Outten & Golden: Empowering Employees in the Workplace

Archive for May, 2009

Labor Secretary Reverses Bush's Attack on Farmworker Labor Laws

Friday, May 29th, 2009

Labor Secretary Hilda Solis will suspend the midnight Bush Administration changes to weaken labor protections in the nation’s agricultural guestworker program. The changes to the H-2A guestworker program took effect January 17, 2009, and have had a dramatic impact on wages and working conditions for agricultural workers under the program. In a notice to be published in the Federal Register tomorrow, the Labor Department announces it will reinstate the former regulations in 30 days.

“This is a great relief for our nation’s farmworkers.” said Arturo S. Rodriguez, President of the United Farm Workers (UFW). “The Bush Administration’s rules lowered wages and worker protections and made it easier to bypass legal U.S. workers in favor of guestworkers. We are overjoyed that the Secretary has overturned these cruel and illegal changes.”

The Labor Department decided to issue the suspension after a lawsuit was filed by farmworker unions, including the United Farm Workers (UFW), the Farm Labor Organizing Committee, AFL-CIO (FLOC), Pineros y Campesinos Unidos del Noroeste (PCUN) challenging the legality of the changes. The lawsuit is still pending but worker groups praised the DOL’s decision. FLOC President Baldemar Velasquez called the announcement, “an important victory against the Bush Administration’s efforts to exclude farm workers from voicing their concerns over the harsh policies of a bygone era.”

The groups emphasized, however, that for all H-2A applications filed during the period when the Bush-Chao regulations have been in effect, farmworker employment will continue to be governed by the terms and conditions of the Bush regulations, including the lower wage rates imposed by the Bush rules.

Farmworker Justice remains concerned about the wages and working conditions of those workers hired under the Bush-Chao changes. There also remains a pressing need to address the farm labor supply issue in a more comprehensive manner. One-sided changes to the H-2A program do not solve our nation’s agricultural labor supply issues. We need Congress to pass the AgJOBS bill.

AgJOBS, the Agricultural Job Opportunities, Benefits and Security Act, recently reintroduced in both houses of Congress would stabilize the farm labor force by allowing undocumented farmworkers who meet certain requirements to come forward and pay fines to earn a temporary legal status and gain documentation. It would also revise the H-2A program in balanced ways that have been agreed to by both industry and labor. The AgJOBS proposal has broad bipartisan support.

About the Author: Bruce Goldstein joined Farmworker Justice as a staff attorney in 1988, then served as Co-Executive Director starting in September 1995, and was named Executive Director in July 2005. At Farmworker Justice, Bruce has focused on litigation and advocacy on immigration issues and labor law, with a special emphasis on the H-2A temporary foreign agricultural worker program. Bruce has also sought to address the problem of “farm labor contractors” and other labor intermediaries used by farming operations, often in an attempt to avoid responsibility for complying with labor laws.

This originally appeared in Harvesting Justice on May 28, 2009. Reprinted with permission by the author.

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Is Sotomayor a Reverse Racist?: Testing the Limits of Tests

Thursday, May 28th, 2009

Supreme Court nominee Judge Sonia Sotomayor is taking heat for being a member of the three-judge panel in Ricci v. DeStefano, a case filed by seventeen white firefighters and one Latino firefighter who were the top-scorers on a multiple-choice firefighter exam.  The case is currently under consideration by the U.S. Supreme Court and has prompted conservatives like Rush Limbaugh and Ann Coulter to label Judge Sotomayor as a “reverse racist.” 

But, there is good reason to believe that the white and Latino firefighters who sued were not the most qualified for promotion.  In reality, the issue in Ricci is not reverse discrimination against better-qualified white candidates.  It is a question central to the lives of every American, of every race — “Is the person with the highest multiple-choice test score necessarily the most qualified?”

So, in contrast to the typical reverse discrimination case, it is the qualifications of those who filed the lawsuit that are in question. The Ricci oral argument suggests that the justices are likely to split along familiar 5-4 ideological lines, with Justice Anthony M. Kennedy as the deciding vote. What has not been made clear in media reports about the case is how different it is from situations where less-qualified minorities benefited from racial preferences.

The reality is that several minority firefighters performed very well on the firefighter exam. Out of more than 100 candidates competing for the seven vacant captain positions and eight open lieutenant positions, Latino firefighters ranked in seventh, eighth and 13th place on the captain list and African American firefighters ranked in 14th, 15th, and 16th place on the lieutenant list. But because of a rule requiring promotions to be doled out in strict rank order, all eight of the lieutenant positions would definitely have gone to whites, who ranked first through 10th on the list, and six of the seven captain positions were likely to go to whites, as well, because they ranked first through sixth.

This is what put New Haven officials between a rock and a hard place or, as Justice David H. Souter said from the bench during oral argument last month, in a “damned-if-you-do-damned-if-you-don’t situation”. The city’s attorney told officials they could be sued by the high-scoring African American and Latino test-takers for violating federal civil rights laws unless they had scientific evidence to show that the white candidates were truly more qualified than the minorities who would be passed over for promotion.  This and other comments made by Justice Souter, the justice whom Judge Sotomayor has been nominated to replace, signal that he, like Sotomayor, views New Haven’s actions as constitutionally valid.  

As a legal matter, employers are prohibited from using tests that have an unjustified racially “discriminatory effect.” It is undisputed that if the list had been certified by city officials, the 2003 promotions would have been so disproportionately white it would have violated federal employment discrimination guidelines. When an employer selects one racial group at higher rates than other racial groups in violation of these guidelines, known as “the four-fifths rule,” members of the adversely affected group have grounds to sue in federal court for race discrimination.

In this case, if minority firefighters had filed a lawsuit, the burden would fall on the city of New Haven to present a scientific justification that the whites who were selected are better qualified than the minority applicants who were not promoted.

Like all standardized tests, the New Haven firefighter multiple-choice test was neither all-powerful nor perfectly precise. The reality is that there is not a clear scientific basis for concluding that the 17 white candidates and one Latino candidate, who were ranked at the top of the lists, were more qualified than the African American and Latino officers who had high scores on the test but ranked slightly lower. As a group of employment testing experts has explained in their own brief to the Supreme Court, the city of New Haven could not prove that ranking in the top-10 of over 70 test-takers means you are truly more qualified than someone who ranked in the top-15.

First, the city did not have a good scientific basis for the amount of weight it placed on the multiple-choice test — 60 percent of a firefighter’s rank on the list. In a neighboring city, Bridgeport, Conn., the fire department only gave the multiple-choice test a 30 percent weighting.

Second, using the lieutenant list as an example, we cannot be certain that the top-10 firefighters (all of whom were white) were more qualified than the top-15 firefighters (two of whom were African American) because the company that made the New Haven firefighter test has admitted that the exam does not measure important skills for the job in question. In fact, it is undisputed that the New Haven firefighter exam was not designed to measure command performance or supervisory skills.

As explained in the Supreme Court brief filed by the employment testing experts, one of the important qualities distinguishing a good fire officer from a good entry-level firefighter is that supervisory officers must have a “steady presence of command so that the unit will follow orders and respond correctly to fire conditions.” Firefighters need “command presence” in order to lead their command units in safely and effectively fighting fires.

Finally, New Haven had reason to believe it might lose a lawsuit filed by minority firefighters because there were less racially discriminatory tests available to identify the firefighters most qualified for promotion. For instance, employment testing experts have found that “assessment centers” — facilities that test firefighters using standardized job-simulation exercises — do a better job than multiple-choice tests of weeding out firefighters who are “book smart, but street dumb.” These centers compare entry-level firefighters based on their ability to do real-world tasks that are typically performed by a firefighter “on the job” instead of comparing how well they answer questions about firefighting on a pencil-and-paper multiple-choice test.

In fact, there is every reason to believe that the firefighters who filed the Ricci lawsuit would not have ranked in the same position on the list had New Haven evaluated firefighters at an assessment center.  In addition to resulting in fewer racial differences in test scores, research shows that the white firefighters who perform best on multiple-choice tests do not always fare as well on tests at assessment centers that simulate real-world firefighting tasks.  In other words, using test scores from assessment centers leads to both to the promotion of greater numbers of minority firefighters and results in the promotion of different, more qualified white firefighters.

Thus, there is a strong argument that promoting firefighters based on their performance in job simulations increases more than racial diversity in the upper ranks of fire departments. It increases public safety.

In most cases challenging standardized testing, the issue is whether test scores were used properly. Here, instead of claiming that the city used a test improperly, firefighters are suing a city for putting a stop to its own improper use of a standardized test. Even in our increasingly test-centered society, this is a striking claim. The city was right to put a halt on promotions because there is no proof that those at the top of the list were more qualified than those firefighters ranked just below them.

About the Author: Kimberly West-Faulcon is a constitutional law professor at Loyola Law School, Los Angeles. Her most recent research on the legal implications of the psychometric properties of standardized tests, “The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws,” appears in the current volume of the University of Pennsylvania Law Review.

A version of this op-ed originally appeared in the Los Angeles Daily Journal on May 13, 2009. Reprinted with permission by the author.

The Case Against the Case Against the Sonia Sotomayor Nomination

Wednesday, May 27th, 2009

Sonia Sotomayor’s performance as a federal judge had already been criticized in some quarters even before President Barack Obama on Tuesday nominated her to the Supreme Court. These critiques come in three flavors: first, that her decisions show she just isn’t a very good judge; second, that Obama improperly relied on diversity to make an “affirmative action” choice; and third, that she is too intemperate for the job. The bases for these criticisms are thin, persuasive only to the many commentators and senators already inclined to oppose any Obama nominee.

The first line of attack, on Sotomayor’s rulings, does have some very recent ammo: Ricci v. DiStefano, a case the Supreme Court should decide just days or weeks from now. In Ricci, Sotomayor was part of a unanimous three-judge panel that allowed the New Haven Fire Department to jettison the results of a promotion test that resulted in a disproportionate number of whites receiving top scores.

Critics say Sotomayor ruled to allow blatant reverse discrimination, but the reality was more complex for the poor City of New Haven, Conn., which faced competing demands under federal law: (a) avoid discriminating by race, including against whites and also (b) consciously undertake efforts to eliminate even well-intended job tests that have a “disparate impact” on racial minorities, unless the test is a provable “business necessity.” Each is a clear textual command of federal law, and each crashes headlong into each other, making it certain that some judges would rule one way while others rule the opposite.

Whichever way the Supreme Court rules, the decision seems unlikely to be unanimous (most of the recent affirmative action and reverse discrimination cases were 5-4 votes), but that doesn’t mean either side is “bad at judging.” The difference of opinion means only that among skilled judges there is a philosophical difference on a difficult legal question, one we already knew: the current Supreme Court majority (Justices Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito and Anthony Kennedy) is more aggressive about policing “reverse discrimination” against whites, while a current Supreme Court minority (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) and many lower-court judges (such as Sotomayor) do not see any impermissible “reverse discrimination” in applying the rule against allowing most tests that effectively screen out racial minorities.

A broader look at Sotomayor’s jurisprudence shows an impressive body of work, including in the same field as this more controversial recent case. For example, when I first heard Sotomayor’s name floated, I looked up some of her old written judicial decisions, and I was pleased to see that one of my favorite federal appellate decisions in employment law (a field of mine), Raniola v. Bratton, was Sotomayor’s handiwork (a piece of trivia I had forgotten over the years).

In the 2001 opinion, Sotomayor led a unanimous appellate panel in reversing the pretrial dismissal of a female police officer’s claims of discrimination, retaliation, and a hostile work environment. Sotomayor’s opinion was meticulous, addressing every one of the trial judge’s rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country — a more scholarly effort than typically is necessary for a decision on an individual New York police officer’s individual claim. Agree or disagree with her on contentious issues like discrimination law, Sotomayor is a thoughtful, scholarly judge whose work holds up with the best of them.

The second line of attack, on Sotomayor as an “affirmative action” choice, implies that Obama sacrificed merit selection in favor of diversity selection. But Sotomayor’s resume qualifications are unimpeachable: 17 years as a federal judge, at both the trial and appellate levels (unlike the nine current justices, whose only judging experience has been on appeals, not trials); impeccable academic credentials (graduating summa cum laude from Princeton University and, then, from Yale Law School, where she was an editor of the school’s most prestigious academic publication, the Yale Law Journal); and varied legal practice experience (she was a criminal prosecutor in Manhattan and then a civil litigator, eventually specializing in intellectual property work).

Still, even the best resume gets you only on a long list of similarly qualified candidates — just ask federal appellate judges J. Harvie Wilkinson, Edith Jones, J. Michael Luttig, Emilio Garza or any of the other impressive Republican Supreme Court candidates whom President George W. Bush passed over in 2005 in favor of then-federal appellate judges Roberts and Alito.

Admittedly, among the list of qualified candidates, Sotomayor was especially appealing because of the diversity she would bring to the court — not just a women to join a currently almost all-male court, and not just the first Hispanic justice, but also an individual who came from humble beginnings. Her mother, a nurse, raised her in the South Bronx after her father passed away in her youth.

The Supreme Court is the least diverse branch of the federal government, in part because due to its low turnover (only one opening every four years or so) and age of its nominees (most nominees are in their 50s), the current Supreme Court largely reflects the pool of 50-something lawyers in the 1980s and 1990s, which in turn reflects the pool of those attending law school in the 1960s — for historical reasons, not the most diverse crowd.

With the Supreme Court, a critical institution that lags the rest of the government (and private industry) in diversity and that is impossible to diversify immediately, Democratic and Republican nominations alike have considered diversity, even of the purely race-and-gender sort — contrary to the “affirmative action is for liberals” folklore. For his first Supreme Court nomination, in 1981, President Ronald Reagan, having promised to appoint the first female justice, picked Sandra Day O’Connor, who turned out to be the most powerful justice of the 1990s and early 2000s despite a light record of prior accomplishment; O’Connor had been a state legislator and state lower court judge, a far cry from Sotomayor’s resume.

A decade later, in 1991 President George H.W. Bush famously declared “the best-qualified person” for the Supreme Court to be Thomas, who at the time had barely a year of judicial experience and was the youngest court nominee in decades — but who just happened to be an African-American Republican available to replace the retiring Thurgood Marshall, the Supreme Court’s only African-American Justice.

President George W. Bush’s ill-fated nomination of Harriet Miers came after he demanded that staffers specifically provide him female names for potential nominees, according to recent published reports.

So the likely “affirmative action” attacks on the Sotomayor nomination miss the mark, both in their insinuation that she lacks impressive qualifications and in their implication that only liberal Democrats consider diversity relevant to a high court as important as it is non-diverse. Someday, the Supreme Court will be diverse enough that presidents will face less such pressure — but the current court of seven white men, one African-American man, and one white woman isn’t quite there yet.

The third criticism of Sotomayor — that she is an intemperate bully — derives largely from a collection of anonymous quotations in the Almanac of the Federal Judiciary. These reviews, submitted by practicing lawyers, are not pretty: “She is a terror on the bench.” “She is very outspoken.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out-of-control manner. She makes inappropriate outbursts.”

Like many lawyers, I do read the AFJ when I need background information on a judge, but its anonymous quotations have to be taken with a few grains of salt. I do not believe the AFJ ever has claimed that the comments they publish are a random sampling of the great many comments they receive, as opposed to a sampling of the most notable comments. More importantly, some of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being “very outspoken”? Do Sotomayor’s critics see it as a bad thing that Scalia frequently is “overly aggressive” on the bench and in his notoriously entertaining public speeches?

Some quick numbers bear out the suspicion of gender bias in the anonymous criticisms of Judge Sotomayor. Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a “bully” or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary — that male judges are more likely to be aggressive, whether in proper or improper ways.)

While my small-number statistics don’t qualify as an official empirical study, anyone with experience in supervisor evaluations of employees, student evaluations of professors, workplace promotion decisions, etc., knows that assertive women are more likely to be criticized as “excitable,” “overly aggressive,” etc. Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men.

The attacks on Sotomayor’s aggressiveness miss the mark for a more fundamental reason, though. “Judicial temperament” is critical for trial judges dealing with human drama — witnesses reliving traumatic events, emotionally charged evidence, and lawyers’ arguments that tug on jurors’ heartstrings.

But as any practicing lawyer can tell you, appellate litigation is a typically dry affair, vastly different from trials. In appeals, parties and witnesses do not testify, and the lawyer does not issue impassioned hand-over-heart pleas. The vast majority of an appellate lawyer’s work is the solitary researching and writing of lengthy briefs analyzing language from judicial precedents, statutes and regulations. The in-court portion of an appeal is just a short argument on the briefs’ legal analysis, usually just 10 to 15 minutes, to a panel of judges. When a lawyer gets roughed up by a panel of appellate judges, usually the criticism is an impersonal, geeky debate about what amounts to legal minutiae, however important the case is.

Especially at the Supreme Court, appellate litigators tend to be grizzled pros who have been through it all — professional appellate litigators at the Department of Justice, and prestige appellate litigators at private firms, like Roberts in the late 1980s to early 2000s, who served in both of those kinds of appellate litigation jobs.

“Judicial temperament” is a good thing, but it matters mainly for the over 99 percent of judgeships in the country that are not at the United States Supreme Court, which handles only appeals, primarily by seasoned vets of the appellate bar.

The debate on the Sotomayor nomination will be fascinating to watch. The criticisms of her rulings could yield a productive public debate about how judges should decide cases, how the Constitution should be interpreted, and other matters fundamental to our constitutional democracy.

On the other hand, we could get distracted by sideshows: criticism of a Democratic “affirmative action” nomination or criticism of “judicial temperament” based on the exact sort of anonymous complaints about “aggressiveness” that women commonly receive. In short, the nomination could be a wonderful exercise in democracy, or it could be a train wreck of political demagoguery.

About the Author: Scott A. Moss is an associate professor at the University of Colorado Law School.

This article originally appeared in Politico on May 27, 2009. Reprinted with permission by the author.

Photo: AP

 

AT&T v. Hulteen: A Bad Decision that Did Not Have to Be

Thursday, May 21st, 2009

In AT&T v. Hulteen Justice Souter authored the 7-2 majority opinion holding that AT&T’s “reliance” interest in perpetuating past pregnancy discrimination trumps the right of  Noreen Hulteen and her fellow plaintiffs to enjoy the same level of retirement benefits as other employees with the same longevity of service to the company.  This is a deeply unfair decision, contrary to the intent of Congress, and utterly unnecessary.

At oral argument Justice Souter acknowledged that the case could go either way, because there were competing lines of legal authority from which the case could be viewed.  The Court’s choice to immunize AT&T’s conduct from liability by resurrecting General Electric v. Gilbert, 429 U.S. 125 (1976), a decision overturned by Congress’ enactment of  the Pregnancy Discrimination Act of 1978, provides a vivid illustration of conservative judicial activism under the guise of  “strict” application of the rule of law.

There was nothing inevitable about this decision. Gilbert holds that denying medical benefits to pregnant women is not “necessarily” sex discrimination, not that disparate treatment of pregnant women could never be.  In fact, one year later Justice Rehnquist, who authored Gilbert, wrote the majority opinion in Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) holding that burdening pregnant women by forcing them to forfeit earned seniority is sex discrimination.

In this case, AT&T’s pregnant employees were deprived of all but 30 days of seniority credit for the time they were out on pregnancy leave, while employees on leave for other disabilities forfeited none. The Court chose to characterize this disparate treatment of pregnant employees as not providing a “benefit,” permissible under Gilbert.  But it could just as easily have decided that it created a “burden” constituting illegal sex discrimination under Satty.

Another choice the Court made was to treat the case as a challenge to AT&T’s seniority system as a whole, rather than to a specific, post-PDA retirement benefit calculation. There is a vast difference, recognized by the courts, between “competitive” seniority and “benefit” seniority.  The Hulteen plaintiffs did not seek to obtain a competitive advantage over male co-workers, or any other retroactive benefit.  They merely sought equal treatment in the calculation of future compensation — retirement benefits“ to which they are clearly entitled by the explicit language of the PDA: “[W]omen affected by pregnancy….shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work…”

In holding as it did, the majority chose to “empathize” with AT&T rather than the retiring women who had already endured a lifetime of disadvantage on the job as a result of their pre-PDA pregnancy leaves.  The majority weighed speculative harm to AT&T’s “reliance” interest more heavily than Congress’ explicit, strongly worded intent to protect women from economic injury and injustice on the basis of pregnancy.

But to what end?   To establish the principle that companies may perpetuate discrimination even after Congress acts?    What the Court chooses to call a “retroactive” application of the Pregnancy Discrimination Act could just as easily be described as enforcement of the statute.

No wonder Justice Ginsburg was figuratively tearing out her hair!  There could not be a better illustration of what is at stake in the appointment of Justice Souter’s replacement nor of the need for another woman with Justice Ginsburg’s understanding of employment discrimination on the Supreme Court.  Let’s hope that Congress acts swiftly to overturn this exceedingly bad decision, in language that will finally lay to rest the ghost of Gilbert past.

About the Author: Charlotte Fishman Charlotte Fishman is a San Francisco employment discrimination attorney, and Executive Director of Pick UP the Pace.  She authored the an amicus brief for the National Employment Lawyers Association et al. in support of respondents in AT&T v. Hulteen.

Towards a “New Normal” in the American Workplace - A Public Policy Platform on Flexible Work Arrangements

Wednesday, May 20th, 2009

On the heels of First Lady Michelle Obama’s challenge to find ways to encourage employers to provide more flexibility to employees, Workplace Flexibility 2010, a Georgetown Law-based think tank, has released a new report outlining a comprehensive set of policy solutions to expand Americans’ access to flexible work arrangements (FWAs) such as compressed workweeks, predictable schedules, and telework.  The common-ground solutions described in the report can benefit both working families and businesses.

The report draws on decades of research on changes in the American workforce – dual earner couples are now the norm; older workers need to work longer to save for retirement; men and women want to share caregiving responsibilities; many lower-wage workers work nonstandard schedules and multiple jobs to make ends meet; and more people with disabilities are working but may need a range of supports.

This increased diversity and complexity within the American workforce – combined with intensifying global competition in a 24/7 marketplace – have raised unprecedented organizational and societal challenges that impact both employers and employees.  And yet, our workplaces have not caught up in a systematic or sophisticated way to these new realities.  We live in a world of changing individuals and often unyielding institutions.

Flexible work arrangements support employees who struggle to meet the demands of work while also fulfilling personal responsibilities – caregiving for a loved one, volunteering, attending religious services, or obtaining job training.  At the same time, they have been shown to help employers support their workforce, meet their business objectives, and increase their competitive advantage.

Workplace Flexibility 2010’s policy platform represents the culmination of years of in-depth conversations with employers, employees, managers, labor, researchers and advocates in Washington and across the country.  It provides a detailed blueprint for advocates, the White House, Congress and other policymakers to build on innovative workplace flexibility strategies – and highlights numerous examples of effective business practices.

In order to make FWAs the “new normal” in the American workplace, the report recommends five complementary prongs:

Spur a national campaign to make FWAs compelling to both employers and employees by:

Launching a strategic multi-media public education campaign; providing awards to recognize and encourage businesses to offer and implement FWAs; and conducting research on the impact of FWA practices on employees, businesses and communities and disseminating the findings.

Provide employers and employees with the tools and training they need to make FWAs a standard way of working by:

Making training and technical assistance on how to implement FWAs readily available to both employers and employees; launching a comprehensive website with information about the needs and benefits of FWAs, FWA best practices, model policies and procedures, and federal laws and programs; clarifying perceived legal obstacles to FWAs; and removing or considering the removal of actual legal obstacles.

Support innovations in FWAs, learn from those efforts, and disseminate lessons learned by:
Experimenting with new ideas through pilot programs – including piloting a right to request in the federal workforce; piloting FWAs for low-wage workers employed by federal contractors; and piloting private sector innovations such as mass career customization and team scheduling with new industries and employers.

Lead by example, making the federal government a model employer by:

Demonstrating high-level support for FWAs in the federal workforce; including FWAs as a key component of the federal government’s human capital management agenda; providing training, technical assistance, and resources to support the implementation of FWAs within the federal government; and regularly assessing how FWAs are working and affecting employees, the workplace and the broader community.

Build an infrastructure of federal, state and community players to implement the first four prongs of the effort by:

Engaging all the players at the federal state and community level who will be key to a successful effort, and creating the infrastructure at each of these levels necessary for an effective partnership among these key players.

This report sets the stage for a national conversation among employee and employer groups, other stakeholders and policymakers about innovative solutions that work well for both employees and employers.  Engaging in this conversation and embarking on the necessary action steps are key to equipping our American workplaces to meet the challenges of our 21st century workforce.

The full report is available at www.workplaceflexibility2010.org.

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

Katie Corrigan is the Co-Director of Workplace Flexibility 2010 where she, along with Chai Feldblum, is responsible for overseeing the strategy, legislative lawyering, policy research, media, and constituent outreach components of the effort.

An Agreement That Isn't Good for Anyone: The Panama Trade Promotion Agreement

Wednesday, May 20th, 2009

People and planet should come before profits, but the proposed Panama trade plan would mean greed rules. The Senate Finance committee is meeting tomorrow to discuss the proposed Panama Trade Promotion Agreement. Top trade negotiator Ron Kirk is trying to ram through this agreement by July 1, when the Panamanian head of state Martin Torrijos leaves office. But this is just another free trade agreement that is bad for the people of Panama, it’s bad for the planet, and it’s no good for people of the US. We should call upon Congress to stop it now.

There’s a rancher that I know who raises cattle in the San Blas mountains of Panama, who I’ll only call Uncle Rickie. I met Uncle Rickie when I traveled to Panama in November of 2008, and I remember him for being a jolly fellow with a big belly who proudly bounced his new granddaughter Antonia, his first grandchild, on his knee.

If the Panama agreement went forward, Uncle Rickie would have to contend with a host of difficulties. The first would be that US cattle ranchers, who enjoy hundreds of millions in subsidies from the US government (US livestock farmers got handouts of about $344 million in 2003, for example,) would suddenly be able to sell duty-free to Panamanians. At the same time, Uncle Rickie will have to compete with a dramatic influx of cheap pork products from the US. Pro-pork lobbyists think that increased sales to Panama will result in $20.6 million in increased revenue. Uncle Rickie will have a lot of trouble making a profit by selling his beef to the Panamanian market, and eventually he may have to sell his land.

Farmers should be allowed to sell to their local markets. Local, living economies are good for everyone. If officials pass the harmful agreement, farmers like Uncle Rickie will no longer be able to carry on farming. Who would be there to buy the land of farmers who are forced to sell? Companies from the US and other rich nations, and maybe some wealthy Panamanians who support this agreement. This leads to a consolidation of power and decision-making as fewer people own more and more of planet earth. But people have a right to self-determination and autonomy, and the Panamanian government should respect that right.

Another supporter of the Panama agreement is Caterpillar, maker of heavy machinery used for logging and constructions. They are frothing at the mouth thinking of all the Panamanian trees that they can cut down and the increased heavy machinery sales that will result.

By the time little Antonia is going on her first date, the forests of Panama will probably be decimated, the clean rivers and pristine stands of old growth trees a distant memory. Verdant ecosystems will be forever ruined for incredible species like the blue morpho butterfly, which I first saw shining iridescently as it soared through the rainforest in the Boquete region of Panama. Like all of us, Antonia has a right to intact ecosystems, which Caterpillar seeks to undermine through supporting this trade agreement.

Another group who will be thrown under the bus if this agreement passed would be the Kuna Indians, a Panamanian ethnic group who have preserved their cultural heritage. Traditional farmers and artisans, these indigenous peoples will also face steep competition and many may have to abandon the ecologically sustainable, culturally rich ways of life their ancestors have known for thousands of years.

Will Antonia benefit from a more productive national economy? Probably not. Even looking at the brute economic indicator of gross domestic product, this trade agreement does not promise positive effects.

A similar trade agreement offers foreshadowing of what could happen if the Panama agreement goes through. NAFTA, a 1994 trade agreement between Canada, the US and Mexico, has shown that increased unprotected trade with the US is not likely to promote self-government, support local, living economies, or benefit most people at all.

GDP growth has been unequal after NAFTA, with Canada growing an average of 3.6 percent per year, the US growing 3.3 percent and Mexico growing only 2.7 percent. The average Mexican did not benefit from this growth, as income inequality has risen. Wages of Mexican workers decreased by 18 percent in the first five years. The predominant occupation in Mexico prior to NAFTA was farming, but many farmers, mostly in Central Mexico, were forced to sell or abandon their land after subsidized corn from the US flooded into Mexican markets, leaving the Mexican farmer unable to compete. Corn is indigenous to Mexico, and was farmed mostly sustainably. But now what is left is forced to compete in an atmosphere of industrial agriculture.

After NAFTA, Mexico has maintained a trade deficit with the US, meaning they import more than they export. This leaves the country hemorrhaging money and exports, which isn’t good for anyone in Mexico.

Furthermore, trade agreements like this one are bad for US workers, as we lose jobs here in the US. In just the first seven years, NAFTA had caused the loss of 766,030 jobs in the US. And it will cost us tax dollars, too. By 2002, the US Department of Labor had qualified 408,000 workers extensions on their unemployment benefits because their jobs had moved to Mexico.

Trade between the US and Panama totaled $2.1 billion in 2002 according to the office of the US Trade Representative. US exports account for about $1.8 billion of that amount. This means that for every $10 worth of goods that the US sells to Panama, Panama sells only $1 worth of goods to the US. The exports Panama sells to the US account for a tiny fraction, only 1.4 percent, of its GDP of $21 billion. Yet it is willing to sell its people down the river for this pittance.

The farmers who’ll be forced to sell their land and migrate may be forced to relocate to the city of Colon, where there are jobs in the Colon Free Trade Zone, or Zono Libre. When you picture a free trade zone, picture “Pleasure Island” from the Disney cartoon Pinocchio. For rich companies, a free trade zone represents a lawless area free from tariffs, taxes, or pesky labor or environmental laws. It usually looks like a collection of warehouse-like buildings on the edge of a port city that is protected by barbed wire. Working people (such as ex-farmers) travel into these zones each morning to do the most tedious grunt labor in return for low wages. Corporations like the low wages, while the workers are usually just desperate for any work they can get. Ships pull up to the buildings, unload raw materials like T-shirt fabric or radio parts, workers assemble them, and the finished goods get shipped to rich countries where people can afford them.

In his 2008 State of the Union address, Bush asked Congress to approve the Panama trade agreement, gleefully stating that the agreement “will support good jobs for the finest workers in the world: those whose products say ‘Made in the USA.’” That sentiment is perplexing to anyone familiar to Zono Libre, where low-paid workers work in unsafe work conditions to sew together textiles bound for the US valued at $400 million per year for companies like Orotex, with offices in Farmington Hills, Michigan. Textiles and clothing account for about 24 percent of the work done in Zono Libre. This happens as US workers lose more and more textiles jobs (stat), yet purchase more and more clothing (stat).

For all the celebrated freedom that free trade measures like the Colon Free Trade Zone has received, you would think that Panamanians would be better off, however the average Panamanian is not better off. Income inequality has risen, placing Panama among some of the most unequal countries in Latin America. Panama’s index for income inequality is 60, according to a World Bank report. As the report says, “[Inequality] is more obvious in urban areas like Colon, where the close, physical juxtaposition of the modern, dynamic wealthy sector with poor city slums accentuates the perceived gap between rich and poor.”

I have never seen Colon since my Panamanian friends have insisted that if I were to travel there I would become a certain victim of a mugging or kidnapping. But the real Panamanian danger isn’t really frustrated urban poor who see wealth all around them but can’t touch it. The real danger is the Panama trade agreement.

Some are arguing that this trade agreement is needed to rescue the US economy. But Panama’s entire economy is 0.15 percent the size of the US economy. The US has one hundred times more people than Panama. That’s right, I’m saying the country is tiny. For US officials to undermine people’s basic rights in order to do business with this small country in the hopes that its tiny economy will deliver us from certain economic death is a mistake.

If passed, this agreement will harm Panamanians like Uncle Rickie. It will negatively impact little Antonia and make her economic future less certain. It will not benefit the average Panamanian but is likely to lead to a decrease in self-government and a spike in income inequality, as NAFTA did. And it will not benefit people in the US. Our Congress should vote an emphatic “no” on the Panama Trade Promotion Agreement.

About the Author: Lacy MacAuley is a global justice activist, antiwar activist, and environmentalist with a passion for amplifying the voices of those who otherwise would not be heard. With a BA in International Relations specializing in World Development Studies, she is committed to promoting local, living economies that place people, planet, and principle before profit. She ignited a creative fire while working as news editor for her college newspaper, and has kept the flame burning through intensive grassroots organizing and  Lacy has done media relations work with groups such as Project Vote and ACORN, Global Justice Action, United for Peace and Justice, Jubilee USA, Mountain Justice Summer, and Working America (community affiliate of the AFL-CIO). Lacy is currently working on the Global Justice Media Project, and doing progressive communications work with Massey Media LLC.

Don't Cut Legal Corners When Starting Your Business

Tuesday, May 19th, 2009

Despite the difficult economy, a record number of new businesses are being created this year. When you’re starting a new business from scratch, there are a few things to keep in mind that will help you create the foundation for a good workplace – and protect your organization from the costly litigation that could result from failure to comply with employment laws.

1. If you have employees, you need a payroll service. If you’re only paying yourself, then maybe you can get by with QuickBooks or another basic accounting system. But once you begin to hire employees, you will save time and money (as well as the grief of worrying about whether your employees are being paid properly) by using a payroll service. Many banks and other service providers offer this service to their small business account holders, and the fees are a reasonable, giving this path an immediate payoff.

No one wants the IRS or Department of Labor at their doorstep, and not paying payroll taxes properly is a sure way to attract an agency’s attention. Most payroll services will also help with related administrative tasks, like tracking sick and vacation leave, allowing you to focus your energy and attention on growing the business.

2. Adopt personnel policies. Then follow them. While many start entrepreneurial ventures seeking an informal and collegial environment, and desiring to move away from the bureaucratic practices of large corporations, one of the best ways to assure that your business resembles the workplace that you seek is to establish fundamental policies to guide how you operate. It’s not hard to find a model set of personnel policies and adapt them to your business. They provide a basic shared understanding between the organization and the employees about they can expect from one another, and they underline your commitment to treat employees legally and fairly. They will also force you to think about the kind of workplace culture you wish to cultivate, and what expectations you have for your team.

The time you spend now, whether with a lawyer or HR professional, or even purchasing model policies for sale over the Internet, will directly correlate to the time saved later in preventing problems and dealing with employment issues fairly and efficiently.

3. The number of employees you have should not affect your policies. Although a number of workplace laws only apply to businesses with a certain number of employees, their intent is fair treatment of employees. For example, under Title VII of the federal Civil Rights Act, certain discrimination laws apply to employers with 15 or more employees. If you’re smaller than that magic number, then you might be tempted not to worry, because the laws don’t apply to you. Resist that temptation. If you’re successful, you’re going to keep hiring more employees, right?

If you start out not complying with employment laws, who’s going to be paying attention – much less transforming your policies and procedures – when you hit that magic number? And you just might be wrong about the number. For example, the antidiscrimination laws in California apply to employers with five or more employees, except the law prohibiting sexual harassment, which kicks in with only one employee. Fair practices are good policy, regardless of the size of your organization – and they help you avoid problems later.

4. Pay people what you’ve agreed to pay them, what the law requires and on time. The first commitment that an employer makes to an employee is to pay the employee at an agreed upon rate on a regular and predictable schedule. This is the first step in developing a trusting relationship with employees, and failure to do so damages your credibility as an employer.

While a full discussion of wage and hour issues is complex (more information is available here), you don’t have to be an employment law expert to know that you need to pay your workers what you’ve agreed to pay them. Regulations around pay are a good example of laws tied to the number of employees, and it is wiser to comply with Fair Labor Standards Act rules now rather than waiting until the organization has grown to meet its requirements.

No one can guarantee that you won’t face a lawsuit at some point. The law is complicated, and people make mistakes. Often no one can predict how the law will be applied in a particular situation until it presents itself. But unhappy employees are more likely to file lawsuits, and that’s not something you want to deal with regardless of the merits.

Entrepreneurs who follow these basic principles from the beginning can help ensure fewer problems as their ventures grow and thrive, and are more likely to end up with satisfied and loyal employees who can make real contributions to the incremental and successful expansion of their business.

About the Author: Paula Brantner is Executive Director of Workplace Fairness, which hosts the Today’s Workplace blog, and has worked as an attorney in the area of employment discrimination and civil rights law for over 16 years. Workplace Fairness is a nonprofit organization that provides information, education and assistance to individual workers and their advocates nationwide and promotes public policies that advance employee rights.

This article originally appeared in winningworkplaces.org. Reprinted with permission of the author.

A More Level Playing Field

Monday, May 18th, 2009

The Super Bowl is a key date for any would be entrepreneurs. The milestone was a $12.95 student-shot commercial for Doritos. Not only was the commercial judged to be one of the best of the day, but this commercial officially levels the playing field between massive corporations and small entrepreneurs.

Let’s face it, for the last ten years columnists, career coaches and baristas have talked up the era of the “free agent.” Where we would all say goodbye to the shackles of corporate tyranny and strike out on our own.

But a funny thing happened on this overground railroad to freedom. It never really materialized. Sure Kinkos, Starbucks, Costco and Fed Ex have all made a lot of money catering to small businesses people. But as much as people have thrived outside of the corporate sphere, it’s still a David versus Goliath environment, where you had to avoid getting up the dander of any big corporation or risk being crushed. I’ve had a number of people write to me through the years to describe what it’s like when more attorneys show up at your door than you have employees, so it should be no surprise that big corporations have a unique ability to get their way. Or to get you out of their way.

That’s where the Doritos commercial comes in. For $2.6 million dollars Doritos ran an ad that cost $12.95 to make—to fully comprehend what you just read, you might want to consider rereading that last sentence. Normally such a miniscule expenditure would be referred to as a “shoe-string” budget, but having recently shopped for shoe strings, it’s even a notch below laces.

This commercial is important because it shows that the little guy or gal can come out on top. Part of the reason is obvious, technology. As a friend recently pointed out, the $500,000 editing suite that he used to work on at a network TV affiliate is now available on a midrange computer with relatively inexpensive software.

But there is an even bigger untold story here. Another part of the rise of the entrepreneur is the inability of many corporations to get the value out of all of the brains within their organizations. Like an elementary school class, I believe many corporations are more focused on discipline, litigation and compliance and not drawing out the genius of their people.

Think I’m exaggerating? Ask anyone in corporate America about their day. Most will tell you that they spend most of their time trying to stay afloat amongst hundreds of emails. In fact, today’s average corporate Joe or Jane is less connected to their coworkers than the average free lancer was ten years ago.

Take a bit of technology, throw in the under-use of employees in most corporations and you get an environment where small, feisty organizations can compete—and win—on even the biggest stage.

Tired of working for “the man” (or “the woman”)? Maybe it’s time for you to become one.

QUOTE.

“Never follow the crowd.” Bernard Baruch

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via [email protected]

Right-to-Work and At-Will Employment

Friday, May 15th, 2009

When I was still in college, finishing up my Undergraduate Degree, I worked in a high-end hotel in Chapel Hill, NC. In the back next to the time clock was the poster that listed your rights and responsibilities as an employee. Among those was the explanation of Right-to-Work. At the time, I didn’t fully understand it and my Supervisor explained to me that it meant that I did not have to join a Union if I didn’t want to. OK, so what does that have to do with anything? As I become more politically aware and did more work in progressive politics, I learned exactly what it meant to live and work in a Right-to-Work state.

For starters, it weakened Organized Labor’s political power to fight for better wages, better benefits, and to make sure that Union members were not terminated without cause, or At-Will. While I am a pretty independent minded person and I don’t want anyone telling me that I have to join something as a condition of my employment or as part of my way of earning a living, the part that is not talked about as much is the At-Will employment aspect.

The possibility of your job being terminated without cause has always been very unsettling to me. I have always felt that employers have a disproportionate amount of power over employees in this respect. Right-to-Work and At-Will employment are tied together very closely here in Virginia. While I can see some rational with not having to join a Union as a condition of my employment, I am absolutely opposed to the At-Will doctrine for a number of reasons.

While the At-Will doctrine can be exercised by either the employee or the employer, the opportunity for workplace abuses on the part of the employer is much greater. While I can certainly appreciate the rights of the employer, being able to hire people that are qualified and will do work that will make your business or company successful, there has to be a limit to being able to terminate someone without cause. I’ve worked with many different types of people over the years, many of whom I just as soon forget for a wide range of reasons, but what if that annoying co-worker has a point about the way things are done at their place of work and complains? Despite being annoying, they do good work, are reliable, and come to work on time, is it right to fire this person for speaking up or expressing their opinion? If sexual discrimination, or any discrimination for that matter, is occurring in the work place and someone speaks up, is it fair that that person be fired. If the employer is changing a posted schedule for employees without giving them enough notice and the employee speaks up or complains, is it right to fire them? There are other scenarios, but these are some of the ones that seem to be the most common.

In a post on a blog a few months ago, I was disappointed to read that one of the Democratic Candidates for Lt. Governor was a strong supporter of Virginia’s Right-to-Work law. Again, I can see some rational about not being forced to join a Union as a condition of employment, but the At-Will doctrine that is so closely tied to Right-to-Work law needs to change. My suggestion would be to allow businesses or companies to have the right to terminate without cause within a 60 to 90 day probationary period. After this, if an employee is to be fire it has to be for cause. The At-Will doctrine puts too much of the burden on the terminated employee to show they were fired for improper reasons, and too much power in the hands of the employer. Any other thoughts?

About the Author: Barry Butler has been active in progressive politics and social justice since 1998.  He is a native of Virginia from the Southside Hampton Roads area of Chesapeake.  He is a graduate of North Carolina Central University with a degree in Political Science and is a part-time Graduate Student at Duke University.  Barry is a trained political and community organizer, currently involved in blogging and Strategic Consulting projects.  He and his family reside in Campbell County, just south of Lynchburg, VA.

This article originally appeared in Off K Street on May 11, 2009. Reprinted with permission of the author.

President Reiterates Call for Passage of Employee Free Choice Act; Says Compromise May Be Needed

Thursday, May 14th, 2009

President Obama knows the value of unions to the American economy and to American workers. He has forcefully spoken in support of workers organizing to improve their lives and staunchly supported the Employee Free Choice Act. But even a popular president has to count votes. Today he spoke again on the Employee Free Choice Act and while admitting the votes may not be there for passage in its present form, he spoke of the need to reestablished balance to the workplace.

At a town hall meeting today in Rio Rancho, N.M. the President spoke about the bill and the vital role unions play in a strong economy. He said that, “one of the things that I believe in, and if you look at our history, I think it bears this out – even if you’re not a member of a union, you owe something to unions, because a lot of the things that you take for granted as an employee of a company, the idea of overtime and minimum wage and benefits, a whole host of things that you, even if you’re not a member of a union, now take for granted, that happened because unions fought and helped to make employers more accountable.”

In addressing declining union membership he admits that it, “…has declined significantly over the last 30 years. And so the question is why is that? Now part of it, the economy has changed. The culture has changed. There hasn’t been a very friendly politics in Washington when it comes to union membership. But part of it just has to do with the fact that the scales have been tilted to make it really hard to form a union. so a lot of companies, because they want maximum flexibility, they would rather spend a lot of money on consultants and lawyers to prevent a union from forming than they would just going ahead and having the union and then trying to work with, and collectively, allow workers to collectively bargain..

During the last few decades employers have aggressively opposed the right to organize in their workplaces hiring union busting consultants to place obstacles in the way of workers. Current law doesn’t provide ample protection or penalties for employers creating an atmosphere of fear in the workplace.

Obama believes that a solution is at hand. “So there’s a bill called the Employee Free Choice Act that would try to even out the playing field. And what it would essentially say is that if majority of workers at a company want a union, then they can get a union without delay and some of the monkey business that’s done right now to prevent them from having a union.”

Corporate anti-union front groups have advanced an agenda against the right to organize claiming that the bill would tilt the playing field too far in working people’s favor. Obama addresses these concerns and admits that compromises may be needed to ensure passage.

“Now, I want to give the other side of the argument. businesses object to some of the provisions in the Employee free Choice Act because one of the things that’s in there is something called card check where rather than have a secret ballot and organize a big election, you could simply have enough employees, a majority of employees, check a card and that would then form the union. And the employers argue we need to have a secret ballot. I think that there may be areas of compromise to get this bill done.”

In closing his remarks on the bill Obama reiterates his support and asserts that labor law reform will be passed. “I’m supportive of it. But there aren’t enough votes right now in the Senate to get it passed. And what I think we have to do is to find ways in which the core idea of the Employee Free Choice Act is preserved, which is how do we make it easier for people who want to form a union to at least get a vote and have an even playing field. How do we do that? But at the same time get enough votes to pass the bill. That’s what we’re working on right now. I think it’s going to have a chance at passage but there’s still more work to be done.”

This article originally appeared in the Washington DC Examiner on May 14, 2009. Reprinted with permission of the author.

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