Outten & Golden: Empowering Employees in the Workplace

Archive for December, 2009

Top 10 SEIU Blog Stories of 2009

Thursday, December 31st, 2009

Image: Kate ThomasA little over a year after its launch, more than 1,400 posts have appeared on the SEIU Blog. As the end of 2009 drew closer in sight, we decided to look through our records to find the 10 most popular stories on the blog this year.

Although I was definitely surprised at one or two that made the top 10, I think the list does a relatively decent job of capturing many of the interests of the political-minded activists that have grown into regular readers of the SEIU Blog: fighting for quality, affordable health care and public services for all Americans, ending corporate greed, holding elected leaders accountable and standing up for working people.

Here are the top-read SEIU Blog posts of 2009:

1. Domestic violence is a “pre-existing condition”

20090911feature-denied-1.jpgBack in September, we began a month-long campaign publicizing the fact that in eight states and Washington, DC, insurance companies could deny coverage to a victim of domestic violence, citing it as a “pre-existing condition.” Everyone from feminist bloggers to the first lady weighed in on the issue, throwing their weight behind eliminating this despicable practice and demanding gender equity in healthcare reform. SEIU launched a multi-channel campaign using blogging, online petitions, Facebook & Twitter to raise awareness and urge members of Congress to demand health care reform that did not discriminate against women.

2. Stop the violence at health care town halls

Things turned ugly at healthcare town halls in August, as events designed to serve as open, safe environments to ask questions of elected officials about health reform degenerated into violent shouting matches and false accusations.

3. Joe Lieberman will hate this

20091028inset-adopt-a-state.jpgWhat do Sens. Joe Lieberman (D-CT), Mary Landrieu (D-LA), Blanche Lincoln (D-AR) and Ben Nelson (D-NE) have in common? Well, they all caucus with the Democrats–and in November, they alone were threats to whether or not the Senate was going to get to vote on health care reform. In response, we launched an an “Adopt-a-State” campaign to reach out to constituents of Senators who may not support a cloture vote.

4. Time to Go: Bank of America must fire CEO Ken Lewis

bofa-badforamerica_promoSM2.jpgThrough a grassroots and online-driven campaign, over 100 events were held across the nation against Bank of America and more than 90,000 taxpayer proxy cards were collected & delivered at BofA’s annual shareholder meeting, calling for the firing of Ken Lewis for his corporate greed, corruption and anti-worker company policies. Along with helping to get Lewis fired, it was our most successful online list building campaign to date.

5. Letter from President Andy Stern to SEIU members: Where do we go from here?

HCANCincy_sm.jpgFollowing a meeting of the SEIU leadership in mid-December, President Andy Stern sent a letter to SEIU’s 2.2 million nurses, doctors, home healthcare workers, janitors, security guards, and child care workers laying out his concerns with and expectations for healthcare reform legislation currently moving through Congress.

6. Your Guide to Corporate Astroturfing: Lobbyist-Run Groups Orchestrating…

Astroturf.jpgThis post was written during the height of the buzz over disruptions of health care town hall meetings by right-wing opponents bent on blocking any reform legislation. At the same time these groups were disrupting serious and civil discourse about healthcare reform with discredited myths about reform, they were also engaging in Astroturf [read: fake grassroots] activism. We profiled some of conservative lobbyist-run groups who were leading the way orchestrating town hall mobs.

7. Republican Senators Vetoed Insurance Protection for Domestic Violence Victims

Senatorsvotedagainst-domesticviolence9_sm.jpgIn 2006, an amendment was introduced to the Health Insurance Marketplace Modernization and Affordability Act of 2006 that would have forced insurance companies to stop ignoring state laws that provided protection for victims of domestic violence, specifically when it came to denying them insurance coverage. Ten Republican Senators voted against it.

8. Warning: This story is going to make you angry

ProtectWomensHealth_sm220px.jpgFrom not covering maternity care to calling domestic violence a pre-existing condition, insurance companies seem to have written the book on how to turn a buck at the expense of millions of women in America. As awareness of this common practice has grown, an increasing string of horrifying stories of individual women and their families who’ve been denied insurance because of their wombs has contributed to the dialogue. Among the most recent examples is Chris Turner, a health insurance agent from Tampa Florida who is a rape survivor.

9. SEIU’s Andy Stern Named in Top Ten Most Powerful People in Healthcare

AndyStern_podium.jpgThis year marked the fifth year in a row SEIU President Andy Stern was named to Modern Healthcare‘s annual listing of the ‘Top 100′ most influential “movers and shakers in healthcare”. SEIU will fight in Conference Committee in the coming weeks to make care more affordable by not taxing American families who pay “Cadillac costs” for mediocre benefits; increase tax credits to make healthcare more affordable for working families; strengthen employer responsibility; and press for more health insurance reforms.”

10. Hard-fought wins in new contract for for 95,000 California state workers

SEIULocal1000_rally_CABudgetcuts_Schwarzenegger.jpgIn a state with skyrocketing home foreclosures and levels of joblessness that exceed 10 percent, California’s budget woes sometimes seem endless. Right around the time Gov. Schwarzenegger announced the elimination of up to 20,000 state jobs, we brought you news of the tentative contract agreement SEIU Local 1000 secured, covering and protecting the jobs of 95,000 California state workers.

One last note regarding this ‘top 10′ list: Three of the top 10 posts center on our incredibly successful “domestic violence is not a pre-existing condition” campaign, which helped draw quite a lot of much-needed attention to women’s health issues and how insurance companies routinely take advantage of women. (Check out online actions here, here, here and here). And the efforts paid off–the health insurance reform legislation before Congress will make practices like “gender rating” and “pre-existing conditions” illegal, once for all.

Subscribe to SEIU’s Blog RSS feed here, and look for many more great posts from us in 2010!

*This post originally appeared in SEIU Blog on December 30, 2009. Reprinted with permission from the author.

About the Author: Kate Thomas is a blogger, web producer and new media coordinator at the Service Employees International Union (SEIU), a labor union with 2.1 million members in the healthcare, public and property service sectors. Kate’s passions include the progressive movement, the many wonders of the Internet and her job working for an organization that is helping to improve the lives of workers and fight for meaningful health care and labor law reform. Prior to working at SEIU, Katie worked for the American Medical Student Association (AMSA) as a communications/public relations coordinator and editor of AMSA’s newsletter appearing in The New Physician magazine.

Mentors Training Next Generation of Union Leaders

Wednesday, December 30th, 2009

When Royetta Sanford retired as director of the Electrical Workers (IBEW) Human Services Department, she did not stop working to improve the lives of working people. Instead, she has begun to train the next generation of union leaders.

Sanford has volunteered to share her knowledge and experience to mentor Carrie Meyers-Herron, a recipient of the Union Leaders of the Future Scholarship.

Says Sanford:

I’m mentoring because I feel it is one of the only ways we can move forward getting women and minorities in the mainstream of the labor movement.

This is a great, well-organized program with some real bright talent, a lot of people with capacity to be good leaders. I want to give back to the movement and do whatever I can to make it stronger and more diverse.

Royetta Sanford, left, is mentoring future union leader Carrie Meyers-Herron, right.

Royetta Sanford, left, is mentoring future union leader Carrie Meyers-Herron, right.

The future leaders scholarship helps active union members who are women or people of color gain skills and knowledge to move into union leadership. Providing annual rewards of up to $3,000, the scholarship program is sponsored by the Union Plus Education Foundation, an arm of Union Privilege.

Meyers-Herron, a member of AFT Local 2665 in Palatine Bridge, N.Y., and president of the Galway (N.Y.) Central School District’s teachers association, says:

It’s nice to be hooked up with a mentor who has done union work for so long. She reassures me.

Meyers-Herron, who met Sanford for the first time in September, hopes to take master’s level courses in labor relations. She will stay in contact with Sanford monthly on balancing tasks and getting her perspective on issues facing teachers in a time of tightening budgets.

Sanford is one of 12 experienced union leaders who agreed to mentor the scholarship winners.

The others are:

  • Transport Workers President James Little.
  • MaryBe McMillan, secretary-treasurer of the North Carolina State AFL-CIO.
  • Christine Trujillo, president, New Mexico AFT
  • Sharon Cornu, executive secretary-treasurer, Alameda (Calif.) Labor Council.
  • RaeLene Brown, secretary-treasurer of the Stanislaus-Tuolumne Central Labor Council in Modesto, Calif.
  • Davida Russell, president, AFSCME Local 744 in Cleveland Heights, Ohio.
  • Connie Cordovilla of the AFT Human Rights and Community Relations Department.
  • David Carpio of the AFL-CIO Political Department.
  • Mary Finger, retired vice president of the United Food and Commercial Workers (UFCW).
  • May Ying Chen, retired vice president of Workers United.
  • Greg Hamblet, retired vice president of UFCW.

Since 1992, Union Plus has awarded more than $2.8 million in scholarships. This year 13 unionists representing 10 unions received more than $33,000 in scholarships.

*This post originally appeared in AFL-CIO Blog on December 30, 2009. Reprinted with permission from the author.

About the Author: James Parks had his first encounter with unions at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He has also been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections. Author photo by Joe Kekeris

Sexual Harassment Victim Wins Important Appeal In Second Circuit

Tuesday, December 29th, 2009

When Do Discussions About Sexual Harassment At Work Constitute Reporting Which Requires Investigation?

This case addresses an issue in sexual harassment cases that comes up often in real life experience but is not often the central issue of an opinion from a federal court of appeals.

It has to do with reporting of sexual harassment when a victim talks about the harassment with others at work — but doesn’t file a formal complaint. Does the conversation constitute a complaint which requires an investigation?

The case also addresses discussions at work about sexual harassment where the victim says: “don’t tell anyone. What’s an employer to do?

The new case –  Duch v. Jakubek from the United States Court of Appeals for the Second Circuit — addresses these common but thorny issues.

Here’s what happened in the case:

The Harassment

Karen Duch was employed as a court officer by the New York Unified Court System and was assigned to the Midtown Community Court “(MDC) in August of 1999.

In May of 2001, Brian Kohn began working at MCA as a court officer along with Duch. Several months later Kohn and Duch had a consensual sexual encounter at Duch’s apartment. The encounter did not involve sexual intercourse.  

Duch told Kohn the next day that she had made a mistake and did not want to pursue any further relations with him.

After the encounter, and until January 2002, Kohn made a series of sexual advances towards Duch and continued to harass her with unwanted physical contact, sexually graphic language, and physical gestures.

In the months that followed Duch became seriously ill with depression. She stopped eating and began avoiding work. She became suicidal and eventually left the job.

The Reporting

Duch told three people about the harassment:

1. Edward Jakubek : The Highest Ranking Court Officer at MCC

    In October of 2001, when Duch learned that she was scheduled to work alone with Kohn on an upcoming Saturday she approached Jakubeck and asked for the day off. She didn’t tell him why she wanted the change.

    Later that day, Jakubek called Duch in her office and told her that he heard she wanted to change her schedule to avoid working with Kohn. He also told her that he had talked to Kohn and asked him directly why Duch didn’t want to work with him.

    Kohn responded to Jakubek by saying, “well, maybe I did something wrong or said something that I should not have.”

    Jaubek told Kohn to “cut it out and grow up.” He then asked Duch if she had a problem with Kohn. According to the testimony, Duch became emotional and after gaining her composure said, “I can’t talk about it.”

    Jakubek replied, “that’s  good because I don’t want to know what happened,” and then laughed.

    Jakubek offered to change Duch’s schedule so she would not have to work alone at night with Kohn, and thereafter did not schedule her to work alone with him.

    2. Rosemary Christiano: The EEO Liaison

      Later in October 2001, Duch told Christiano about Kohn’s harassment. When asked “are you speaking to me as a friend or as an EEO Liaison, Duch responded “I think I am telling you as a friend”.

      When Chritsiano asked Duch whether she wanted her to report Kohn’s behavior, Duch said “absolutely not.” Christiano did not report the harassment to anyone.

      3. David Joseph: Chrisitano’s Replacement As EEO Liaison

      In December of 2001, David Joseph replaced Christiano as the EEO Liaison. Within days, Duch informed him that she wanted to file a formal complaint about Kohn’s conduct.

      An investigation was conducted, and disciplinary charges were brought against Kohn. Duch refused to be cross-examined claiming that she was medically unfit to testify.

      All charges were eventually dropped against Kohn. Duch stopped working at the court in 2002 and filed a lawsuit in 2004.

      The Lower Court’s Opinion

      Duch filed a sexual harassment lawsuit pursuant to Title VII of the Civil Rights Act of 1964 and the statutory laws of the state of New York and New York City.

      The Defendants requested that Duch’s claims be dismissed as a matter of law and the federal District Court agreed holding that:

      • OCA provided a reasonable avenue of complaint
      • no reasonable fact-finder could conclude that the employer-defendants had actual or contsrtructive knowledge of the alleged harassment
      • even assuming the employer defendants did know or should have known about the harassment, their response was reasonable

      Duch filed an appeal to the Second Circuit Court of Appeals.

      Sexual Harassment Law

      The law of sexual harassment is a bit complicated.

      In short, in order to prove a hostile environment sexual harassment claim Duch was required to establish that:

      • the harassment was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment and
      • there was a specific basis for imputing the conduct creating the hostile work environment to the employer

      Proving the harassment was not the problem – Duch could provide that proof with her testimony.

      The thorny issue in this case turned on whether Duch could impute the conduct that created the hostile work environment to her employer – and that depended on who did the harassing and who knew about it.

      When the harassment of an employee is done by an officer, owner, or manager the company will in most circumstances be automatically liable for the illegal conduct.

      When the harassment is that of a co-worker, the employer is not automatically liable. In a co-worker harassment case like this one, Duch was required to have proof that her employer:

      • knew about the harassment or
      • in the exercise of reasonable care should have known about the harassment  and
      • failed to act promptly to stop it

      The District Court found that Duch failed to properly report Kohn’s harassment and as a result her employer was not liable.  Duch appealed.

      The Court of Appeals Decision

      The Second Circuit Court of Appeals reversed and in its opinion gave us some helpful guidance on what does and does not constitute sufficient reporting by a victim of harassment for purposes of imposing employer liability.

      Conversations With Christiano

      Because Christiano was a co-worker without supervisory authority, her knowledge could only be imputed to her employer if:

      • she had an official duty to act, and whether in light of her knowledge
      • her response was unreasonable

      There was no dispute that Christiano knew about Kohn’s harassment.  Duch however told Christiano “absolutely not “  to tell Jukabek about it.

      The Court found that Christiano acted reasonably in honoring Jukabek’s request. In so doing, the Court acknowledged:

      [T]here is certainly a point at which harassment becomes so severe that a reasonable employee simply cannot stand by, even if requested to do so by a terrified employee.

      In this case, however, the Court sided with the defense. It did so because it concluded that:

      • there was no evidence that Christiano was aware of the psychological toll that Kohn’s harassment was allegedly inflicting on Duch
      • therefore the jury could not conclude that Christiano breached a duty to Duch and
      • the defendant employer could not be liable because of Christiano’s inaction

      Conversations With Jakubek

      The evidence involving Jukabek caused the Court to reach a different conclusion than it did with Christiano and reversed the district court.

      That’s because Jukabek was Kohn’s supervisor, and as such, “was charged with a duty to act on the knowledge and stop the harassment.”

      As the Court stated:

      Where the person who gained notice of the harassment was the supervisor of the harasser (e.g. had the authority to hire, fire, discipline, or transfer him, knowledge will be imputed to the employer on the ground that the employer vested in the supervisor.

      The Court held that there was sufficient evidence from which the jury could find that Jakubek knew, or should have known about the harassment including proof that Jakubek:

      • knew that Duch asked for a change in her work schedule when she was scheduled to work alone with Kohn
      • asked Kohn about it, and Kohn admitted that he did or said something “he should not have”
      • knew that Kohn had engaged in sex-related misconduct toward females in the past
      • told Kohn, in reference to his conduct towards Duch, to “cut it out and grow up”
      • knew that the subject of working with Kohn caused Duch to become emotional , teary and red, and lose her composure
      • said “good”, when Duch said she didn’t want to talk about it, because “I don’t want to know what happened
      • agreed to change Duch’s schedule so that she didn’t have to work with Kohn alone

      Based on the above, according to the Court, Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment, and encourage (rather than discourage) her to reveal the full extent and nature of the harassment.

      The Court wrote:

      In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees.

      We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem – as Jakubek is alleged to have displayed —will not shield an employer from liability under Title VII.

      Accordingly, notwithstanding the District Court’s observation that Jakubek ‘was never told of, and did not witness, the alleged harassment,’ we hold that a reasonable jury could conclude that Jakubek knew, or in the exercise of reasonable care should have known about the harassment.

      The Adequacy Of The Response

      According to the District Court, even if the employer knew about the harassment, the response was reasonable. The Court of Appeals disagreed:

      Although Jakubek did adjust the schedule so that Duch and Kohn would not be working together without other court officers on duty, Kohn’s harassment persisted and escalated during the months that followed.

      A formal investigation of Kohn was not commenced until January 2002, after Duch informed another co-worker of the harassment and three months after the date upon which a jury could find that Jakubek first learned of the harassment.

      Under these circumstances, we cannot say as a matter of law, that defendants’ response was ‘effectively remedial and prompt.’

      Lessons To Be Learned

      It’s very common for victims of harassment to be fearful of reporting the harassment. It’s also common for an employee to confide in a co-employee, or supervisor, without making a formal complaint and to say,  “don’t tell anyone.

      What we learn in this case is that those informal and non-specific conversations can trigger an employer’s obligation  to investigate and take appropriate action to stop the harassment.

      We also learn that those conversations may not satisfy an employee’s obligation to report harassment — and that of this very much depends on what level of authority the person has who hears what the victim has to say and how much the victim reveals.

      This case provides lots of valuable legal analysis in some gray area of sexual harassment law which have been infrequently addressed in the past.

      In my opinion, it’s an important and useful decision for all employers, victims of harassment, and all practitioners of employment law.

      images:  thestar.com

      www.hush-collection.com

      About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

      *prior results do not guarantee a similar outcome

      Talking Health Care Over the Holidays

      Monday, December 28th, 2009

      This holiday season, many of you will discuss health care with loved ones.

      That’s because health care is a family issue. Families struggle together, we care for one another when we’re sick, and we face down financial hardship as one.

      After a near-catastrophic economic downturn, Americans everywhere face tough choices on where to spend their money. After paying for utilities, car insurance, housing and food, there’s not always enough to afford medicine, doctor visits or dental exams.

      Did you hear a story from a family member about health care? Or perhaps you have a story of your own. Send it to your members of Congress.

      Members of Congress use personal stories from constituents to decide their votes and illustrate why certain provisions are important. Despite the health bills passing the House and the Senate, Congress will be required to vote one last time on the bill that comes out of conference. Join us in sharing your story and helping us push for the strongest bill possible.

      *This post originally appeared in SEIU Blog on December 28, 2009. Reprinted with permission from the author.

      Firing Because Of Bankruptcy Is Illegal

      Wednesday, December 23rd, 2009

      Employee Terminated Because Of Bankruptcy Gets Right To Trial In Federal Court

      I must admit that I don’t ever remember seeing a case involving bankruptcy discrimination — so when I ran across a recent federal court case out of Florida on the subject, it struck me as one well worth talking about.

      The case,  Myers v. TooJay’s Management Corporation, is important because there are so few cases on the topic and because bankruptcy affects so many people. The case also highlights some flaws in the statute which could really use a Congressional fix.

      What Happened In The Case

      Plaintiff Eric Myers filed for Chapter 7 bankruptcy in January of 2008. Around the same time, Myers moved his family to Florida to live with his parents. His debts were fully discharged in May of 2008.

      At some point, Myers heard about an opening at one of Defendant TooJay’s restaurants in Sumter County, Florida for a management position.  He called the company contact, Tom Thornton, about the position. Thornton interviewed Myers and the interview went well.

      Myers was then scheduled for a two day on the job evaluation which was held at on July 31st and August 1st. During those two days, for which he was paid,  Myers shadowed various employees.became familiar with restaurant procedures.

      At the end of the second day, Thornton told Myers that he had performed well and according to Myers, offered him a job.  He was told that he was supposed to start work on August 18, 2008 at a salary of between $50,000 and $55,000 for a 40 hour week.

      Thornton contended that he never told Myers he was officially hired, never discussed hours, salary, or a start date.

      Thornton contended  he told Myers that any offer of employment was contingent on a background check.

      There was no dispute that Thornton photocopied Myers’ drivers license and social security card and had Myers complete and sign several employment forms including :

      • an IRS withholding W-4 form
      • an order form for TooJay’s uniform and shoes
      • a food employee reporting agreement
      • an assistant manger trade secret non-disclosure agreement
      • an I-9 employment eligibility verification form.

      Thornton also gave Myers a copy of TooJay’s employee handbook and sexual harassment policy, and directed Myers to sign forms indicating that he received copies. On each form, Myers signed in the blank listed for “employee signature.

      Myers was also asked to sign a document which permitted TooJay to conduct a background check and consumer credit report check.

      After that, Myers notified his then employer that he was resigning so that he could start at TooJay’s.

      A little more than a week later, Myers received a letter from TooJay’s stating that it was rescinding its previous offer of employment because of the credit report. He called the Vice President of Human Resources and was told that he was not hired because he had filed for bankruptcy and that TooJay’s, as a matter of corporate policy, did not hire individuals who had a bankruptcy on their credit report.

      Myers went back to his prior employer and asked for his job back but it was too late. His work hours had already been distributed to other employees, and he was told that he could only be rehired at a reduced schedule.

      According to Myers no one told him that his employment at TooJay’s was contingent on a satisfactory credit report.

      Myers filed a complaint in the United States District Court in Florida claiming bankruptcy discrimination in violation of 11 U.S.C s. 525(b).

      Issues In The Case

      The defendant TooJay filed a motion for summary judgment asking that the case be thrown out on the grounds that:

      • the statute only applied to discrimination after an employee was hired
      • the statute did not prohibit bankruptcy discrimination with respect to hiring decisions
      • Myers was never hired so the statute did not apply

      Myers argued that:

      • the statue applied to hiring decisions in which an employer refused to hire an individual because of bankruptcy
      • the statute applied because Myers had been offered employment,
      • he accepted the offer and was terminated because of the bankruptcy
      The Court’s Decision

      The Failure To Hire Claim

      The Court analyzed Section 525 of the Bankruptcy Code which protects individuals from discrimination. 

      For whatever reason, there are two different standards in these bankruptcy discriminaion statutes– one for governmental employees [s.525(a)] and one for private employees [s.525 (b)] – and they are different.

      The language of the statute regarding governmental employees states that the government :

      [M]ay not . .. deny employment to, terminate the employment of, or discriminate with respect to employment against a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act or another person with whom such bankrupt has been associated . . .

      Section 525 (b) was enacted several years later. It applies to private employers. Peculiarly, while the topic is the same, the language is different. It states that:

      No private employer may terminate the employment of, or discriminate with respect to employment against an individual who is or has been a debtor under this title, a debtor or bankrupt under the bankruptcy Act, or an individual associated with such debtor or bankrupt,….

      As the statutory language set forth above indicates, the section pertaining to government employees prohibits an employer from “denying employment” to a person because of bankruptcy.

      The section pertaining to private employers does not contain a similar provision.

      Therefore, according to the Court,  the section which applies to private employees only prohibits discrimination because of bankruptcy to those already employed.

      If Congress intended a different result, the Court reasoned, it would have chosen different words in the statute. (as the opinion points out, only one court has reached a contrary result)

      As the opinion states:

      Thus by its plain language, the statute does not provide a cause of action against private employers for persons who are denied employment due to their bankrupt status….

      In the absence of strong indicia of a contrary congressional intent, [a court should ] conclude that Congress provided precisely the remedies it considered appropriate.

      Summary judgment was granted for the defendant TooJay on Myers discriminatory hiring claim.

      The Termination Claim

      Both parties agreed that terminating an individual’s employment because of bankruptcy status violates 11 U.S.C.s. 525(b).

      Meyers argued that an employment relationship with TooJay’s was created on July 31 and August, 1, 2008.  When TooJay rescinded its offer of employment, Meyers claimed, it fired him solely because of his prior bankruptcy in violation of the statute.

      TooJay contended that an employment relationship was never created.

      The Court found that based on the evidence presented,  the jury could determine that an employment relationship was created.  Important to the Court was proof that:

      • Thornton made Myers an unconditional offer of employment
      • The parties finalized all key employment terms, such as start date, hours of operation,job duties,and salary
      • Myers signed numerous employee-related forms and received a copy of the handbook
      • Myers  actually worked for TooJay’s for two day.

      On the other hand, as the Court pointed out TooJay presented evidence through Thornton’s testimony that:

      • Myers was never employed by TooJay’s and that
      • only a conditional offer of employment was made — contingent on a clean background and credit check.

      Based on the record and the “material facts in dispute” TooJay’s motion for summary judgment was denied.  Meyers won his right to have a jury hear his claim.

      Conclusion

      It’s important for all employers to know that it’s illegal to terminate an individual because of an individual’s bankruptcy status.

      Hiring decisions are more problematic. Government employers can’t refuse to hire a candidate because of bankruptcy. Private employers, according to most courts, are not covered by the bankruptcy statute with respect to offers of employment.  This makes no sense.

      In light of today’s economy, with so many Americans sadly having to declare bankruptcy, these statues should be reconciled so that they are consistent.

      All employers should be prohibited from discriminating against individuals due to bankruptcy with respect to all aspects of employment. Congress should amend the language of S. 525(b) so that private employers can’t refuse to hire someone because of bankruptcy.

      After all, aren’t these the folks who desperately need to work and earn some income? Isn’t this why we have bankruptcy discrimination laws?

      image: newzar.files.wordpress.com

      www.floridabeerfestivals.com

      *This post originally appeared in Employee Rights Post on December 15, 2009. Reprinted with permission from the author.

      About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

      *prior results do not guarantee a similar outcome

      New Report: Working Caregivers as a Protected Class?

      Tuesday, December 22nd, 2009

      Finding a manageable work/life balance is something many of us struggle with a great deal–and the stakes only get higher for Americans who work full-time and have caregiving responsibilities at home. Whether that means taking care of children, a sick partner, or an elderly loved one, holding down an ambitious career while still taking good care of those that depend on you at home can be a daunting challenge.

      While I’d like to be able to tell you that employers are universally understanding of their employees that struggle with juggling a full-time job while being a caregiver, we all know this simply isn’t true. As if layoffs due to our ailing economy weren’t bad enough, employers discriminating against employees based on their caregiving responsibilities is on the rise–and it has a name: Family Responsibilities Discrimination (FRD).

      Before you stop reading this post because you’re thinking “such a wonky-sounding term can’t possibly affect me,” I beg you to take another few moments and keep on reading. Family Responsibilities Discrimination can occur in any number of unfortunate–but very real–workplace circumstances. Such as….

      • when a new mother is denied a promotion NOT based on her job performance, but because it is assumed she will no longer be as committed to work once baby enters the picture.
      • when a man’s employer refuses him paternity leave because “his wife should do it”
      • when a worker is fired for not meeting work goals while he is on legally protected family and medical leave to take care of a sick parent.

      A new report by the Center for WorkLife Law’s Stephanie Bornstein & Robert J. Rathmell provides us with information about additional worker protections under local laws about which most people are not aware–like the ones described above. Take this true situation cited in the report, for example:

      In Chicago, a single mother of two who filed a complaint for parental status discrimination under the city’s local ordinance was recently awarded over $300,000 in damages. The woman had been fired from her job as a medical services salesperson after rescheduling a meeting because her daughter was ill.

      The report finds that while no federal law and only a few state laws expressly prohibit discrimination against working caregivers, at least 63 local governments in 22 states do. The findings also demonstrate that while the scope of local laws may seem limited, their impact can be pretty significant.

      Working caregivers shouldn’t end up unemployed because of their responsibilities at home–but the fact is that they sometimes do. While we may not be able to legislate employer attitudes, we can take responsibility for knowing our rights. Read the report here: “Entitled Caregivers as a Protected Class?: The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination.”

      For more information about each local law collected in the survey, visit www.worklifelaw.org/pubs/LocalFRDLawsDetail.html.

      Additional findings of the report can be found after the break.

      • The sizes and types of employers (whether public or private) covered by local FRD laws vary, but most apply to private employers, with some covering businesses as small as those with only one employee.
      • While the vast majority of states have no explicit protections against FRD, laws or regulations in Alaska, Connecticut, New Jersey, and the District of Columbia are the exceptions to the rule.
      • States including Florida, Maryland, Michigan, Oregon, and Pennsylvania have the most protections under local FRD laws, increasing the likelihood that a business or an employee in that state may be covered.

      Local governments that have explicitly banned Family Responsibilities Discrimination also include:

      • Tucson, Arizona • Atlanta, Georgia • Cook County, Chicago & Champaign, Illinois • Boston, Cambridge & Medford, Massachusetts • St. Paul, Minnesota • Kansas City, Missouri • Tacoma, Washington • Milwaukee, Wisconsin

      *This post originally appeared in the SEIU Blog on December 17, 2009. Reprinted with permission from the author.

      About the Author: Kate Thomas is a blogger, web producer and new media coordinator at the Service Employees International Union (SEIU), a labor union with 2.1 million members in the healthcare, public and property service sectors. Kate’s passions include the progressive movement, the many wonders of the Internet and her job working for an organization that is helping to improve the lives of workers and fight for meaningful health care and labor law reform. Prior to working at SEIU, Katie worked for the American Medical Student Association (AMSA) as a communications/public relations coordinator and editor of AMSA’s newsletter appearing in The New Physician magazine.

      The Good Looking Advantage at Work

      Monday, December 21st, 2009

      Image: Bob RosnerStudies show that good looking people have an easier time at work.

      I still laugh when I remember the Daily Show’s segment on John Roberts Supreme Court hearings, entitled, “Judge Cutie” (with the same logo as Judge Judy). And that wasn’t the only press coverage that included a reference to the fact that Roberts was good looking.

      And here I thought that the only candidates for high office who were selected on the “babe” factor were John Edwards, Dan Quayle and Sarah Palin. Before you jump to the conclusion that this workplace blog has been hijacked by a political commentary, studies show that good looks don’t only resonate in Vice Presidents and Supreme Court Justices; they also carry a great deal of weight back at work.

      According to an article in the USA Today (a newspaper, by the way, well known for its appearance) male CEO’s were, on average, 3 inches taller than the average man. Another study found that an increase in a woman’s body mass resulted in a decrease in her family income and job prestige. And finally more than 20% of very overweight employees have low morale, double the average for employees with healthy weights.

      Will the tyranny of the pretty ever end? The good looking people called the shots in high school and it looks like they’re still calling ‘em all these years later.

      I decided that rather than complaining and criticizing people who are good looking, I would interview a bunch of attractive people to get their take on this issue (it’s a tough job and I decided to make this sacrifice for you, dear reader). What I learned was fascinating. Every good looking person I talked to admitted that there were many times in their lives that they had stuff handed to them. But they also described times where their ideas weren’t taken seriously or where there was retribution simply because of their looks.

      These conversations were a revelation to this average-looking blogster. I knew from personal experience that not-pretty people suffered because of their appearance. I was fascinated to discover that pretty people also experience rejection for—yes, you guessed it—their looks.

      So I’m making a plea. Let’s all move past high school and start to judge people for the content of their character and for the quality of their ideas. People Magazine’s best looking people issue may be a fun read—but it’s an ugly way to do business.

      With A Third of Workers at Risk of Job Losses, Progressives Launch New Drive For More Aid (VIDEO)

      Friday, December 18th, 2009

      Image: Art LevineWith heavy defections from Blue Dog Democrats, the House of Representatives still narrowly passed Wednesday evening 217 to 212 a $154 billion jobs package. It included funds for states to retain front-line workers, aid to the unemployed and transportation projects.

      But a jobs bill has yet to be voted on in the Senate, where it’s likely to be viewed more skeptically and reduced in scope in the absence of a major grass-roots campaign. Political activism becomes even more urgent, because a combination of continuing high unemployment and the transitioning of people in and out of jobs could mean that as many as a third of the workforce could be unemployed or undermployed in 2010, according to Lawrence Mishel, director of the Economic Policy Institute.

      That’s why a potentially powerful 60-group liberal coalition, Jobs For America Now!, announced earlier Wednesday, becomes especially important. Its leaders are proposing a far more ambitious $400 billion proposal, based in part on plans put forward in the last several weeks by the AFL-CIO and other progressive and civil-rights organizations.

      (The full story of the progressive drive for jobs creation can be read here at Truthout.org.)

      There’s no doubt that they face an uphill battle to get ambitious jobs legislation through Congress. There was, after all, that close vote yesterday in the House, right-wing propaganda about the failings of the first $787 billion stimulus (it actually saved or created up to 1.6 million jobs), and the spread of an aggressive “deficit hawk” mentality to conservative Democrats.

      Even so, Thea Lee, the deputy chief of staff of the AFL-CIO, outlined the themes unifying the organizations: “Across the country, working Americans are calling for urgent action on the jobs crisis, and this action must be on a scale to match the crisis. We must also focus on fundamentally transforming our economy so we never face this type of crisis again — reforming our labor laws, our trade policy, and our financial system to restore needed balance.”

      During the debate over the jobs bill, House Speaker Nancy Pelosi (D-CA) declared on the House floor, “This legislation brings jobs to Main Street by increasing credit for small businesses, rebuilding the infrastructure of America, and keeping police and fireman and teachers on the job. As we create jobs for Americans, we are doing so in a fiscally responsible way. These investments are fully paid for by redirecting TARP funds from Wall Street to Main Street.”

      With every single Republican voting no, she defiantly pointed out how far the American economy had come under the Obama administration even as joblessness is still rampant. “There were 740,000 jobs lost in the first month of this year compared to 11,000 last month. We’re on the road to recovery…We’re creating jobs for Main Street, not just wealth for Wall Street,” she said. “This legislation creates jobs, helps meet the needs of those who are unemployed, and puts us America back on a path to prosperity.”

      Action can’t come too soon, and our obstructionist legislators would do well to listen to the plight of the unemployed as powerfully described in James McMurtry’s song, “We Can’t Make It Here.” Even though it was written during the Bush era, it’s all too applicable now:

      The groups and leaders featured in the press conference call Wednesday before the vote were almost a Who’s Who of American Liberalism. They included the Campaign for America ‘s Future; Anna Burger, the chair of Change to Win;, the veteran organizer Alan Charney of the grass-roots advocacy group,US Action, and the coalition’s interim director; Benjamin Todd Jealous, the NAACP President;and Wider Opportunities for Women. The importance of the coalition goes beyond the specifics of their proposals to their commitment to provide grass-roots muscle in all 50 states to push for jobs legislation in the tough struggle ahead, especially in the Senate. And that’s what’s been missing before on this issue: united activism around jobs which could, potentially, have more diverse grass-roots support in 2010 than health care reform did this year.

      The importance of the new coalition was underscored by an aide to Rep. Bobby Rush (D-Ill), who co-chairs the bipartisan Jobs Now! Congerssional caucus. The aide told Truthout: “These are the A-List groups. If that coalition steps up to the plate, they’ll bring plenty of resource capacity: polling, lobbying, putting pressure on the usual suspects.” Right now, though, the staffer observed, “Clearly everyone’s focused on pushing health care across the finish line, and that’s not even done. After that, everyone will be talking about jobs, jobs, jobs — at least until November.”

      So, despite the narrow vote on Wednesday, there’s some realistic hope that a combination of continuing unemployment, grass-roots organizing and political necessity could push through meaningful jobs legislation — and the Pelosi-backed bill is considered a very good start.

      After Wednesday’s vote, union leader Anna Burger declared:

      Our jobs crisis cannot be solved by one bill alone. But today the House demonstrated the bold and swift leadership the American people demand. It’s time to provide relief to the millions of workers who get up each morning and scour the help wanted ads in the hopes of finding a good job that can support a family. Congress today made an essential first step to invest in programs to immediately put people back to work…

      But our work is far from over. Our leaders must continue to work non-stop to pass a comprehensive jobs agenda that puts millions of Americans back to work today and makes strategic investments to create the jobs that Americans will need in the future.

      The biggest differences between the House-passed measure and the progressive-backed proposals are the sheer amount of spending and the absence in the current House bill of public sector job creation targeting hard-hit communities. As described by the coalition, this jobs-creation provision — which could create one million new jobs with $40 billion in federal funding, according to Rep. Keith Ellison (D–Minn.) — is a vital one. The group’s call to action describes its importance:

      We can directly create jobs that put people to work helping communities meet pressing needs, including in distressed communities facing severe unemployment. These initiatives must be designed so they maintain existing wage and benefit standards and do not displace existing jobs or simply exchange one group of unemployed workers for another.

      The urgent call to action is often at odds, though, with the pragmatic, even cynical, calculations of conservaDems who are worried that big deficit spending could be a potent Republican issue in their home states that trumps joblessness.

      Compare the different perspectives. First, here’s what’s at stake for American workers, as described by the Jobs Now! coalition:

      An Urgent Call for Action to Stem the U.S. Jobs Crisis

      The U.S. unemployment rate exceeded 10% in October for the first time in a quarter century. Over 15 million Americans are able and willing to work but cannot find a job. More than one out of every three unemployed workers has been out of a job for more than six months. The situation facing African American and Latino workers is even bleaker, with unemployment at 15.6% and 12.7%, respectively.

      These grim statistics don’t capture the full extent of the hardship. There are another 9 million people working part time because they cannot find full-time work. Millions of others have given up looking for a job, and so aren’t counted in the official unemployment figures. Altogether, over 17% of the labor force is underemployed–more than 26 million Americans–including one in four minority workers. Last, given individuals moving in and out of jobs, we can expect a third of the workforce, and 40% of workers of color, to be unemployed or underemployed at some point over the next year. (emphasis added.)

      Despite an effective and bold recovery package we are still facing a prolonged period of high unemployment. Two years from now, absent further action, we are likely to have unemployment at 8% or more, a higher rate than that attained even at the worst point of the last two downturns.

      Joblessness on this scale creates enormous social and economic problems–and denies millions of families the ability to meet even their most basic needs. .

      Then take a look at the political machinations among Democrats who feel themselves to be vulnerable politically, along with some retiring members who feel they can vote their conscience on behalf of a jobs package. Here’s how The Hill reported their current thinking:

      The close votes reflect the growing unease among centrist Democrats that the deficit spending that Congress has undertaken to right the economy is becoming a potent campaign issue.

      “We’ve got to indicate we’re serious about the deficit,” said Rep. Gerry Connolly (D-Va.), who voted “no” and represents a Republican-leaning district with low unemployment. “We didn’t cause the deficit, but we have to address it.”

      Rep. Brian Baird (D-Wash.), who is retiring from Congress, changed his vote to put Democrats over the top. That signals a potent variable in vote counting next year — retirees who no longer need to respond to traditional political pressures…

      Political analysts are closely watching for more centrist retirements. Those members will have no fear of losing committee assignments and can’t be won over with promises of campaign help or other inducements…

      But Democrats facing tough re-election fights found themselves trying to determine if voters are angrier about 10 percent unemployment or trillions in deficits.

      “My staff is looking at it,” said a newly elected Democratic member from a conservative district as the clock ticked down. “If I can’t make a good case that a lot of money is coming back to my district, I can’t support it. I wish we had more time.”

      He voted “no.”

      Compare that political calculation with the fear and anxiety gripping America’s unemployed, with half of them reporting depression, panic and heavy borrowing from friends. The New York Times reported this week:

      Poll Reveals Trauma of Joblessness in U.S.

      More than half of the nation’s unemployed workers have borrowed money from friends or relatives since losing their jobs. An equal number have cut back on doctor visits or medical treatments because they are out of work.

      Almost half have suffered from depression or anxiety. About 4 in 10 parents have noticed behavioral changes in their children that they attribute to their difficulties in finding work.

      It doesn’t seem that many members of Congress fully understand yet the havoc that’s been let loose in the land because of widespread unemployment. Meanwhile, posturing over ideology continues. They all might benefit if they could listen with open hearts to the plight of those without work in their districts and states, as aptly depicted in the song, “We Can’t Make It Here,” written by James McMurty during the Bush era, even before the meltdown, and unfortunately, it still applies today.

      Who is listening to them now?

      *This article originally appeared in The Huffington Post on December 17, 2009. Reprinted with permission from the author.

      About the Author Art Levine is a contributing editor of The Washington Monthly, and a former Fellow with the Progressive Policy Insititute. He has also written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate, Salon and numerous other publications. He is the author of 2005′s PPI report, Parity-Plus: A Third Way Approach to Fix America’s Mental Health System, and is currently researching a book on mental health issues. Levine also posts commentary at Art Levine Confidential

      Franken's Anti-Rape Amendment Survives

      Thursday, December 17th, 2009

      Image: Sam SteinAn amendment that would prevent the government from working with contractors who deny victims of sexual assault the right to bring their case in court has survived attempts to dull its impact and seems poised to become law.

      The Senate Committee on Appropriation passed, on Tuesday, a defense appropriations bill that included the “anti-rape” amendment introduced by Sen. Al Franken (D-Minn.). The legislation was intended to address and prevent a recurrence of the assault and rape that Jamie Leigh Jones, a defense contractor for the company KBR, alleged was committed by her fellow employees. But the amendment became a subject of debate after the Department of Defense, Republicans in the Senate, and even the committee chairman, Sen. Dan Inouye (D-Hawaii) raised concerns that it would leave contractors over exposed to lawsuits.

      Photo: Huffington Post

      Photo: Huffington Post

      The final product, in the end, proved remarkably strong. According to a Franken aide, the substance of the language “is unchanged.” Under the amendment the government would not be able to do business with companies that deny court hearings for victims of either assault, false imprisonment, intentional infliction of emotional distress or negligent hiring practice. The controversial Title VII provision, which would allow victims of assault to sue the employers of the alleged perpetrator and not just the perpetrator himself or herself, remains in the bill. Meanwhile, the threshold at which companies will be subjected to the legislation is set at those who have contracts totaling $1 million or more.

      All told, the legislation would affect all major and many minor contractors, forcing them to choose between allowing litigation for their employees or forfeiting the hundreds of millions in dollars that are doled out annually in contracts by the federal government.

      The Franken amendment includes a national security waiver, meaning that the Department of Defense could circumvent the law if it is deemed dangerous to U.S. safety. But, for that to happen, the Secretary of Defense would have to “personally explain why the waiver was used to Congress and at that point make it public,” the Franken aide explained.

      “I came to Washington to stand up for folks like Jamie Leigh, and stand up to the powerful interests that too often silence their voices,” Sen. Franken said in a statement. “I was gratified to see so many of my colleagues in Congress and so many national civil rights leaders join in this effort. The Jamie Leigh Jones amendment is on its way to becoming law thanks to their work, the work of Chairman Inouye, and the work of the White House. I’m pleased that together, we were able to find a solution that allows victims of assault and discrimination their rightful day in court.”

      The amendment was initially added to the defense appropriations bill on October 21, 2009 by a 68 to 30 vote. Despite wide support for the measure (and ridicule for the 30 Republicans who opposed it) both the Obama administration’s Department of Defense and Chairman Inouye raised concerns while the legislation was being considered in conference committee. Attempts to strip it of the Title VII provision were met with public outcry, which a Senate source familiar with the negotiations says was partially responsible for its ultimate passage.

      “The public support surprised a lot of senators and not just the chairman,” said the source. “The White House was working with Franken’s office to find language that would be enforceable… and I think by the time those talks began everyone was on board, including Chairman Inouye.”

      *This article was originally published in the Huffington Post on December 16, 2009. Reprinted with permission from the author.

      About the Author: Sam Stein is a Political Reporter at the Huffington Post, based in Washington, D.C. Previously he has worked for Newsweek magazine, the New York Daily News and the investigative journalism group Center for Public Integrity. He has a masters from the Columbia University Graduate School of Journalism and is a graduate of Dartmouth College. Sam can be reached at stein@huffingtonpost.com.

      Companies That Care About Workers' Rights: Apply Now to be Named a 2010 Top Small Company Workplace

      Thursday, December 17th, 2009

      Inc. magazine and the nonprofit I work for, Winning Workplaces, have partnered to find and recognize exemplary workplaces; those that motivate, engage and reward people. A model workplace can offer a critical competitive edge, ultimately retaining employees and boosting the bottom line.

      Together, Inc. and Winning Workplaces will identify and honor those benchmark small and mid-sized businesses that offer truly innovative, supportive environments, thus achieving significant, sustainable business results.

      “Growing, privately held companies have always excelled at competing based on the people they employ,” states Jane Berentson, Editor of Inc. magazine. “Their innate ability to innovate is woven throughout their cultures, including the way they manage and motivate their employees. Inc.’s partnership with Winning Workplaces is a great opportunity to fully recognize private company excellence in supporting their human capital.”

      Click to apply for Top Small Company Workplaces 2010“Winning Workplaces is thrilled to partner with Inc. as we honor truly exemplary organizations who have created workplaces that are better for people; better for business; and better for society,” said Gaye van den Hombergh, President, Winning Workplaces. “These organizations are an inspiration to business leaders looking for ways to leverage their people practices to create more profitable and sustainable companies.”

      The application process is open through January 22, 2010. To apply, go to tsw.winningworkplaces.org. The Top Small Company Workplaces will be announced in a special issue of Inc., which will be available on newsstands June 8, 2010, and on Inc.com in June. An awards ceremony, honoring the finalists and winners, will be held at the national Inc. On Leadership Conference in October 2010.

      About Inc. magazine
      Founded in 1979 and acquired in 2005 by Mansueto Ventures, Inc. magazine (www.inc.com) is the only major business magazine dedicated exclusively to owners and managers of growing private companies that delivers real solutions for today’s innovative company builders. With a total paid circulation of 724,110, Inc. provides hands-on tools and market-tested strategies for managing people, finances, sales, marketing and technology.

      About Winning Workplaces
      Winning Workplaces (www.winningworkplaces.org) is an Evanston, IL-based not-for-profit, whose mission is to help the leaders of small and mid-sized organizations create great workplaces. Founded in 2001, Winning Workplaces serves as a clearinghouse of information on workplace best practices, provides seminars and workshops on workplace-related topics and inspires and awards top workplaces through its annual Top Small Company Workplaces initiative.

      About the Author: Mark Harbeke ensures that content on Winning Workplaces’ website is up-to-date, accurate and engaging. He also writes and edits their monthly e-newsletter, Ideas, and provides graphic design and marketing support. His experience includes serving as editorial assistant for Meredith Corporation’s Midwest Living magazine title, publications editor for Visionation, Ltd., and proofreader for the National Association of Boards of Pharmacy. Mark holds a bachelor’s degree in journalism from Drake University. Winning Workplaces is a not-for-profit providing consulting, training and information to help small and midsize organizations create great workplaces. Too often, the information and resources needed to create a high-performance workplace are out of reach for all but the largest organizations. Winning Workplaces is changing that by offering employers affordable consulting, training and information.

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