Outten & Golden: Empowering Employees in the Workplace

Archive for May, 2010

California Supreme Court Set To Address Workers’ Meal And Rest Break Rights

Thursday, May 27th, 2010

W-F BlogThe California Supreme Court is expected to render a decision in the Brinker v. Superior Court case later this year that will answer critical legal questions about the meal and rest break rights of hourly workers in California.  At issue in the case is when and under what circumstances workers are entitled under California law to rest and meal breaks.

Though the case was originally filed as a class action, and the appeal involved the trial court’s order granting class certification to a group of 5,500 restaurant workers, the Supreme Court’s decision will necessarily address questions that will have an impact on individual meal and rest break cases as well.  Commentators from across the political spectrum agree Brinker is one of the most important labor cases pending before the California Supreme Court today.

The case is important to workers because the Court of Appeal’s decision severely limited the rights of workers to obtain damages for missed meal and rest breaks.  The Court’s conclusions of law were broad-ranging and quite friendly to employers.  It held:

(1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

These conclusions, if adopted as state law by the Supreme Court, would effectively deny workers the right to use class actions to recover wages for missed meal and rest breaks in California.  Further, the adoption of these conclusions by California’s highest court would make it harder than ever before for individual workers to obtain relief for missed meal and rest breaks.

The restaurant workers have asked the Supreme Court to decide a number of key issues of law:

•    Does a California employer need to relieve employees of all duties so they can take meal and rest breaks or simply make them “available”?
•    Can the employer simply make meal and rest breaks available to their employees at any time during a shift, or must the rest and meal break be provided within a certain number of hours of beginning a work shift?
•    When and how frequently must an employer provide meal and rest breaks to its employees?
•    In wage and hour class action cases, can workers rely on statistical data to show a class-wide pattern of meal and rest break violations or are the factual issues always too individualized for class treatment?

The answers to these questions are of great interest to labor groups and business advocates alike, and battle lines were quickly drawn. A mere three days after the Court of Appeal issued its decision in Brinker, the California Labor Commissioner, under Republican Governor Arnold Schwarzenegger, issued a memorandum entitled “Binding Court Ruling on Meal and Rest Period Requirements” instructing all California Division of Labor Standards Enforcement (“DLSE”) employees to adopt the perspective laid out in the Brinker appellate decision.

The Labor Commissioner virtually ignored other California appellate decisions more favorable to workers’ rights, and instead relied on federal court decisions interpreting California’s meal and rest break laws.  In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 94, for example, California’s Third District Court of Appeal had decided that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty [for meal breaks].”

The Third District’s decision in Cicairos was directly supported by a prior interpretation of the law issued during Governor Gray Davis’s administration by the DLSE.

Almost immediately after the Labor Commissioner issued its binding memorandum, the California Labor Federation responded with biting criticism of Labor Commissioner Angela Bradstreet’s directive.  “The Federation is deeply concerned that your hasty publication of this unbalanced and flawed analysis will undermine California workers’ rights to meal and rest breaks.”

The Labor Commissioner has since withdrawn its binding memorandum, replacing it with one that still plainly sides with the Court of Appeal’s restrictive reading of workers’ meal and rest break rights.  The Schwarzenegger administration is clearly hopeful the Supreme Court will uphold the severe restrictions set out by the appellate court.

A decision in Brinker will have an immediate impact on pending lawsuits, particularly meal and rest break class actions.  Whether the Supreme Court ultimately backs the employer-friendly logic of the decision under review or adopts the worker protections set out in Cicairos, attorneys representing both employees and employers undoubtedly will have clearer guidance on the law.

Finally, many employee rights advocates are certain, or at least very hopeful, that the California Supreme Court’s decision will not result in a substantial impairment of an individual employee’s right to meal and rest breaks.  The larger and more immediate concern is that Brinker could seriously impair the ability of workers to sue their employer collectively for failing to provide appropriate meal and rest breaks.  If the Supreme Court makes it more difficult to sue on a class-wide basis for meal and rest break violations, most violations will go unchallenged in court.  Labor advocates are counting on the Supreme Court to render a decision that protects the rights of California workers to use the class action process to vindicate these important wage and hour rights.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California.  He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999.  According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

Cert Granted in AT&T Mobility v. Concepcion

Wednesday, May 26th, 2010

Image: Jean SternlightYesterday the Supreme Court granted certiorari in what could be an extremely important case addressing the intersection of mandatory arbitration and class actions.  AT & T Mobility v. Concepcion, 2010 WL 303962, Docked 09-893 (May 24, 2010) poses the following question:  “Whether the Federal Arbitration Act preempts States from conditioning the enforcement of an arbitration agreement on the availability of particular procedures — here, class-wide arbitration –  when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.”

The lawsuit, brought in the 9th Circuit, is a consumer class action contending that AT&T Mobility acted fraudulently when it offered a “free” phone to all who signed up for service, but then charged substantial sales tax ($30.22 for two phones to the named plaintiff) to each consumer.  When plaintiff sought to litigate the claim as a class action the defendant demanded individual arbitration, citing an arbitration clause that prohibited class actions.  Relying on California unconscionability law, specifically Discover Bank v. Superior Court, 113 P.3d 1100 (Cal. 2005) the District Court, 2008 WL 5216255, and Ninth Circuit, 584 F.3d 849 (9th Cir. 2009) both courts found the class action prohibition unconscionable.

AT&T Mobility’s cert petition recognizes that provisions in arbitration agreements can sometimes be held unconscionable, but argues that the decisions below are preempted because California courts are purportedly interpreting unconscionability law differently (and more strictly) when they review arbitral class action prohibitions than when they review other kinds of contracts.   In particular, the California Supreme Court’s Discover Bank decision states:

“when the [class] waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages. and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then, at least, . . . the waiver becomes in practice the exemption of the party from responsibility for its own fraud, or willful injury to the person or property of another.  Under these circumstances, such waivers are unconscionable under California law and should not be enforced.”

The Ninth Circuit states that this specific test is not a new rule applicable only to arbitration agreements but rather merely a “refinement” of the “general sliding-scale approach to unconscionability in the specific  context of class action waivers.”

The arbitration clause at issue in Concepcion is highly unusual, because it includes a provision stating that if the arbitrator awards the customer an amount greater than the phone company’s last written settlement offer made before selection of an arbitrator then the consumer is entitled to a premium payment of $7,500.  The company argues that this “premium” provision is sufficiently generous  that a class action is not necessary to allow individual claimants to enforce their rights, and that it was wrong in this context to hold a class action prohibition unconscionable.  The plaintiffs respond (and the Ninth Circuit found) that “the premium payment does not transform a $30.22 case into a predictable $7,500 case.”  Instead, finds the Ninth Circuit, “predictably AT&T will simply pay the face value of the claim before the selection of an arbitrator to avoid potentially paying $7,500.  Thus, the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22.”  Normally, finds the Ninth Circuit, a person “will not find it worth the time or the hassle to try to recover such a small amount, even if that person spends no money to hire an attorney or to invoke the arbitration process.”

It seems that the Concepcion case will require the Court to walk a difficult line.  If the majority of the Court want to find that California’s approach to unconscionability in this context is preempted  it will have to find a way to do that without purporting to wade too far into state law.  While it may be easy for the Court to say that unconscionability law can’t be applied more strictly to arbitration agreements than to other kinds of contracts, it may be hard for the Supreme Court or lower courts to apply that test in particular situations.

The case will also be interesting because it raises the issue of the purpose of class actions and litigation more generally.  Is the accepted purpose of plaintiffs’ class action only to reimburse plaintiff for the cost of the phone or is an accepted purpose also to help other similarly situated consumers or to deter the defendant or other companies from engaging in such fraudulent behavior in the future?  Is it appropriate to find a class action prohibition unconscionable because it harms persons other than the named plaintiffs or prevents deterrence, and not merely because it prevents the particular named plaintiffs from recovering their loss?  Note that class actions serve a notice function — helping present claims of persons who did not even know they had claims.  Is it appropriate (not preempted by the FAA)  to find that eliminating that aspect of class actions is unconscionable?

The case will be watched extremely closely by both sides of the class action/arbitration debate.  Probably no one believes that  all class action prohibitions are per se unconscionable.  Equally, while some companies might want to eliminate unconscionability arguments altogether in all likelihood Section 2 of the FAA ensures that some types of arbitration clauses can be unconscionable.  Thus,  the question the Court will try to answer is are class action waivers contained in arbitration clauses somehow immune from unconscionability challenges and, assuming they are not, how should courts decide whether such waivers are unconscionable.    A broad decision in favor of AT&T Mobility could  potentially allow companies in a variety of contexts to insulate themselves from class action exposure by including class action waivers in their arbitration clauses.   This would be a huge deal in the world of consumer litigation, as many consumer challenges are only brought through class actions.  Such a ruling could also affect employment cases, particularly wage and hour claims, which are typically presented in class actions.   This type of ruling could spark legislative action on the proposed Arbitration Fairness Act (which would prohibit mandatory arbitration in the consumer and employment settings).  Alternatively a narrower decision in favor of AT&T could open a floodgate of future litigation to determine whether a lower court had issued a permissible or impermissble decision holding that a particular class action waiver was unconscionable.  A ruling in favor of the plaintiffs would reinforce existing law in many jurisdictions which provides that arbitral class action prohibitions are at risk of being held unconscionable.

Stay tuned for another exciting arbitration decision from the Supreme Court!

*This post originally appeared in Indisputably.org on May 25, 2010. Reprinted with permission from the author.

About the Author: Jean R. Sternlight is the Michael and Sonja Saltman Professor of Law and also Director of the Saltman Center for Conflict Resolution at the University of Nevada-Las Vegas Boyd School of Law.  She teaches courses on dispute resolution, including both litigation and alternatives thereto.  Frequently cited by courts and the media, Sternlight is co-author of Mediation Theory and Practice 2d ed. (LEXIS 2006), Arbitration Law in America: A Critical Assessment (Cambridge Univ. Press 2006), and Dispute Resolution: Beyond the Adversarial Model (Aspen 2004).  She has published articles in numerous well-respected journals including Stanford Law Review, University of Pennsylvania Law Review, Journal of Law & Contemporary Problems, William & Mary Law Review, and The Ohio State Journal of Dispute Resolution.  Sternlight received her B.A. (High Honors) from Swarthmore College, and her J.D. (cum laude) from Harvard Law School.   After practicing law in Philadelphia for eight years she began her academic career at Florida State University College of Law.  She subsequently moved to the University of Missouri-Columbia and has been at the University of Nevada-Las Vegas since the summer of 2003.

Spirit Airlines Threatens to Close if Pilots Strike - and More Bargaining News

Tuesday, May 25th, 2010

10432_167322316152_101165966152_3855492_4504641_nSpirit Airlines is threatening to shut down if its 500 pilots strike, and more news from the “Bargaining Digest Weekly.” The AFL-CIO Collective Bargaining Department delivers daily, bargaining-related news and research resources to more than 1,200 subscribers. Union leaders can register for this service through our website, Bargaining@Work.

NEGOTIATIONS
ALPA, Spirit Airlines: Spirit Airlines is threatening to close its operations in Ft. Lauderdale, Fla., if its 500 pilots go on strike. The Air Line Pilots (ALPA) has said its members will strike at the end of a 30-day cooling-off period if they don’t get a fair contract.

Multiple, City of Los Angeles: The Los Angeles City Council last Monday passed a budget that calls for the layoff of 761 city workers, and 16 to 26 furlough days next year for other municipal workers. The City Council ignored the request of Mayor Anthony Villaraigosa to postpone the vote while negotiations continued with the Coalition of L.A. City Unions.

USW, Yokohama Tire Corp.: United Steelworkers (USW) Local 1023 reached a tentative four-year agreement with Yokohama Tire Corp. covering nearly 700 workers at a Salem, Va., plant. Details of the contract will not be released until USW members have had a chance to review it.

CSEA/AFSCME, Erie County: The Civil Service Employees Association/AFSCME Local 815 reached a tentative five-year agreement with Erie County in New York. The deal would provide workers with a 15 percent wage increase over the contract’s term but would create three tiers of workers in regard to retiree health care. The 4,200 members will vote on the deal in early June.

UFCW, Dr Pepper Snapple Group: Dr Pepper Snapple Group, parent company of Mott’s, has imposed wage and benefits cuts on 300 workers at a Mott’s plant in Williamson, N.Y. The members of Retail, Wholesale and Department Store Union/UFCW Local 220 authorized a strike last month, although one has not yet been called.

UFCW-ICWU: Leaders and members of International Chemical Workers Union/UFCW (ICWU/UFCW) Local 143-C are shocked and outraged with Pfizer’s decision to shut down a plant in Pearl River, N.Y. ICWU/UFCW says Pfizer gave no warning of the layoffs and that the work done by its 757 members in Pearl River will be shipped to Ireland, Belgium, Montreal and Puerto Rico.

SETTLEMENTS
USW, Pinnacle Airlines: Members of USW Local 736 ratified a new five-year contract with Pinnacle Airlines. The agreement covers nearly 950 ground workers and provides improvements to health care and pension benefits.

WORK STOPPAGES
USW, Vale Inco: The Ontario Labour Relations Board last week ordered USW and Vale Inco to resume talks aimed at ending the ongoing strike by 3,000 workers. The members of USW Local 6500 have been on strike since July 13 of last year.

Disclaimer: This information is being provided for your information only.  As it is compiled from published news reports, not from individual unions, we cannot vouch for either its completeness or accuracy; readers who desire further information should directly contact the union involved.

This post originally appeared in AFL-CIO blog on May 24, 2010. Reprinted with permission.

About the Author: Belinda Boyce. Before joining the AFL-CIO Collective Bargaining Department as research analyst, I worked for six years in the AFL-CIO Organizing Department: three years in Voice@Work and three years in the Center for Strategic Research, working on organizing, issue, and political campaigns. I attended Penn State University, where I became a rabid fan of Nittany Lion football, and later graduated from Florida State University College of Law.

Shouldn’t Everyone Have an Honorific?

Tuesday, May 25th, 2010

Image: Bob RosnerI like Doctors and Senators as much as the next guy. But I’m confused at why they are the only ones who consistently get their job title before their name (Dr. Welby and Senator Hillary, for example).

Read any newspaper or magazine and you’ll notice that the docs and politicos are the only group granted this courtesy. Nuclear physicists? No. Rocket scientists? Uh-uh. Teachers? You must be joking. And the funny thing is, I never hear anyone mention this. I can only assum this means that we’ve have we become conditioned to assume their professions are more important than others and warrant the special treatment of a printing their job titles.

Okay, I’m not jealous. And I’ve never tried to get anyone I know to call me “Columnist” Bob. But I’ve often wondered why a small group of people get their job title listed before their name even when they are far away from serving in any official capacity.

Let me anticipate the pro-honorific position—doctors have to go through a lot of school and politicians have to eat a lot of bad chicken dinners at fundraisers. Shouldn’t this sacrifice be acknowledged by all of us?

Then again, many lawyers, engineers and Ph.D.s in literature have a lot of schooling. And most public speakers have started down a lot of bad chicken dinners (that is a comment based on 25 years on the speaking circuit). Don’t the rest of us work hard too? By boosting a few professions, are we cheapening the efforts of the rest of us as we hold our nose to the grindstone at work week after week?

I was in a quandary on how to address this issue. Then the answer came to me in the form of an article in the New Yorker. The article talked about the form to sign up for Skywards, the frequent flyer program of Emirates (the international airline of the United Arab Emirates). When you list your name it gives you a drop down menu that goes way beyond—Mr., Mrs., Ms., Miss and Dr. Some would say too far.

Just a few of your choices are listed below:

Admiral, Air Comm, Air Marshall, Al-Hag (denoting a Muslim who has made a pilgrimage to Mecca) Archbishop, Archdeacon, Baron, Baroness, Colonel, Commander, Corporal, Count, Countess, Dame, Deacon, Deaconness, Deshamanya (a title conferred on eminent Sri Lankans), Dowager (for a British widow whose social status derives from that of her late husband, properly used in combination with a second honorific, such as Duchess), Duchess, Duke Earl, Father, Frau, General, Governor, HRH, Hon, Hon Lady, Hon Professor, JP, Judge, Khun, (the Thai all purpose honorific, used for both men and women), L Cpl., Lt, Lt Cmdr, Lt Col, Lt Gen, Midshipman, Mlle, Monsieur, Monsignor, Mother, Pastor, Petty Officer, Professor, Senor, Senora, Senorita, Sgt, Sgt Mjr, Shikha (for a female shikh, or sheikh), Sheikh, Shiman (an Indian honorific, for one blessed by Lakshmi, the Hindu goddess of wealth, wisdom, luck and other good things), Sister, Sqdn Ldr, Sqn Ldr, Sub Lt, Sultan, Swami, The Countess, The Dowager, The Dutchess, The Marquis, The Matron, the Rev Cannon, The Reverend, The Rt Hon, The Ven, The Very Revd, Ven, Ven Dr, Very Revd, Vice Admiral, Viscount, Viscountess along with Mr., Mrs. Ms. Miss and Dr.

After reading this article I worked hard to encourage all my friends to refer to me as Khun for the last week. Heck, one of my books was even published in Thailand. I love the idea of an all purpose honorific, but it didn’t stick.

As I went down this list I realized that it would be cumbersome and confusing for all of us to cart around an honorific. On the other hand, why honor only a few professions? Either let’s drop Doctors and Senators (preferably on their heads, maybe that would knock some sense into them) or let’s let everyone join in the fun. Feel free to use the list above as a starting point if you want to jump in the honorific pond head first.

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. You can also hear workplace911 on BlogTalkRadio weekly. If you have a question for Bob, contact him via bob@workplace911.com.

Survey: Small Business Owners Say Unions Good for Business

Wednesday, May 19th, 2010

Image: James ParksDespite U.S. Chamber of Commerce propaganda, the nation’s small business owners recognize the value of employees forming a union, according to a new survey by Americans Rights at Work (ARAW). The survey was released yesterday, the same day the Chamber opened its annual small business summit.

Some 80 percent of the small business owners and self-employed individuals surveyed agreed that “strong unions make the free market system stronger.” A significant majority—54 percent—strongly agreed.

ARAW Executive Director Kimberly Freeman Brown says:

We are learning that small business owners across America support the rights of employees to organize unions, believing not only that it makes good business sense, but also that strong unions make the free market system stronger.

A full 69 percent of the respondents said it was very important to their businesses that “Congress enact legislation that rewards responsible employers who respect their workers’ right to join a union.”

Brown added:

Small business leaders are showing us that there is a path to a “win-win” economy in America. Employers and workers can both generate success and share in the rewards of their hard work together.

The online survey included 1,055 respondents who identify themselves as small business owners or self-employed individuals. Click here to read the full results of the survey, “Surveying the Small Business Owner: The Value of Unions In America.”

Among other results, the survey found:

  • Some 52 percent of small business owners express strong concern that “unions have been weakened so much that our economy has actually been hurt.”
  • Nearly three out of five—58 percent—strongly agreed that “labor unions are necessary to protect the working person.”
  • A huge 72 percent strongly agreed that “a good business person can make a profit and respect their workers’ choice to form a union.”

As one politically independent small business owner in Virginia said:

When workers form unions, they can secure benefits and rights in the workplace, including a decent wage and health care. They have economic and job stability. Unions lift workers and workers lift the economy. It’s as simple as that.

*This post originally appeared in AFL-CIO blog on May 18, 2010. Reprinted with permission.

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.

Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment and More

Tuesday, May 18th, 2010

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

images: www.hickmankytourism.com

www.reclaimdemocracy.org

*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

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.

What Is the Best Mindset to Bring to Work

Monday, May 17th, 2010

Image: Bob RosnerLast time I discussed the top “mindsets” that we bring to work. For those of you who like things defined, here goes—mindset is “a habitual or characteristic mental attitude that determines how you will interpret and respond to situations.”

Most of us bring some “habits” to work on a regular basis. After doing a lot of interviews and research, I came up with five. What I like to call the 5 M’s. Machine, military, motivation, measurement and entrepreneurship (okay, that’s not an “M” word. I put it in because that is one of the problems with mindsets, they tend to lock us in to a limited way of viewing the world).

According to your votes, the mindset that you most often bring to work is machine. 35% of you chose it. Next was military with 27%. Followed by motivation, the choice of 17%. Measurement, 15%, and entrepreneurship at 6%.

Each of these mindsets served a purpose at one time. The problem is that they tend to live on long past the point they continue to provide value. Take the top response, machine. A smooth running machine is a very effective way to run a business. The problem? Machines don’t do so well when it comes to creativity and initiative. And those are two things that most businesses can’t do without today.

In addition, all of the mindsets share two basic problems. First, they tend to struggle when it comes to handling complexity. A new competitor, a worker shortage or a lawsuit against your company aren’t things that any of the 5 Ms can really cope with. The problem is that today’s workplace is all about complexity.

But there is an even bigger problem—control. All of these mindsets do best when there is a heavy hand running the show. And that heavy hand may have helped 60 years ago to make the trains run on time, but today many businesses are starting to realize that the brains of their people are a terrible thing to waste. So rather than trying to produce a certain result from people, more organizations are realizing they have to create a place where the best efforts can flow out of people.

So we need to develop a new mindset, one that gives more control to the people who actually do the work. Not for some soft headed share the wealth idea, but because organizations need to extract everything they can from their people’s hands, heads and hearts (okay, that will be the last bit of alliteration for this column).

Ultimately I’m not going to try to sell you on exactly what new mindset to adopt. My point is simply that we need to become more aware of the mindset we bring to work each day. And not forget the creativity and control as we go along our journey at work. Just realizing this should help us all to better navigate our workday more successfully.

QUOTE.
“No more good can be attempted than the people can bear.” Thomas Jefferson

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. You can also hear workplace911 on BlogTalkRadio weekly. If you have a question for Bob, contact him via bob@workplace911.com.

Age Discrimination Gets Attention Of Congress

Friday, May 14th, 2010

Hearings Held On Federal Discrimination Bill To Overturn Gross Decision

Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed,  the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer’s adverse decision instead of  “a motivating factor.” I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

For one, POWADA allows the plaintiff to win an age discrimination case by proving that:

(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  — even if other factors also motivated the practice, or

(B) the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

  • standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
  • the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework
  • employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases — and our clients — to have these evidentiary matters settled once and for all.

image: www.conversantlife.com/files/imagecache/blog_wizard/files/blog_wizard/proof.png

*This post originally appeared in Employee Rights Post on May 9, 2010. Reprinted with permission.

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.

Going Gaga Over Workers’ Rights

Thursday, May 13th, 2010
Credit: Joe Kekeris

Credit: Joe Kekeris

Lady Gaga recently made an unexpected appearance at the Westin Saint Francis hotel in San Francisco—in the form of a flash mob singing a pro-worker version of lyrics to her “Bad Romance.” Replete with tuba, trombone, snare drum and a couple dozen dancing activists, the group materialized in the hotel’s lobby to denounce the chain’s poor treatment of its employees and urge people to “Boycott, boycott,” this “bad, bad hotel.”

Sponsored by the San Francisco chapter of Pride At Work, an AFL-CIO constituency group for LGBTQ workers, the action demonstrated support for the more than 9,000 workers in the area who have been working without a contract since August 2009 at several Hyatt, Hilton, Starwood and InterContinental Hotels (the Westin is owned by Starwood). The activists created the song and dance routine to tell the hundreds of thousands of LGBTQ people from across the country coming to San Francisco in June for Pride Week to honor the worker-called boycott.

After repeated attempts at negotiations, hotel management is trying to deny the workers, members of UNITEHERE! Local 2, affordable, quality health care. As San Francisco Pride At Work notes:

This is despite soaring profits at these multinational corporations. The Starwood Corporation made $180 million in profit in the first nine months of 2009. The Hyatt Corporation generated $950 million for its majority owner—the Pritzker family, and Hilton Hotels recently announced that they have $12.6 billion in available capital to invest in new high-asset ventures over the next several years.

The musical show of solidarity didn’t stop at the Westin. The group snake-danced their way out of the lobby and went on to perform the same skit at the Grand Hyatt down the block.

After all:

Boycott, boycott!

Workers’ rights are hot!

*This post originally appeared in AFL-CIO Blog on May 7, 2010. Reprinted with permission.

About the Author: Tula Connell got her first union card while she worked her way through college as a banquet bartender for the Pfister Hotel in Milwaukee (they were represented by a hotel and restaurant local union—the names of the national unions were different then than they are now). With a background in journalism—covering bull roping in Texas and school boards in Virginia—she started working in the labor movement in 1991. Beginning as a writer for SEIU (and OPEIU member), she now blogs under the title of AFL-CIO managing editor.

Will Congress Restore Equal Opportunity for Older Workers?

Wednesday, May 12th, 2010

Image: LazarusOn May 5 and 6, House and Senate committees held back-to-back hearings on legislation to override a June 2009 Supreme Court decision that stripped older workers of vital protections against bias on which they had relied for over 40 years. In this ruling, which Justice Stevens in dissent characterized as “unabashed judicial law-making,” “irresponsible,” and in “utter disregard” of the Court’s own precedents and “Congressional intent,” a narrow 5-4 majority so weakened the 1967 Age Discrimination in Employment Act (ADEA), that employers are left with little incentive to comply. The case, Gross v. FBL Financial Services, illustrates the accuracy of President Obama’s recent observation that we “are now seeing a conservative jurisprudence” that is both “activist” and bent on gutting laws that, like the ADEA, were enacted to protect ordinary people.

The case arose out of circumstances all too familiar to older workers at all levels in our economy, especially in the hard times from which much of the nation has barely begun to recover. In 2003, Jack Gross, aged 54 and a 32-year employee of FBL Financial, was demoted from his position as claims administration director, and transferred to a newly created position with drastically reduced responsibilities. Gross sued, and at trial introduced “evidence suggesting that his reassignment was based at least in part on his age” (as stated by Justice Clarence Thomas writing for the majority). Gross’ employer responded with the claim that the reassignment was part of a “corporate restructuring.” The jury found for Gross and awarded him $46,945 in lost compensation, after receiving the judge’s instructions that they must rule for the employee if he proved by a preponderance of the evidence that “age was a motivating factor” in his demotion. “However,” the judge instructed, the jury must rule for the employer if the employer proves by the preponderance of the evidence that the employer would have demoted Gross “regardless of his age.” This instruction tracked settled law. But the Supreme Court majority changed the law, and held that Gross and others in his situation needed to show that age was the “but for” cause of their adverse treatment, and that evidence that age was a motivating factor would not shift the burden of proof to the employer to prove that the adverse action would have occurred regardless of the employee’s age.

After the Supreme Court bounced him back to square one, Mr. Gross testified before Congress that the conservative Justices had “hijacked” his case to make an ideological point. His view cannot be dismissed as sour grapes. On the contrary, this 5-4 reversal of the jury verdict in Mr. Gross’ favor creates a veritable perfect storm for older workers. Numerous surveys show that the current financial crisis has forced older workers at all economic levels to shelve plans for retirement, and attempt to stay in, or re-enter the job market. Or hope to. When recession strikes, employers often target veteran employees in reductions in force, and disfavor older candidates for whatever new positions they may need to fill. Age discrimination claims submitted to the Equal Employment Opportunity Commission spiked nearly 30 percent in June 2009 compared with the same month a year earlier.

For these claimants, the Supreme Court’s decision offers a Catch-22. The aptly named decision will largely nullify the ADEA and guarantees that a vast proportion of age bias complaints will fail, whatever their merit. As Senate Health, Education, Labor, & Pensions Committee Chair Tom Harkin (who blogged for ACSblog here) observed in his committee’s March 6 hearing on the bill, in real-world workplaces, employers create paper trails purporting to justify adverse actions on legitimate business-related grounds. In such circumstances, it will rarely be possible to prove that age was the “but-for” cause (a standard some courts have interpreted to mean “exclusive”), rather than a “motivating” factor. Virtually any evidence of any other factors, whether business-related or not, suffices to throw a legitimate age discrimination victim out of court. Employee-side lawyers will know that, so they will rarely waste their time and resources to bring cases when age bias victims come to them for help. Business lawyers will also know that, and will counsel clients that they have nothing to fear if they pay lip-service to the ADEA but ignore it in practice.

As noted above, few cases confirm more clearly than Gross v. FBL President Obama’s observation that recent conservative judicial activism “ignores the will of Congress” and “democratic processes.” “Not only,” Justice Stevens wrote in his impassioned dissent, did the Court’s own precedents reject the “but-for” standard, but “so did Congress when it amended Title VII (of the 1964 Civil Rights Act) in 1991.” Moreover, the majority’s “far-reaching” new rule answered a question completely different from the one the parties had raised with the Court or the courts below and which the Court “granted certiorari to decide.”

When issued a bit less than a year ago, the Gross decision provoked indignant opposition on Capitol Hill, and on October 6, 2009, Senators Harkin and Patrick Leahy and Representative George Miller, simultaneously introduced identical corrective bills, entitled the Protecting Older Workers Against Discrimination Act. The fact that legislative hearings have now occurred on both sides of the Capitol indicates that Congress may well restore equal opportunity guarantees for older workers – just as it did in February 2009, when it overturned the infamous 2007 5-4 Ledbetter v. Goodyear decision that undermined equal pay opportunity safeguards in Title VII. Only through such prompt action can Congress prevent the further metastasizing of this threat to the economic security of older Americans, and all Americans.

*This post originally appeared in American Constitution Society on May 7, 2010. Reprinted with permission.

About the Authors:

Simon Lazarus is Public Policy Counsel for the National Senior Citizens Law Center, where he is responsible for the Washington DC advocacy effort of NSCLC’s Federal Rights Project. He writes frequently on the politics of judicial nominations, on Congressional authority to protect ordinary Americans’ basic needs, and on the ability of individuals to enforce rights under federal and state law.  His articles have appeared in the Atlantic, the Washington Post, The American Prospect, Roll Call, and Huffington Post.  His DePaul Law Review article, “Federalism R.I.P.? Did the Roberts Hearings Junk the Rehnquist Court’s Federalism Revolution?,” expanded an issue brief he authored for the American Constitution Society.  His ACS issue brief, “Mandatory Health Insurance: Is it Constitutional?,” has been widely referenced in the current debate.  His Atlantic article, “The Most Dangerous Branch?”, was republished in two anthologies, The Best American Political Writing 2003, Royce Flippin, ed., and Principles and Practice of American Politics: Classic and Contemporary Readings, 2d ed., Samuel Kernell and Steven S. Smith, eds. (CQ Press 2003).   Si has served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff (1977-81), as a partner in Powell, Goldstein, Frazer, and Murphy LLP (1981-2002), and as Senior Counsel to Sidley Austin LLP (2002-2006). A Trustee of the Center for Law and Social Policy, he graduated from Yale Law School, where he was Note & Comment Editor of the Yale Law Journal.

Sergio Eduardo Munoz is a staff attorney for the Federal Rights Project. Most recently, he was the Public Policy Director of a health reform organization where he coordinated advocacy for the amelioration of health difficulties facing adolescents of color and limited income. This position built upon Sergio’s work directing Latino outreach in the greater Denver area for federal Democratic candidates in the successful 2008 elections. He specialized in bringing first-time voters into the political process, preventing voter suppression, and laying the groundwork for a sustainable and diverse political majority. A graduate of Brown University and the University of Michigan Law School, he has completed legal fellowships at the ACLU of Michigan, the Center for Reproductive Rights, and the Pediatric Advocacy Initiative. Prior to starting law school, Sergio was a social worker for foster children with medical conditions and a civil rights and liberties investigator of police misconduct in New York City.

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