earn a guaranteed base salary more than 40 times of our lowest paid worker and we will offer the same health care and 401(K) matches to employees as we do for executives. We support pay for performance, so when our company’s performance serves investors and employees, we’ll share in the gains. When our company’s performance does not adequately serve our investors and employees, we’ll share in the sacrifice.

You can call this initiative naïve, but remember that a similar pledge, the Sullivan Principles, played a key role in ending apartheid in South Africa.

Greed isn’t good, it’s a symptom of poor impulse control and leads us down the path to more Lehman-Brothers-style-implosions. David beat Goliath and we can put an end to this fat-cat behavior. My single voice can be easily dismissed, but all of our voices can’t. Put the pledge on the bulletin boards of your company, send it to the companies that you own stock in and ask your friends and colleagues to do the same. Also pass on the link to the CEO Patriot Pledge video on YouTube. We need to all share in the sacrifice, but isn’t it time that our leaders actually led during tough times?

There is a saying, “To save one life is as if you have saved the world.” Executives, you hold the world in your hands. We can keep people employed and get our economy working again, but only if we work together to stop the madness.

About the Author: Bob Rosner is a best-selling author, award-winning journalist, and member of the Workplace Fairness Board of Directors. Sign a petition supporting the CEO Patriot Pledge or share your success stories at workplace911.com.

Solis Appointment Moves Out of Senate Committee

Thursday, February 12th, 2009

Finally, good news, as reported in The Nation:

The Senate Health, Education, Labor and Pensions Committee, where the [nomination of California Congresswoman Hilda] Solis had been stalled, voted overwhelmingly on Wednesday evening to recommend confirmation of the congresswoman.

Solis, a labor ally who whose confirmation process was delayed by conservative Republicans who objected to her union ties and progressive politics, got the committee O.K. on a voice vote. Only two Republican members of the committee were heard to object.

A full Senate vote is likely this week, and Republican opposition appears to be crumbling.

As noted in the article, opponents to her confirmation first latched on to a tax issue related to her husband’s small business, aka, “A partisan ploy designed to embarrass Obama following the Daschle debacle, rather than a serious complaint about Solis.” Then, “[a]n objection to the involvement of the pro-labor congresswoman with pro-labor groups was acknowledged even by some Republicans as laughable.”

Once again, U.S. Senator Ted Kennedy, flown in to vote on the stimulus bill, was able to break the logjam:

Senate Health, Education, Labor and Pensions Committee chair Kennedy, a Solis ally and champion, saw an opening and seized it. After consulting Wednesday with key Republicans on the committee, Kennedy scheduled a hasty committee session, called for a vote and got the Solis nomination out of committee and headed toward confirmation.

And that, my friends, is the real value, for any aligned contingent, in having incumbency, experience and seniority on your side. It’s also the textbook definition of politics.

Other reports: Alternet, Boston.com and, from the AFL-CIO blog, word that the vote might even come tomorrow.

Workforce Management offers one additional hold up that could occur, however:

Once Solis is put before the whole Senate, any member could prevent a vote by placing a “hold” on it. Her nomination would almost certainly prevail in a roll-call vote. Democrats hold a 58-41 majority, with a disputed Minnesota race still pending.

A White House spokesman said Wednesday that he anticipates Senate approval.

“I think that process will hopefully conclude quickly,” said Robert Gibbs, White House press secretary. “The president has confidence in her ability to continue the department’s mission.”

Now, to be fair, one of the concerns about Solis is her support of the Employee Free Choice Act. You can read more about it here at Congresspedia. It has not yet been introduced in the 111th Congress. It deals with simplifying the way in which employees can form and choose to be members of unions. However, employers allege a fear that people will be pressured into joining as well as a more realistic fear that the ranks of unions will swell. Here’s an interesting article intended for management about how to deal, preventatively, with the likelihood of EFCA becoming law.

It’s late so I’ll pass on describing my experiences with unions but frankly, like most everything else, thre are points to be made for both sides and the bottom line is, as with the Lilly Ledbetter Act, if businesses treated their workers better, as a general rule, none of this stuff would be necessary, but it’s just not that way.

About the Author: Jill Miller Zimon is an award-winning freelance writer, blogger and political commentator. Her election coverage appeared on Newsweek’s The Ruckus and she has provided on-air political analysis for Cleveland public radio (WCPN) and television (WVIZ), CNN, BBC and other broadcast outlets. You can listen to or watch selections of her appearances here. Zimon started her blog, Writes Like She Talks, in 2005. In Fall 2007, she joined the Plain Dealer/cleveland.com online venture, Wide Open. It was the first paid collaboration between a traditional newspaper and independent political bloggers in the country. This past August, she was named to WE Magazine’s list of 101 Women Bloggers to Watch This Fall. Zimon’s other blogging work includes being a Contributing Editor for BlogHer.com’s Election 2008 coverage and co-editing the Carnival of Ohio Blogs since 2007 on a voluntary basis. She was a board member of the Society of Professional Journalists Cleveland Pro Chapter in 2007 and presented at SPJ’s national conference in 2005.

Cross-posted from Writes Like She Talks.

The CEO Patriot Pledge: Just Say 'No' to More Layoffs

Wednesday, February 11th, 2009

CEO PATRIOT PLEDGE: As an executive my primary motivation is to act for the good of my company, not just my own financial gain. No one at our company will earn a guaranteed base salary more than 40 times of our lowest paid worker and we will offer the same health care and 401(K) matches to employees as we do for executives. We support pay for performance, so when our company’s performance serves investors and employees, we’ll share in the gains. When our company’s performance does not adequately serve our investors and employees, we’ll share in the sacrifice.

These are M.A.D. economic times. That’s M.A.D. as in Mutually Assured Destruction, the old Cold War strategy where no one would be left standing after that first nuke was launched. Economic experts, who agree on little else, agree on this: if our current vicious cycle of “layoffs-driving-down-purchasing-which-increases-layoffs” continues, no one will be left standing.

There is an exit strategy here that no one is talking about; billions of dollars that could be used to address the layoff cycle immediately. This is not a plea for legislation or government funds. In fact, not a penny would come from taxpayers. It’s simple, voluntary, and dare I say, patriotic. The “Chief Executive Officer Patriot Pledge,” see above, is a 95-word call to action for all corporate leaders, not just those in financial services, to rein in their own wretched excesses and voluntarily re-invest part of their lofty salaries and perks to keep employees on the payroll.

Entitlement and greed are the only words I can find to describe $18 billion in bonuses given during the last two months of 2008. At the same time that one million people were being laid off, including at these very firms that were giving bonuses to a select few. Who paid the bill that allowed these corporations to party like it was 1999? U.S. taxpayers, courtesy of former Treasury Secretary Paulson’s inability to ask for any accountability from the corporations receiving $350 billion in TARP funds. Who knew the “free market” could be so expensive? Heckuva job, Paulie!

I’m sure some will scream “socialism,” but socialism isn’t voluntary. No, the CEO Patriot Pledge is pure capitalism, rewarding people when they do well and refusing to grossly enrich failure any longer. I’m not disparaging wealth or begrudging anybody for achieving success, just asking for bonuses that are tied to real achievement.

The Corporate Library examined the paychecks of just the CEOs of the Russell 3000 (the 3,000 largest U.S. companies based on market capitalization) and calculated these executives were overpaid by $14.7 billion annually. This does not include the huge paychecks of COOs, CFOs, etc. It also doesn’t include tens of thousands of executives at smaller firms. My estimate is that up to $40 billion could be found to reduce layoffs just from excess executive pay.

Of course, some executives consider themselves worthy of any compensation, no matter how disproportionate or unwarranted. Just ask John Thain, former CEO of Merrill Lynch, who in a recent interview told CNBC that it was important, even in troubled times, to give top talent over-the-top paychecks.

Well, if these top executives at Merrill Lynch and thousands of other firms are so talented, then how did we end up with 626,000 new unemployment claims filed just last week…with half of our 401(K)’s gone…and with, my personal favorite, a $35,000 executive commode funded from the public trough. Do these corporate “leaders” have no sense of decency?

Fortunately, there are some executives who get it. For example, Thomas A. James, CEO of Raymond James. Sound familiar? They are the sponsors of the stadium of the most recent Super Bowl. Raymond James had almost $3 billion in revenue last year. Yet, Tom James’ guaranteed base salary was only $325,000, less than 20 times the amount of the lowest paid worker at his company. As compared with the average CEO salary, which is 262 times that of the lowest paid worker. [Please note: for every “average” salaried CEO who cuts back his or her base salary to a ratio of even 40 times the salary of the lowest paid worker, almost 200 workers would keep their jobs.]

While the S&P sank 22%, Raymond James had a positive return for its investors. With the bonus he earned, Tom James’ total compensation was slightly over $3 million. But the key word here is “earned.” It is no accident that Raymond James has a conservative compensation philosophy and the company also did well despite the carnage in the rest of the market.

Compare Tom James to Robert Iger, CEO of Disney. According to Graef Crystal, compensation guru, Iger received $51 million during a year when his company suffered losses and layoffs. Or to put it in Disney language, Iger received a king’s ransom for a pauper’s performance.

What is the CEO Patriot Pledge? It’s a plea to encourage American businesses to do what they have always done: lead the way with vision and creativity. Only this time the goal is not to just create a profit, but to keep people employed so there will be a market for our products and services.

In short, our turbulent times require a reversal of a famous quote: today “what is good for the country is good for G.M.”

You can call this initiative naïve, but remember that a similar pledge, the Sullivan Principles, played a key role in ending apartheid in South Africa.

Greed isn’t good, it’s a symptom of poor impulse control and leads us down the path to more Lehman Brothers-style implosions. David beat Goliath and we can put an end to this fat-cat behavior. My single voice can be easily dismissed, but all of our voices can’t. Put the pledge on the bulletin boards of your company, send it to the companies that you own stock in and ask your friends and colleagues to do the same. Also pass on link to the CEO Patriot Pledge video on YouTube. We need to all share in the sacrifice, but isn’t it time that our leaders actually led during tough times?

There is a saying, “To save one life is as if you have saved the world.” Executives, you hold the world in your hands. We can keep people employed and get our economy working again, but only if we work together to stop the madness.

About the Author: Bob Rosner is a best-selling author, award-winning journalist and contributor to On The Money. He has been called “Dilbert with a solution.” Check out the free resources available at workplace911.com. You can contact Bob via bob@workplace911.com.

Rising Hope for Women

Friday, February 6th, 2009

Talk about the audacity of hope – who could have imagined that barely a week into office, President Obama would sign the Lilly Ledbetter Fair Pay Act and that the Supreme Court would unanimously rule that employees who report discriminatory treatment during an internal investigation are protected from retaliation by Title VII of the Civil Rights Act in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee?

But will the winds of change continue to blow when the Supreme Court considers AT&T v. Hulteen, the last case heard in 2008?

AT&T v. Hulteen raises the question: Does the Pregnancy Discrimination Act of 1978 prohibit AT&T from giving smaller pensions to women who took pregnancy leave before its passage than it gives to other retirees with the same length of service? The Pregnancy Discrimination Act amended Title VII to require that “women affected by pregnancy … shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons … similar in their ability or inability to work.”

Before 1978, it was standard practice in the telecommunications industry to treat pregnant employees differently from employees who were temporarily disabled for other reasons. Company policy forced pregnant women like Noreen Hulteen to go on leave while they were still physically able to work, and new mothers were not guaranteed immediate return to work after recovery from childbirth. Their leaves were classified as “personal” rather than “disability,” depriving them of the full seniority accrual enjoyed by employees disabled for reasons other than pregnancy. They were not permitted to shift to disability leave even if an unrelated disability extended their absence from work.

Non-pregnant employees who anticipated or suffered a period of disability were not subject to forced leave or delayed return. They received full seniority credit for the entire leave period. Upon return to work, non-pregnant employees retained the “net credited service” date that they had at the outset. By contrast, employees returning from pregnancy leave had their dates of hire “adjusted,” reducing their seniority by all but 30 days of the leave’s duration. Hulteen lost 210 days of service credit under this regime.

After the act went into effect, AT&T eliminated its discriminatory leave policies, but not the discriminatory service credit adjustments created by those policies. AT&T continued to use pregnancy adjusted net credited service dates to calculate retirement benefits after the Pregnancy Discrimination Act went into effect, and has been insisting on its legal right to do so, with mixed success, for 30 years.

Enter the Supreme Court. Twice, the 9th Circuit Court of Appeals held that AT&T’s conduct violates Title VII. The first time the Supreme Court denied certiorari. The second time, AT&T persuaded the court to take the case. At oral argument, its gamble appeared to have paid off.

In most press reports following the oral argument, the smart money was on victory for AT&T, and it was not hard to see why. Justice Anthony Kennedy is often the crucial swing vote on issues that divide liberals and conservatives. He seemed deeply troubled by the idea that a ruling in favor of AT&T’s retiring mothers could possibly, in the current economic climate, reduce pension funds available for everyone.

Still, reading tea leaves is a perilous game, and as inaugural afterglow fades, the Ledbetter Act and the Crawford opinion give rise to cautious optimism that the court’s decision in Hulteen will align more with Congress’ purpose in enacting the Civil Rights Act of 1964, than with its panic in enacting the Troubled Asset Relief Program. Here’s why.

First, the Lilly Ledbetter Fair Pay Act resolved a key issue in the case – timeliness – in Hulteen’s favor. In the words of the act: “[A]n unlawful employment practice occurs, with respect to discrimination in compensation … when an individual is affected by application of a discriminatory compensation decision or other practice.” Hulteen’s claim is timely under the Ledbetter Act because she filed a charge with the Equal Employment Opportunity Commission at the time AT&T awarded her a smaller pension than retirees with the same length of service.

Second, last week’s Crawford decision inspires hope that the justices will view the claim that Title VII permits AT&T to pay reduced pensions to women who took pre-Pregnancy Discrimination Act pregnancy leave with a skeptical eye. In Crawford, the employer argued that Title VII protects an employee who complains about discrimination on her own initiative, but not one who reports the same discrimination in the same words when her boss asks a question. Justice David Souter’s opinion rejected the employer’s position as not only wrong, but “freakish.” This is not language you hear every day from the Supreme Court.

Well, what could be more freakish than arguing that Title VII permits you to continue to calculate pensions using a discriminatory system that would violate the Pregnancy Discrimination Act if adopted today, just because it was in use when the act went into effect?

Twenty years ago, the court knew what to do with a similar argument. Speaking for a unanimous Supreme Court in Bazemore v. Friday, 478 U.S. 385 (1986), Justice William Brennan wrote: “A pattern or practice that would have constituted a violation of title VII, but for the fact that the statute had not yet become effective, became a violation upon title VII’s effective date, and, to the extent an employer continued to engage in that act or practice, it is liable under that statute.”

To be sure, Bazemore concerns paychecks, whereas Hulteen concerns pension benefits, but the fundamental equity principle is identical: Title VII was enacted to eliminate discrimination against everyone on the basis of protected status, not just those fortunate enough to enter the workforce after its effective date. Treating newly hired black employees (or newly pregnant women) the same as similarly situated others will not satisfy that statutory goal if the victims of pre-act discrimination remain in its thrall.

AT&T argues that imposing liability will upset its “settled expectation” that women who took pre-Pregnancy Discrimination Act pregnancy leaves would not receive equal benefits upon retirement. But Bazemore was decided in 1986. AT&T has already received a 30-year economic windfall by not changing its pension benefit calculation system. Now it’s time for justice.

In the words of Obama when signing the Lilly Ledbetter Fair Pay Act: “[M]aking our economy work means making sure that it works for everybody; that there are no second-class citizens in our workplaces….Ultimately, equal pay isn’t just an economic issue … it’s a question of who we are – and whether we’re truly living up to our fundamental ideals.”

And if AT&T needs a bailout, well, the Treasury Department is right down the street.

About the Author: Charlotte Fishman is a San Francisco employment attorney, a regular columnist on employment discrimination and women’s issues, and author of the National Employment Lawyers Association’s amicus brief supporting Noreen Hulteen et al. in the U.S. Supreme Court.

This article originally appeared in the San Francisco and Los Angeles Daily Journal on February 5, 2009. Reprinted with permission of the author.

Staying Afloat Despite the Horrible Jobs Report

Thursday, February 5th, 2009

Unfortunately, it shouldn’t be a surprise that on the same day the cockpit voice recorder for US Airways Flight 1549 was released, the latest jobless claims report echoed a similar refrain.

Sully, the hero pilot who made the water landing, said, “We’re going to be in the Hudson.” And the economy appears to be following an identical trajectory. It’s heading for a crash landing, with the number of Americans claiming unemployment benefits for the first time exceeding 600,000. The highest number in 26 years.

Tonight on On the Money I’ll be discussing strategies to cope with an economy that is heading down, down, down. We’ll replace cynicism with solutions as we offer advice about how to keep your job, find a new job and how to become your own boss despite the deteriorating economy. News you can really use.

Don’t wallow in the bad news, rise above it. And we’ll show you how, tonight.

About the Author: Bob Rosner is a best-selling author, award-winning journalist and contributor to On The Money. He has been called “Dilbert with a solution.” Check out the free resources available at workplace911.com. You can contact Bob via bob@workplace911.com.

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