Outten & Golden: Empowering Employees in the Workplace

Archive for April, 2010

Employee Has Privacy Interest In E-Mail Communications To Attorney On Company Computer

Thursday, April 15th, 2010

Employee’s E-Mails To Lawyer On Company Laptop Are Off Limits

The decision by the Supreme Court of New Jersey in Stengart v. Loving Care Agency has a lot  of lawyers talking. The case has to do with the privacy interests of an employee’s personal e-mail on a company computer and the attorney-client privilege.

The reason the case made ripples through the employment law community is because there simply aren’t many decisions on the issue and it hits a topic of real practical concern for both employers and employees.

What Happened In The Case

Marina Stengart worked for Loving Care Agency, Inc. (“Loving Care”), a home health care agency, as an Executive Director of Nursing.  Like many employers, Loving Care provided Stengart a laptop computer for company business. Stengart could send e-mails using her company e-mail account from the laptop and she could also access the Internet through Loving Care’s server.

In December of 2007, Stengart used her computer to access a personal, password-protected e-mail account on Yahoo’s website to communicate with an attorney about her situation at work. She never saved her Yahoo ID or password on the company laptop.

When she sent the personal e-mails Stengart didn’t know  that Loving Care’s browser software automatically saved a copy of each web page she viewed on the computer’s hard drive in a “cache” folder of temporary Internet files.

Stengart left Loving Care and returned the laptop computer.  A couple of months later, she filed a lawsuit with claims of discrimination, harassment and retaliation.

After the lawsuit was filed, Loving Care hired experts to create a forensic image of the laptop’s hard drive. Among the items retrieved were the e-mails Stengart exchanged with her lawyer via the personal Yahoo account.

Loving Care’s lawyers used the e-mails in the lawsuit. Stengart’s lawyers demanded that the e-mails be identified and returned. Loving Care’s Lawyers argued that Stengart had no expectation of privacy in light of the company’s electronic communications policy which stated in part:

  • Loving Care may review, access, and disclose all matters on the company’s media systems and services at any time
  • e-mails, Internet communications and computer files are the company’s business records and are not to be considered private or personal to any individual employee
  • occasional personal use of the computer is permitted

Stengart’s lawyers asked the trial court to order a return of the e-mails and disqualification of  Loving Care’s lawyers. The judge denied the request, concluding that Stengart waived the attorney client privilege by sending e-mails on the company computer.

Stenagart appealed.The Court of Appeals reversed.

It  found that Stengart had an expectation of privacy in the e-mails and that Loving Care’s lawyers violated the disciplinary rules by failing to alert Stengart’s lawyers that they had the e-mails before they read them.

It sent the case back to the trial court to determine whether disqualification of the firm, or some other sanction was appropriate. Loving Care appealed

The New Jersey Supreme Court Opinion

The Supreme Court of New Jersey agreed with Stengart and affirmed the Court of Appeals decision. In a long and thoughtful opinion, it framed the issue this way:

This case presents novel questions about the extent to which an employee can expect privacy and confidentiality  in personal e-mails with her attorney, which she accessed on a computer belonging to her employer.

Loving Care argued that its employees have no expectation of privacy in their use of company computers based on the company’s policy. It also contended that attorney client privilege either never attached or was waived.

Stengart argued that:

  1. she intended the e-mails with her lawyer to be confidential
  2. the company policy, even if it applied to her, failed to provide adequate warning that Loving Care would monitor the contents of e-mail sent from a personal account or save them on a hard drive
  3. when the lawyers encountered the e-mails, they should have been immediately returned

The Court found favor of Stengart.  In sum, this is what it held:

  • Under the circumstances, Stengart could reasonably expect that the e-mail communications with her lawyer through her personal, password protected, web-based e-mail account would remain private
  • Sending and receiving e-mails through the company laptop did not eliminate the attorney-client privilege that protected them
  • By using a personal e-mail account and not saving the password, Stengart had a subjective expectation of privacy
  • Her expectation of privacy was also objectively reasonable in light of the ambiguous language of the policy and the attorney-client nature of the communication
  • Stengart took reasonable steps to keep the messages confidential and did not know that Loving Care cold read communications sent on her Yahoo account

Regarding the company policy the Court wrote:

The Policy did not give Stengart, or a reasonable person in her position, cause to anticipate that Loving Care would be peering over her shoulder as she opened e-mails from her lawyer on her personal, password-protected Yahoo account.

None of this means that companies are prohibited from monitoring the use of workplace computers. As the Court stated:

Our conclusion that Stengart had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers.

Companies can adopt and enforce lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies…..

But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.

The Court also found that the defense lawyers should have promptly notified Stengart’s lawyers when they discovered the nature of the e-mails. It sent the case back to the trial court judge to determine whether the firm should be disqualified, costs should be imposed, or whether some other remedy was appropriate.

Take Away

I represent employees, and many communicate with me by e-mail. I am always concerned that somehow these e-mails are going to be read by their employers – so this case is very good news because it clearly states that these communications are privileged and protected.

Management lawyers who get these e-mails are prohibited from reading them, must return them, and can be disqualified or sanctioned if they don’t.

Having said that, employees should still be extremely careful if they don’t want their personal e-mails read by their employers —  which means that the best practice is not to use the company computer for personal e-mails or surfing the net.

As far as employers go,  you can bet (and others agree) that many are reviewing their policies and trying to figure out  and address the implications of this decision.

The bottom line is that employers do not have carte blanche to read employees’ private, confidential personal e-mails and even a very good corporate policy is not going to change that fact –at least  for now.

image: www.afcea.org

This post originally appeared in Employee Rights Post on April 13, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Court Blocks Hikes Sought by Massachusetts Health Insurance Corps.

Wednesday, April 14th, 2010

A Massachusetts court yesterday blocked premium increases—some as high as 40 percent—sought by six state health insurers. The action by the Suffolk Superior Court was the second time the insurance companies’ bid to boost rates was rejected. The state Division of Insurance rejected the rate hikes last month, calling them “excessive.”

The insurance companies then filed suit claiming the state has no authority to block the premium increases and sought an injunction to prevent the state from regulating premiums until the suit comes to trial. The judge rejected the request.

In an interview with the Boston Globe, Gov. Deval Patrick (D) praised the court’s decision.

Unless insurers can give us a good reason, when everything else is flat, that they deserve 20 percent, 30 percent and in some cases 40 percent increases, they’re going to be denied.

The judge said the Massachusetts companies must exhaust all their administrative appeals within the Insurance Division before the suit over the state’s ability to regulate premium costs can go forward.

The case is drawing national attention because, in 2006, Massachusetts passed a health care reform law that has several similar provisions to the recently enacted national health care reform law, including regulating premium increases.

In February, when Anthem Blue Cross in California announced it was raising premiums by as much as 39 percent, Secretary of Health and Human Services Kathleen Sebelius said, “Too many Americans are at the whim of private, for-profit insurance companies.”

Anthem Blue Cross’ parent company, WellPoint, posted $4.9 billion in profits in 2009. Sebelius said health insurance companies like WellPoint “are raking in billions in profits each year, while policyholders struggle to make ends meet in this tough economy.” In a letter to Anthem President Leslie Margolin, she demanded the company provide justification for the increases.

The extraordinary increases are up to 15 times faster than inflation. Your company’s strong financial position makes these rate increases even more difficult to understand.

Following public outcry, the company agreed to postpone the rate hikes until May, pending a review by an outside actuary appointed by the state insurance commissioner.

*This article originally appeared in AFL-CIO on April 13, 2010. Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. I came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When my collar was still blue, I carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. I’ve also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen me at one of several hundred Grateful Dead shows. I was the one with longhair and the tie-dye. Still have the shirts, lost the hair.

Senate Ends Republican Filibuster Against Jobless Benefits

Tuesday, April 13th, 2010

Image: Mike HallEach day while Congress was on its two-week spring break, some 30,000 long-term jobless workers ran out of unemployment insurance (UI) benefits because of Republican Sen. Tom Coburn (Okla.), who blocked a vote to extend UI benefits.

Yesterday, the Senate’s first day back from vacation—and with more than 400,000 workers now out of benefits—Coburn was at it again, taking to the Senate floor to continue the filibuster against helping the jobless.

But by a 60-34 vote, the Senate told him to shut up and voted to end his endless diatribe against workers who are desperate for work. Coburn was joined by 33 other Republican senators who voted to continue the filibuster and block extension of UI and COBRA, which helps jobless workers pay for health insurance. Four Republicans and all 56 Democrats who were present voted for cloture. Six senators did not vote.

The UI filibuster is just the latest example of Republican filibuster abuse. It was the 50th time this Congress, the “just-say-no” Republicans, has tried to talk legislation or nominations to death.

The cloture vote means the Senate will now be allowed to vote on a short-term, 30-day extension, probably Thursday.

AFL-CIO President Richard Trumka calls the delay “shameful” and says Congress needs to get down to the business of a long-term UI extension.

It is shameful that such a simple and humane step took so long to implement and that Republican senators tried to win political points by jeopardizing the lifeline of hundreds of thousands of working families.

Congress should act soon to extend these benefits for a full year, so working families don’t face Republican obstruction and uncertainty every single month. The House and Senate should move quickly to reconcile their competing bills.

More than two in every five unemployed workers in this country have been unemployed for more than six months. And the situation is getting worse. The number of long-term unemployed (those jobless for 27 weeks and over) increased by 414,000 in March to 6.5 million. In March, 44.1 percent of unemployed persons were jobless for 27 weeks or more.

*This post originally appeared in AFL-CIO blog on April 13, 2010. Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. I came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When my collar was still blue, I carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. I’ve also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen me at one of several hundred Grateful Dead shows. I was the one with longhair and the tie-dye. Still have the shirts, lost the hair.

Tech’s New Frontier

Tuesday, April 13th, 2010

Image: Bob RosnerFlash mob. I was faintly aware of the concept. Mostly it had to do with pillow fights and Michael Jackson tributes. Then on Saturday I stumbled upon one. It left me remarkably hopefully. Really. And there is even a business point here, but first more on the mob.

My daughter Frankie and I were walking across the Seattle Center grounds. We suddenly noticed that there were hundreds of people milling about. You just got the sense that something was in the air. So we wandered over. The energy was palpable.

There seemed to be a focal point, at one end of the park. We decided to check it out. Suddenly, out of nowhere, a gymnast started doing cartwheels and forward rolls across the field. It was incredibly dramatic.

Then approximately thirty dancers started dancing to the song “Don’t Stop Believing.” Clearly there were two star-crossed lovers. When the woman leaped into the man’s arms the crowd exploded in joy.

Now is when the really freaky part starts. Hundreds of people started dancing to the music. It felt like every aerobics class that I’ve ever seen, that everyone else was privy to dance routines and that I hadn’t gotten the memo.

Remember, I had no idea what was going on. It was like a Broadway show suddenly burst upon us. Amazing, intoxicating, but most of all very fun.

Later I learned that this was called Flash Mob Seattle. That there were videos online that taught the dance moves and that the core group of dancers that started off the festivities had gone to a rehearsal. But that didn’t diminish the remarkable energy from the young kids, old people and everyone in between.

What does this have to do with work? I saw the power of our technology not to isolate people, but to bring them together. In a remarkable way.

Tools are tools. But I felt a sense of community in that gathering that I’ve hardly ever felt in my life.

Here is a link to another gathering that happened on the same day. Unfortunately you miss the initial gymnast, but you’ll get the rest of the performance (there is an ad at the beginning of it, but it’s for the local paper not me). http://seattletimes.nwsource.com/flatpages/video/mediacenterbc3.html?bctid=77243206001

Community, the amazing thing, once you get a taste of it you just want more and more. At least I do. It got me thinking about all the ways that people have to communicate, to collaborate and to create community. Here’s to an amazing new set of possibilities.

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. Also check out his newly revised best-seller “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Why Working People Are Angry and Why Politicians Should Listen

Friday, April 9th, 2010

Remarks by AFL-CIO President Richard L. Trumka at the Institute of Politics, Harvard Kennedy School

View a video of the speech here.

Good evening.  Thank you, John.  I will never be able to express how much I owe you and how much the American labor movement owes you.  The Institute of Politics is fortunate to have you as a fellow this semester.  And let me add my thanks to the Institute of Politics and Bill Purcell for inviting me to be here with you tonight.

I am going to talk tonight about anger—and specifically the anger of working people.  I want to explain why working people are right to be mad about what has happened to our economy and our country, and then I want to talk about why there is a difference between anger and hatred.  There are forces in our country that are working hard to convert justifiable anger about an economy that only seems to work for a few of us into racist and homophobic hate and violence directed at our President and heroes like Congressman John Lewis.  Most of all, those forces of hate seek to divide working people – to turn our anger against each other.

So I also want to talk to you tonight about what I believe is the only way to fight the forces of hatred—with a strong progressive tradition that includes working people in action, organizing unions and organizing to elect public officials committed to bold action to address economic suffering.  That progressive tradition has drawn its strength from an alliance of the poor and the middle class—everyone who works for a living.

But the alliance between working people and public minded intellectuals is also crucial—it is all about standing up to entrenched economic power and the complacency of the affluent.  It’s an alliance that depends on intellectuals being critics, and not the servants, of economic privilege.

I am here tonight at the Kennedy School of Government to say that if you care about defending our country against the apostles of hate, you need to be part of the fight to rebuild a sustainable, high wage economy built on good jobs – the kind of economy that can only exist when working men and women have a real voice on the job.

Our republic must offer working people something other than the dead-end choice between the failed agenda of greed and the voices of hate and division and violence.  Public intellectuals have a responsibility to offer a better way.

The stakes could not be higher.  Mass unemployment and growing inequality threaten our democracy.  We need to act—and act boldly—to strike at the roots of working people’s anger and shut down the forces of hatred and racism.

We have to begin the conversation by talking about jobs—the 11 million missing jobs behind our unemployment rate of 9.7 percent.

Now, you may think to yourself, that is so retro.  Jobs are so twentieth century.  Sweat is for gyms, not workplaces.

For a generation, our intellectual culture has suggested that in the new global age, work is something someone else does.  Someone we never met far away in an export processing zone will make our clothes, immigrants with no rights in our political process or workplaces will cook our food and clean our clothes.

And for the lucky top 10 percent of our society, that has been the reality of globalization—everything got cheaper and easier.

But for the rest of the country, economic reality has been something entirely different.  It has meant trying to hold on to a good job in a grim game of musical chairs where every time the music stopped, there were fewer good jobs and more people trying to get and keep one.  Over the last decade, we lost more than 5 million manufacturing jobs—a million of them professional and design jobs.  We lost 20 percent of our aerospace manufacturing jobs.  We’re losing high-tech jobs—the jobs we were supposed to keep.

For most of us, economic reality has meant trying to pay for the ever-more-expensive education needed to pursue a good job—the cost of a college degree has gone up more than 24 percent since 2000 while average wages and salaries have increased less than one percent.  It has meant trying to pay for exorbitant health care as employer coverage went away or got hollowed out.  It has meant trying to eke out a decent retirement even as the private sector shed real pensions and long-term investment returns evaporated.  Meanwhile, Wall Street middlemen raked in the bonuses.

And that was the reality for most Americans before the Great Recession began in 2007.  Since then, we have lost 8 million jobs when the economy needed to add nearly three million just to keep up with population growth.  That’s 11 million missing jobs.

We used the public’s money to bail out the major banks, only to see those same banks return to the behavior that got us here in the first place—aggressive risk taking in securities and derivatives markets, and handing out gigantic bonuses.  Most galling of all—they used the funds we gave them —  courtesy of TARP and endless cheap credit from the Federal Reserve — to fight even the most modest, common sense reforms of our financial system.

President Obama’s economic recovery program has done a lot of good for working people—creating or saving more than 2 million jobs.  But the reality is that 2 million jobs is just 18 percent of the hole in our labor market.

The jobs hole – and the decades-long stagnation in real wages — are the source of the anger that echoes across our political landscape.  People are incensed by the government’s inability to halt massive job loss and declining living standards, on the one hand, and the comparative ease with which government led by both parties has made the world safe again for JP Morgan, Goldman Sachs and Citigroup, on the other hand.

Rescuing the big banks hasn’t done much for Main Street.  The very same financial institutions that got bailed out have not only cut way back on lending to business, they have never stopped foreclosing on American families’ homes.

The fact is that for a generation we have built our economy on a lie—that we can have a low-wage, high-consumption society and paper over the contradiction with cheap credit funded by our foreign trading partners and financial sector profits made by taking a cut of the flow of cheap credit.

So now a lot of Americans are angry.  And we should be angry.  And just as we have seen throughout history, there are plenty of purveyors of hate and division looking to profit from our hurt and our anger.

I am a student of history, and now is the time to remember our history as a nation.  Remember that when President Franklin Roosevelt said, “We have nothing to fear but fear itself,” other voices were on the radio, voices saying that what we really needed to fear was each other – voices preaching anti-Semitism and Nazi-style racial hatred.

Remember that when President John F. Kennedy stepped off the plane in Dallas on November 22, 1963, radio voices were calling for violence against the President of the United States.  And the violence came—and took John and Robert Kennedy and Martin Luther King and Medgar Evers and so many others.

But in the United States, we chose to turn away from the voices of hatred at those critical moments in the twentieth century.  In much of Europe, racial hatred and political violence prevailed in response to the mass unemployment of the Great Depression.  And in the end, we had to rescue those countries from fascism– from the horrible consequences of the failure of their societies to speak to the pain and anger bred by mass unemployment.

Why did our democracy endure through the Great Depression?  Because working people discovered it was possible to elect leaders who would fight for them and not for the financial barons who had brought on the catastrophe.  Because our politics offered a real choice besides greed and hatred.  Because our leaders inspired the confidence to reject hate and charted a path to higher ground through broadly shared prosperity.

This is a similar moment.  Our politics have been dominated by greed and the forces of money for a generation.  Now, amid the wreckage that came from that experiment, we hear the voices of hatred, of racism and homophobia.

At this moment of economic pain and anger, political intellectuals face a great choice—whether to be servants or critics of economic privilege.  And I think this is an important point to make here at Harvard.  The economic elites at JP Morgan Chase, Goldman Sachs and the other big Wall Street banks are happy to hire intellectual servants wherever they can find them.  But the stronger the alliance between intellectuals and economic elites, the more the forces of hatred—of anti-intellectualism—will grow.  If you want to fight the forces of hatred, you have to help empower the forces of righteous anger.

And at this moment, the labor movement is working to give voice to the justified anger of the American people.  We need help.  We need public intellectuals who will help design the policies that will replace the bubble economy with a real, sustainable economy that works for all of us.

Working people want an American economy that creates good jobs, where wealth is fairly shared, and where the economic life of our nation is about solving big problems like the threat of climate change rather than creating big problems like the foreclosure crisis.  We know that growing inequality undermines our ability to grow as a nation by squandering the talents and the contributions of our people and consigning entire communities to stagnation and failure.  But despite our best efforts, we have endured a generation of stagnant wages and collapsing benefits—a generation where the labor movement has been much more about defense than about offense.

We in the labor movement have to challenge ourselves to make our institutions into a voice for all working people.  And we need to begin with jobs.  Eleven million missing jobs is not tolerable.   That’s why we are fighting for the AFL-CIO’s five point jobs program—extending unemployment benefits, including COBRA health benefits for unemployed workers; expanding federal infrastructure and green jobs investments; dramatically increasing federal aid to state and local governments facing fiscal disaster; creating jobs directly, especially in distressed communities; and finally, lending TARP money to small and medium sized businesses that can’t get credit because of the financial crisis.

As we meet tonight, organizers working for the AFL-CIO’s 3 million-member community affiliate Working America are knocking on doors across our country talking jobs.  We are organizing support for George Miller’s Local Jobs for America Act that would target $100 billion in job creation dollars toward our country’s hardest hit communities—to keep teachers in the classroom and first responders on the job, and to create new jobs where Wall Street destroyed them.  We are organizing support for financial reform and accountability for Wall Street.  We are working to counter the Glenn Beck effect and turn anger into action for real change.

But we are not just talking about how to create jobs, we are talking about how to pay for them. Wall Street should pay to clean up the mess they made, and we are supporting four ways for the big banks to pay—President Obama’s bank tax, a special tax on bank bonuses, closing the carried interest tax loophole for hedge funds and private equity, and most important, a financial speculation tax levied on all financial transactions—including derivatives—that would raise over $150 billion a year, according to the Congressional Budget Office.  The financial speculation tax would have negligible impact on long-term investors, but would discourage the short termism in the capital markets that led to so much destruction over the last decade.

When it comes to creating jobs, some in Washington say: Go slow—take half steps, don’t spend real money.  Those voices are harming millions of unemployed Americans and their families — and they are jeopardizing our economic recovery.  It is responsible to have a plan for paying for job creation over time.  But it is bad economics and suicidal politics not to aggressively address the job crisis at a time of stubbornly high unemployment.  In fact, budget deficits over the medium and long term will be worse if we allow the economy to slide into a long job stagnation — unemployed workers don’t pay taxes and they don’t go shopping; businesses without customers don’t hire workers, they don’t invest and they also don’t pay taxes.

But we must do much more to restore broadly shared prosperity.

We must take action to restore workers’ voices.  The systematic silencing of America’s workers by denying their freedom to form unions is at the heart of the disappearance of good jobs in America.  We must pass the Employee Free Choice Act so that workers can have the chance to turn bad jobs into good jobs, and so we can reduce the inequality which is undermining our country’s prospects for stable economic growth.

We must have an agenda for restoring American manufacturing—a combination of fair trade and currency policies, worker training, infrastructure investment and regional development policies targeted to help economically distressed areas.  We cannot be a prosperous middle class society in a dynamic global economy without a healthy manufacturing sector.

We must have an agenda to address the daily challenges workers face on the job – to ensure safe and healthy workplaces and family-friendly work rules.

And we need comprehensive reform of our immigration policy based on ending exploitation and securing fairness, working for an America where there are no second class workers.

Each of these initiatives should be rooted in a crucial alliance of the middle class and the poor—the majority of the American people.  And those of us in the labor movement know that we can only achieve these great things if we work together with community partners who share our goals, and with government leaders who share our vision.

Government that acted in the interests of the majority of Americans has produced our greatest achievements.  The New Deal.  The Great Society and the Civil Rights movement — Social Security, Medicare, the minimum wage and the forty-hour work week, and the Voting Rights Act.  This is what made the United States a beacon of hope in a confused and divided world.  In the end, I believe the health care bill signed into law last month is an achievement on this order, one we can continue to improve upon to secure health care for all.

But too many thought leaders have become the servants of a different kind of politics—a politics that sees middle-class Americans as overpaid and underworked.  That sees Social Security as a problem rather than the only piece of our retirement system that actually works.  A mentality that feels sorry for homeless people, but fails to see the connections between downsizing, outsourcing, inequality and homelessness.  A mentality that sees mass unemployment as something that will take care of itself, eventually.

We need to return to a different vision.

President Obama said in his inaugural address, “The state of the economy calls for action, bold and swift, and we will act — not only to create new jobs, but to lay a new foundation for growth.”  Now is the time to make good on these words – for Congress, for President Obama and for the American people.

These are big challenges.  But it is long past time to take them on.  If you are worried about the anger in our country, if you don’t want the forces of hatred to grow, be a part of the fight for economic justice and a new economic foundation for America.  Be a critic of power and privilege, not its servant.

Be the source of the ideas that can rebuild our economy and restore confidence in government.  As students, as teachers, as workers—all of us can play a role in this great effort.  Whether here within the university, at think tanks, in the government, in the press, or even working with us in the labor movement, working people need the help of engaged policy intellectuals if we are together going to build an economy that works for all.

Think about the great promise of America and the great legacy we have inherited.  Our wealth as a nation and our energy as a people can deliver, in the words of my predecessor Samuel Gompers, “more schoolhouses and less jails; more books and less arsenals; more learning and less vice; more leisure and less greed; more justice and less revenge; in fact, more of the opportunities to cultivate our better natures.”

That is the American future the labor movement is working for.  Let me be clear:  There is no excuse for racism and hatred.  All Americans need to unite against it.  The labor movement must be a powerful voice against it.  But you cannot fight hatred with greed.  Working people are angry—and we are right to be angry at the betrayal of our economic future.  Help us turn that anger into the energy to win a better country and a better world.

*This post originally appeared on the AFL-CIO website on April 7, 2010. Reprinted with permission.

About the Author: Richard L. Trumka was elected President of the AFL-CIO by acclamation at the Federation’s 26th convention in Pittsburgh, Pa. His election, following 15 years of service as the AFL-CIO’s Secretary Treasurer, capped Trumka’s rise to leadership of the nation’s largest labor federation from humble beginnings in the small coal mining communities of southwest Pennsylvania.

Peaceful Revolution: Champion Real Workplace Flexibility

Thursday, April 8th, 2010

Image: Netsy FiresteinThe White House Forum on Workplace Flexibility has generated an energetic buzz in work family advocacy circles across the nation. As a longtime advocate for family friendly workplaces, I am thrilled by First Lady Michelle Obama and President Barack Obama’s keen interest and commitment to build and promote flexible workplaces. I also commend the many businesses that are genuinely trying to create workplaces that reflect the current needs of America’s working families. But I am cautiously optimistic. For, I am also aware of the many “fake flex” policies that force workers to “flex” their lives to fit the job and not vice versa.

Workplace flexibility remains an elusive phenomenon in most American workplaces — the majority of such benefits are available only to the highly qualified and skilled professional workforce. And when flexible work arrangements are offered to service sector workers, they do little to address the workers’ needs but plenty for the company’s bottom-line. Creating a more “flexible” and cheaper workforce is a popular profit-making strategy of many large retail employers including big box chains like Walmart. In the name of flexibility, employers are capping wages, forcing full-time workers into part-time positions without benefits, and forcing them to work irregular and erratic work schedules, including working more nights and weekends. The demand that workers be available round the clock puts the company’s needs first and the needs of working families last. Such management-driven “fake flex” policies that penalize workers and give them little or no control give workplace flexibility a bad name.

As I see it, real workplace flexibility equals workers’ control over their job plus security. It is never forced on workers. It expands their choices by giving them the power to shape their work days, hours and schedules to achieve work family balance. A key task for the Obama Administration is to put existing flexible workplace policies through a sieve and champion only those policies that truly give workers control over their work time without risking their wages, benefits or job security.

We have made some advances in creating family friendly workplaces — but these have been worker by worker and workplace by workplace. For the most part, labor unions have been at the forefront of re-envisioning the workplace — the 8-hour work day, the weekend, safety standards, and important family friendly policies such as paid sick days, paid family leave and family health insurance (see Family-Friendly Workplaces: Do Unions Make a Difference?). In many industries, unions have regulated “flexibility” that is controlled by the employer and a burden on employees (see Real Flextime – Union Made). Any policy discussion on advancing workplace flexibility stands to gain from a strong union presence at the table.

Nearly 75 percent of all working adults in the United States have little or no control over their work schedules — lower paid workers (especially lower income women) have the least control. Arriving or leaving even a few minutes late can cost them their jobs. We continue to lag behind other developed nations in guaranteeing our workers important labor standards such as paid sick days and paid family leave. In his closing remarks at the Forum, President Obama said, “Caring for loved ones and raising the next generation is the single most important job we have.” It is indeed time we made this easier for our working families.

A Peaceful Revolution is a blog about innovative ideas to strengthen America’s families through public policies, business practices, and cultural change. Done in collaboration with MomsRising.org, read a new post here each week.

*This post originally appeared in The Huffington Post on April 5, 2010. Reprinted with permission.

About the Author: Netsy Firestein is founder and Executive Director of the Labor Project for Working Families, a national non-profit organization that educates and empowers unions to organize, bargain and advocate for family friendly workplaces. Ms. Firestein is recognized as a national expert on labor and work family issues. For over 25 years, Ms. Firestein has worked with the labor movement to ensure that work family issues are an integral part of labor’s organizing, bargaining and advocacy efforts.  Ms. Firestein has also helped forge important partnerships between labor and community groups to advocate for statewide and national work family policies.

Unpaid Internships

Wednesday, April 7th, 2010

No doubt following up on Charlie Sullivan’s post on unpaid law student internships, Steven Greenhouse at the New York Times has a story on the more general use of these internships.  It’s obviously been an issue for some time, but the bad economy has given employers more incentives to pinch pennies and made interns more desperate for experience, even the unpaid variety.  These internships can provide valuable experience and lead to a good job, but they can also undermine the purpose of wage laws and highlight class problems when only more wealth students can afford months of unpaid full-time work.  From the article:

With job openings scarce for young people, the number of unpaid internships has climbed in recent years, leading federal and state regulators to worry that more employers are illegally using such internships for free labor.

Convinced that many unpaid internships violate minimum wage laws, officials in Oregon, California and other states have begun investigations and fined employers. Last year, M. Patricia Smith, then New York’s labor commissioner, ordered investigations into several firms’ internships. Now, as the federal Labor Department’s top law enforcement official, she and the wage and hour division are stepping up enforcement nationwide.

Many regulators say that violations are widespread, but that it is unusually hard to mount a major enforcement effort because interns are often afraid to file complaints. Many fear they will become known as troublemakers in their chosen field, endangering their chances with a potential future employer.

The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships.

The story also notes the DOL’s criteria for legal, unpaid internships, including similarity to academic or vocational training; no displacement of regular, paid workers; and that the employer derive no immediate advantage from the intern.  That last one, in particular, seems hard to reach in a lot of cases.

Remember that you heard it here first.

*This post originally appeared in Workplace Prof Blog on April 4, 2010. Reprinted with permission.

About the Author: Professor Hirsch joined the University of Tennessee law faculty in August 2004 after working in the Appellate Court Branch of the National Labor Relations Board in Washington, D.C. and serving as a judicial clerk for the Honorable Haldane R. Mayer on the U.S. Court of Appeals for the Federal Circuit and the Honorable Robert R. Beezer on the U.S. Court of Appeals for the Ninth Circuit. His practice experience focused on labor and employment law and he currently writes and teaches in this area, as well as federal courts. He also regularly speaks on various aspects of labor and employment law.

It's Nothing New: Male Dominated Professions Foster Culture Of Sex Discrimination

Tuesday, April 6th, 2010

Bankers and Police Officers Charged With Gender Discrimination, Sexual Harassment and Retaliation

Two vastly different professions – banking and law enforcement – yet they share something in common and that is a culture of gender discrimination.

It’s the same stuff that’s been going on for decades in spite of federal laws which make sex discrimination, pregnancy discrimination, and sexual harassment illegal in the workplace. I have heard similar complaints from women for close to 30 years. That’s one of the reasons why I think it’s important to to spread the word about some courageous women  who are out there fighting for their rights.

Here are some of the cases that made the news.

Citigoup and Goldman Sachs Accused Of Discrimination Against Mothers

Two women filed gender discrimination cases against Wall Street banks claiming they were discriminated against after taking time off to have children.

According to ABC news, Charlotte Hanna, a former Golden Sachs VP in the HR department claimed that she was demoted and moved from her private office into a cubicle after the birth of her first child.

She was then fired while she was on maternity leave with her second child. Hanna was told that her position was eliminated, but leaned that another employee was hired to take over her duties.

Dorly Hazan-Amir complained about a long standing “boys club” culture at Citigroup’s asset finance division since the beginning of her employment. When she got pregnant, things got worse.

One manager asked whether she planned to be a “career mom” or “mom mom.” Another told her if she planned to continue working, she would have to put her career first and family second. Her pregnancy became the butt of office jokes.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Syracuse Police Officer Gets $400,000 Jury Award

Last month, a New York jury found in favor of Officer Katherine Lee on her claim of sex discrimination and retaliation against the Syracuse police department. It was the third significant verdict against the police department for discrimination, sexual harassment and retaliation of female officers in the last ten months.

Sgt. Therese Lore was awarded $500,000 by a jury in May, and Officer Sonia Dotson was awarded $450,000 last month.

Lee, a police officer for 14 years claimed she was repeatedly subjected to sexual harassment, and denied equal pay and promotions to her male counterparts.

Lee claimed that male officers frequently watched pornographic movies at the workplace and made sexually derogatory remarks about women. When she complained about male officers’ behavior, the department would conduct sham investigations, and then accuse her of misconduct for making those complaints.

A similar lawsuit was filed last week by Maj. Martha Helen Haire, a 22-year veteran of the LSU Police Department.

She sued the university claiming she was denied the position of chief of police, for which she was clearly qualified, because she is a woman.

Haire also claimed that she was harassed on account of her gender and “subjected to illegal retaliation/reprisal on account of her whistle-blowing activities consisting of protesting and opposing gender-based discrimination in the workplace.’”

Retaliation for complaining about discrimination and opposing discriminatory practices is illegal under Title VII.

It’s been decades since this kind of conduct has been declared illegal throughout the country yet sadly, the culture of discrimination and harassment in male dominated professions is awfully slow to change.

Images: corporette.com farm4.static.flickr.com

*This post originally appeared in Employee Rights Post on April 4, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

The Best Way to Support the Troops…

Monday, April 5th, 2010

Image: Bob RosnerSupport The Troops. Support The Troops. Support The Troops.

This is the newest “wallpaper” in the United States. You see it on bumper stickers, in commercials and hear it in conversations. Based on the number of times you see or hear the phrase, it’s hard to imagine that we could do anything more to show the troops that we’re behind them.

Think again.

According to the Bureau of Labor Statistics, nearly one-in-five veterans age 20 to 24 are unemployed. This is THREE times the national average. According to the government, approximately a quarter million veterans leave the military annually. So we’re talking about many thousands of soldiers who served their country and have returned to an unemployment line.

These unemployed former soldiers list a variety of reasons for the high unemployment rate, according to a poll by CareerBuilder—the lack of available jobs where they live, employers not understanding how the skills acquired in the military translate to the civilian world, the lack of a college degree and the inability of the soldiers themselves to adequately show what they learned in the military in interviews and resumes. Sure these veterans could probably do a better job of presenting themselves and their experience in the employment dance, but I believe that based on their sacrifice, it is incumbent for corporations to meet them more than half way.

A disclaimer: I have never served in the military. And it doesn’t take a lot of reading between the lines of my writing to see that I, like the majority of Americans, believe that enough people have died in Iraq and Afghanistan it’s time for us to get the heck out of there.

As much as I may disagree with our government’s staying in a place where we’re not wanted, I do think that our soldiers have tackled a really tough assignment and the vast majority have represented their uniform and country well. I’m not sure that I’d advocate that returning vets should get special treatment, but for the youngest of the returning soldiers to have three times the unemployment rate of non-vets is embarrassing. And wrong.

But it gets worse. According to the survey by CareerBuilder, eleven percent of veterans don’t identify themselves as veterans on their resume. While another seventeen percent do so selectively. Support the troops, NOT.

People who put themselves in harms way should be appreciated for their loyalty and sacrifice. To not appreciate their ability to work as part of a team, their disciplined approach to work, their problem solving skills, the ability to work under pressure, respect, integrity and leadership is overlooking the skills and talents that they’ve already proven on the battlefield. It’s time that employers looked beyond the limitations—the lack of a college degree, etc.—and to appreciate what these potentially talented and dedicated job candidates will bring to a corporation.

Support the troops by hiring them, it’s the least that we can all do.

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. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

White House Boosts ‘Flexible’ Workplace, As 15 Million Still Seek ANY Workplace

Friday, April 2nd, 2010

The White House on Wednesday took time out to promote the value of a flexible workplace that can accomodate two-paycheck families. With 15 million people officially unemployed, it made one nostalgic for a time before the recession, when people worried about the quality of their work lives rather than about just finding a job.

But allowing workers flexible schedules so they can balance their work and family lives isnt just a luxury that should be reserved for flush economic times. As Michelle Obama pointed out at the event that included business and family advocates, “So it’s something that many of the companies here today have discovered, very fortunately, that flexible policies actually make employees more, not less, productive.”

To underscore that point, the White House Council of Economic Advisers released a report that, the White House noted, “discusses the economic benefits of workplace flexibility—such as reduced absenteeism, lower turnover, improved health of workers, and increased productivity.”

Still, there might be a way to combine workplace flexibility with job creation — by adopting the proposal of Dean Baker and others to use unemployment insurance or other funds to help keep people on the job but working fewer hours.

Unfortunately, that sort of approach responding to the clamor for work didn’t get as much attention as innovative ways to promote flexible hours for employees so they can juggle personal and work obligations.  As the Huffington Post’s Dan Froomkin reported:

Two out of three American families are so-called “juggler families,” in which parents are forever trying to balance the needs of their job with the needs of their children.

But many workplaces — and government policies — are still stuck in the distant past, operating as if most families still had a single breadwinner, and someone else to mind the kids when they’re out of school, or the grandparents when they need care.

Once you realize that, there are a bunch of employer practices and policy proposals that suddenly make a lot of sense: Encouraging telecommuting, giving people time off for family emergencies, enabling flexible schedules, allowing employees to swap shifts, and so on…

As part of his push, Obama cited a new White House report which concludes that flexible workplace rules could increase productivity.

But he also cast the need for more humane workplaces in moral terms. “[U]ltimately, it reflects our priorities as a society — our belief that no matter what each of us does for a living, caring for our loved ones and raising the next generation is the single most important job that we have. I think it’s time we started making that job a little easier for folks,” he said.

Even so, feminists and others who have promoted these concepts for years are now sharpening their arguments about the need for making such reforms in hard times. As Ellen Galinsky, president of the Families and Work Institute pointed out, in advance of the conference:

We had a preview of the Forum last week in DC at the Work Life Conference, co-convened by the Families and Work Institute and The Conference Board. Speaking at the conference, Martha Coven of the White House Domestic Policy Council said that some might argue that employees are lucky just to have jobs, that companies have to focus on meeting their payrolls, and that the government needs to get the economy back on track and stabilizing it. They ask, “why workplace flexibility; why now?”

That is a false choice, she countered. Workplace flexibility is something that we have to do not only when times are good, but when times are bad. Workplace flexibility will help our businesses AND our families thrive.

While promoting “flexible workplaces” won’t do anything to stop the distorted GOP onslaught targeting Obama over jobs, he stood up for the imporance of the issue—and made clear its broader benefits.

“Workplace flexibility isn’t just a women’s issue. It’s an issue that affects the well-being of our families and the success of our businesses,” said  Obama. “It affects the strength of our economy – whether we’ll create the workplaces and jobs of the future that we need to compete in today’s global economy.”

As a White House press released noted, Obama has taken the issue seriously enough to place it alongside other intiatives that aim to level the playing field for women — and strengthen out economy by promoting full and fair participation in the workplace:

“Employers, including the federal government, will have to implement flexible work policies if they want to attract the best and the brightest,” said Valerie Jarrett, Senior Adviser to the President and Chair of the White House Council on Women and Girls. ” The President is committed to making sure that the federal government can compete for talent because he knows that good people produce better work, which in turn, leads to better service for the American people.”

*This post originally appeared in Working In These Times on April 1, 2010. Reprinted with permission.

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.

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