Outten & Golden: Empowering Employees in the Workplace

Archive for October, 2010

A Race Between Philly and NYC on Paid Sick Leave?

Friday, October 15th, 2010

amytraub4As New York continues to waver on enacting overwhelmingly popular legislation that would guarantee working people the right to earn paid sick time, other cities are catching up fast.

Consider Philadelphia, where I had the opportunity to attend an event on earned paid sick leave yesterday. Spurred by advocates from PathWays PA, Women’s Way and other members of the Pennsylvania-based Coalition for Healthy Families and Workplaces policymakers in the City of Brotherly Love are considering their own legislation based on San Francisco’s highly successful paid sick leave guarantee

In a recent study, I analyzed Philadelphia’s situation and how a law similar to San Francisco’s might work there. I found that 210,000 working people in Philadelphia – two out of every five private sector workers in the city – currently lack even a single paid day off to recuperate if they get sick or take care of an ill loved one. As in San Francisco, guaranteeing paid sick time to these workers would not negatively impact Philadelphia’s job growth or business growth. The conclusions are broadly similar to the Drum Major Institute’s findings regarding New York.

Yet Philly may be moving faster to address a problem that’s pressing in both cities. The Philadelphia Inquirer reports that a hearing on paid sick time is expected in Philadelphia this fall. Meanwhile, in New York, the City Council has held multiple hearings, but it’s unclear when the bill will come to the floor for a vote.

Councilman William Greenlee, co-sponsor of the Philadelphia bill, offered a sports analogy, insisting that Philadelphia would prove its policy leadership on paid sick time just as the Phillies would surely trounce the Yankees. Will New York stand for that?

In all seriousness, the national movement for paid sick days is growing, and New York risks falling behind cities like Philadelphia and Milwaukee, where the State Supreme Court now stands poised to rule on a paid sick ordinance approved by voters in 2008. As a result, not only will more than a million New Yorkers continue to make do without what most Americans say is a “basic workplace right,” but the nation’s largest city will miss an opportunity to do something of national importance, setting a powerful policy example for the country as a whole.

This article was originally posted on DMI Blog.

About the Author: Amy Traub is the Director of Research at the Drum Major Institute. A native of the Cleveland area, Amy is a Phi Beta Kappa graduate of the University of Chicago. Before coming to the Drum Major Institute, Amy headed the research department of a major New York City labor union, where her efforts contributed to the resolution of strikes and successful union organizing campaigns by hundreds of working New Yorkers.

OSHA's squeaky Whistleblower Protection Program

Thursday, October 14th, 2010

Workers Comp Insider LogoMost people are aware that, since 1970, the Occupational Health and Safety Administration (OSHA) has been responsible for issuing and enforcing standards for workplace health and safety. But if I were a betting person, I would wager that far fewer are aware of OSHA’s responsibilities in relation to the Sarbanes Oxley Act. OSHA is charged with protecting workers ” …from retaliation for reporting alleged violations of mail, wire, bank, or securities fraud; violations of rules or regulations of the SEC; or federal laws relating to fraud against shareholders.”

This responsibility is part of the Office of Whistleblower Protection Program (OWPP),for which OSHA has oversight. OWPP was originally intended to protect workers from being retaliated against for such things as reporting safety violations to OSHA, requesting or participating in an OSHA inspection, or testifying in any proceeding related to an OSHA inspection.

Over the years, this responsibility has expanded to encompass oversight of the whistle-blowing provisions for eighteen other statutes, including violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, health care reform, nuclear energy, pipeline, public transportation agency, railroad and securities laws.

And according to a recent report by the Government Accountability Office (GAO), OSHA gets failing grades for discharging its whistleblower protection responsibilities. The GAO cited lack of training, chronic inattention from OSHA leaders, and long delays in resolving cases, among other problems.

Some say the problems are no surprise: too few staff spread too thin, resulting in long case delays and staff demoralization. You can see charts depicting the growth of responsibilities while staff remained flat on pages 16-17 of the GAO Whistleblower Report. (PDF)

Some relief is in the offing – 25 new investigators are scheduled for appointment to OWPP. In addition, the Department of Labor (DOL) is conducting a “top to bottom” review and there is some discussion about whether the program should be moved to another part of DOL.

Whistleblowers are fundamental to workplace safety, but even with protections built into the laws, the reality is that protection for whistle-blowing employees can be a long time in coming, when and if it does. Read about truck driver John Simon’s whistle-blowing ordeal as a case in point. There are unfortunately many other similar stories. OSHA offers employees a a bill of rights to ensure safety, but fundamental to those rights are protections when and if they speak up in the cause of safety.

This article was originally posted on Workers Comp Insider.

About the Author: Julie Ferguson is an insurance industry consultant with more than 20 years experience developing and implementing communications programs for workers compensation, workplace health & safety, employee communications, and general insurance programs. She founded and serves as editor for the nation’s first insurance weblog, Lynch Ryan’s Workers Comp Insider. She also founded and manages HR Web Café, a weblog for ESI Employee Assistance Group; Consumer Insurance Blog for the Renaissance Insurance Group; and is one of the administrators of Health Wonk Review, a bi-weekly health policy carnival. If you have a question for Julie, you can reach her at jferguson@lynchryan.com.

Public Employees Under Attack

Wednesday, October 13th, 2010

Image: James ParksThe people who teach our children, protect us from crime, put out fires in our homes and make sure our water is clean are under attack. Conservative pundits and politicians across the country are using the economic crisis to attack public employees and portray them as privileged compared with everyone else. They use the fact that public employees, many of whom are union members, have been able to keep their well-funded pensions, reasonable hours and decent pay to stir up rage from those who have lost these benefits in the private sector.

Many cash-starved state and local governments have used these same arguments as a cover to cut services, personnel and pension benefits to balance their budgets and weaken unions.

Several new studies should put those arguments to rest. The Economic Policy Institute (EPI) found that state and local public employees are actually underpaid. In “Debunking the Myth of the Overcompensated Public Employee: The Evidence,” Rutgers University professor Jeffrey Keefe found that, on average, state and local government workers are paid 3.75 percent less than similar workers in the private sector.

The study also found the benefits that state and local government workers receive do not offset the lower wages they are paid. The differential is greatest for doctors, lawyers and professional employees, the study found. Read Keefe’s report here.

Public employees also work hard for their lower pay, often putting themselves in danger. According to the Center for Economic and Policy Research (CEPR), nearly two in five state and local government workers—more than 1.4 million— worked in either physically strenuous jobs or jobs with difficult working conditions. Notably, almost half (47.5 percent) of local government employees between ages 55 and 65 held such jobs. If the retirement age were increased, the report says, many of these workers, due to the physical challenges of their jobs, would have to leave the workforce before they are eligible for full retirement benefits. Read the CEPR report here.

Writing in the New York Daily News, Dan Morris of the nonpartisan Drum Major Institute for Public Policy says the attacks on public employees are absurd and dangerous.

…if public-sector workers become cheap, expendable labor, they will contribute less to the tax base and spend less, blunting private-sector job creation. A healthy public sector is just as good for the investment banker as it is for the unionized electrician.

EPI estimates that every 100 public-sector layoffs result in about 30 private-sector layoffs because the subsequent loss of income dampens consumer spending and thus weakens the economy. Says Morris:

The race to the bottom is a callous attempt to lower expectations for employment at a time when millions of people are counting on them to be raised. No victory worthy of the name can be achieved on those terms.

This article was originally posted on AFL-CIO Now Blog.

About The Author: John Petro is an urban policy analyst at the Drum Major Institute for Public Policy. He runs the Progressive Urban Model Policies (PUMP) Project, a first-of-its-kind initiative to organize and share best practices in policy design and implementation. His writing on urban issues has appeared in the San Francisco Chronicle and his recent research has been covered in Politico, The New York Times, Reuters, and other media outlets.

Job Tracker: Outsourcers Can Run, But Now They Can’t Hide

Tuesday, October 12th, 2010

Image: Mike HallIn the past decade, more than 5 million manufacturing jobs and 850,000 information sector jobs have disappeared—many of which have been shipped overseas. This outsourcing is encouraged by faulty trade and tax policies that corporate executives use to boost record-breaking profits and outrageous and obscene executive salaries.

But finding out specific information on specific companies sending American jobs overseas and devastating their communities has been nearly impossible—until today. The AFL-CIO and Working America’s new Job Tracker database lists information on more than 400,000 corporations that have exported jobs overseas, violated health and safety codes or engaged in discriminatory or other illegal practice. (Check it out at http://t.co/qbg7wwm.)

AFL-CIO President Richard Trumka, in a conference call with reporters this morning, said Job Tracker’s searchable by ZIP code and the interactive database gives

everyday people the opportunity to actually see what is happening in their community and shine the light on what corporations are doing. For the first time, working people have one place to see the real impact of the failed policies of the past that gave corporations the ability to ship American jobs overseas.

With this new data as a benchmark, working people will have the ability to separate the economic patriots from the corporate traitors at the ballot box.

Karen Nussbaum, executive director of Working America—the AFL-CIO’s community affiliate— said, “Because of Job Tracker, corporations who have taken advantage of lax trade policies in America and abroad will no longer”

be able to hide behind the veils of bureaucracy. Every night on our neighborhood canvasses, we hear from people who want to know which companies are profiting off the loss of their jobs. Corporations have created a global race to the bottom and working people won’t stand for it.

A recent Wall Street Journal poll shows 83 percent of blue-collar workers say outsourcing of manufacturing jobs is the reason the U.S. economy is struggling and why companies are not hiring. Jobs are the No. 1 issue for working family voters this year, said Trumka.

We must demand that our leaders show that they stand with working families—fighting to create jobs, rejecting unfair trade deals and putting us on a path to make things in America again.

Here’s how Job Tracker works. Simply enter a ZIP code, for example Toledo, Ohio’s 43606. A few clicks of your mouse will find 20 companies—from Ace Packaging Systems to Tecumseh Products—have exported jobs, mostly manufacturing jobs. Another 19 firms have laid off workers because of the impact of trade and 61 companies have made or filed notice to make mass layoffs.

Also, 39 companies had cases involving workers’ rights violations under the National Labor Relations Act, and 1,170 have received health and safety violations under the Occupational Safety and Health Act (OSHA).

Trumka said the Job Tracker provides the kind of information to help working families make their choices at the ballot box Nov. 2 and working families can use to determine who is on the side of working families.

The choice is clear—leaders who will fight to create and keep good jobs here in America, or the corporate traitors who insist on the policies that have rigged the playing field.

Job Tracker information draws on sources, including the U.S. Department of Labor’s Trade Adjustment Assistance records, Worker Adjustment and Retraining Notification (WARN) Act notices, OSHA records and more. The Job Tracker site also enables visitors to use Facebook and Twitter and e-mail to report companies exporting jobs in their communities.

As part of Job Tracker, Working America also is releasing a “white paper,” OUTSOURCED: Sending Jobs Overseas: The Cost to America’s Economy and Working Families, which details how trade policies have outsourced good jobs. Working America will share the results with members of Congress and the economic community as a new analysis on what policies must be passed to turn our economy around.

This article was originally published on AFL-CIO Now Blog.

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. He 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.

Google and the Truth

Monday, October 11th, 2010

Image: Bob RosnerRecently I had a chance to interview a former top executive for Google. She was wicked smart, insightful and clearly thought three or four steps ahead.

I kept grilling her about what the average person should know about online searches. We spent a lot of time on such topics as phrasing the searches correctly, a series of tricks you can use to make for a better search (for example putting quotation marks around the key words) and a variety of tools that Google has to help that most people don’t know anything about.

Then she dropped her bombshell. I was asking her what is the one thing that we don’t understand about Google searches. Okay, it was what I consider a fishing expedition question. An outrageously open ended question that 10% of the time generated an interesting insight, but far more often gave me a chance to catch my breath and think of anything else I needed to ask before the end of the interview.

Even though I heard her answer, I made her repeat it twice. Okay, I think that’s just about enough buildup.

“Google searches aren’t about the truth, they’re about what’s popular.”

Google has fancy algorithms that simply scour the web to see what is the most popular site in terms of the search that you requested. Most popular.

It’s as if your high school math teacher didn’t give you a positive grade for the correct answer to a problem, the highest grade went to whoever predicted what the rest of the class would pick for their answer.

Popularity contests work great for high school homecoming contests, political races and impulse purchases at the counter of a grocery store. But for our information based economy, betting our entire future on what’s popular is risky. Heck, it’s dangerous.

Google is clearly popular. The question for the rest of us is can the company consistently get it right?

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.

Gen Y’ers Are Special Cases

Friday, October 8th, 2010

Image: Noel S. WilliamsHave you seen the “Drill Sergeant Therapist” commercial put out by Geico?  A self-pitying patient who looks like a Generation Y member exclaims his sadness from the couch.   He engenders little sympathy from the therapist who energetically offers to escort the “Jackwagon” on a trip to namby-pamby land in search of some real self-confidence.   The therapist then throws a tissue at his sniveling subject, disdainfully calling him a cry baby.

That kind of “tough love” may be the best therapy for the self-indulgent Gen Y’er, who looks like a confused product of the self-esteem movement.   The poor lad was probably brainwashed by mollycoddling teachers into thinking he’s “special,” but when it didn’t pan out that way in the real world, oh, he got so awfully sad.

I’m also sad because I have to deal with these “special” people in the workplace, consoling them lest the fret over not getting the best laptop or an extra PC monitor.    I even feel sympathy for our Human Resources department who must deal with their tantrums over not being promoted after completing their vey first assignment.

Over the last 20 years, permissive parents successfully lobbied schools to emphasize self-esteem over accomplishment, but these idealistic efforts to build self-confidence have often gone too far.  You’ve probably heard the little tune “Frere Jacques”.  Well, many educators tweaked the ditty such:  “I am special, I am special. Turn around, you will see.  Someone very special, someone very special, yes it’s me, yes it’s me!”  This is the kind of codswallop that leads Generation Y workers to demand a reward system based on little voices in their psyches telling them they’re special, but not based upon merit systems that enable businesses to thrive.

The “I am special” mantra lays the groundwork for unrealistic expectations and may cause cognitive dissonance when the reality hits that only a few of us are truly special.  Indeed, namby-pamby land is well represented by sad Millenials — mental health statistics show they are a stressed-out generation.

It’s problematic trying to forge a cohesive work unit from nice, but essentially ordinary workers running around with ill-conceived impressions about their self-worth.  It group cohesion when a Gen Y employee complains because our business needs preclude his unusual work schedule demands, or that our career management systems don’t instantly recognize how special he is.

Workplace surveys consistently show that Gen Y employees are generally poor performers.  Many highlight troubles assimilating Gen Y employees into the workplace, suggesting they bring as many unique challenges as strengths to the workplace.

Survey results corroborate my anecdotal experiences.  My work unit was cohesive, productive and stable… until two special people joined us.  One of our newest colleagues was a Gen Y’er whose first of many peccadilloes was to erect a conspicuous  sign in her cube proclaiming “I am special.”

Established employees whose innovation and productivity created her new position wanted action; they wanted proof of her specialness, not just obtrusive signs.  Unfortunately, the self-esteem movement which forged her notion of self-importance didn’t provide her with commensurate skills.  It didn’t help that her overinflated ego led to demands for perks normally assigned to someone approaching retirement.

Our second special recruit was an equally misguided male whose highfalutin attitude was preposterously misplaced. Despite numerous efforts at remedial training and counseling, human resources eventually aided him with some outplacement services.

Attitudinal differences between generations are complex and I’m not special enough to offer an antidote.  Perhaps a bit of authoritative parenting would keep potential namby-pambies away from drill-sergeant therapists; more importantly, away from my workplace.  Educators could also toughen up a bit, perhaps even rewarding superior performance instead of imbuing everyone with Pollyannaish notions.

Pending a shift in societal norms, we can at least remedy the symptoms. Awareness in attitudinal differences between generations will enable us to direct scarce training resources to programs that install self-confidence founded upon hard work and accomplishment, not self-entitlement.

In the meantime, there is one special benefit to the great economic recession:  faced with layoffs instead of promotion, Gen Y workers are adopting a stronger work ethic and are more amenable to direction.  Let’s hope they keep it up when we’re able to hire again.

This article was originally published on Recruiting Trends.

About the Author: Noel S. Williams currently enjoys work as an Information Technology Specialist.  While he also holds a master’s degree in Human Resource Management, it is his training as Jedi Knight that gives him the fortitude to delve into the dark side of workplace unfairness.

Young Workers in Free Fall: 1/3 Under 35 Live with Parents

Thursday, October 7th, 2010
Image: Art LevineSo much for the economic independence that’s supposed to come with young adulthood.

But when unemployment among young men workers is the highest it’s been in 61 years, as noted by New York Times columnist Bob Herbert, it’s little wonder that workers under 35 are facing so many economic obstacles.

On Tuesday, the AFL-CIO released the results of a disturbing new Peter Hart survey, “Young Workers: A Lost Decade” that found that about a third of workers under 35 live at home with their parents, and they’re far less likely to have health care or job security than they were ten years ago. Even then, in a 1999 survey, when they faced economic insecurity, they still had reasons to be hopeful.

Those days are long gone. A quarter of young workers say they don’t earn enough to even pay their monthly bills, a 14% rise from the last survey. As Richard Trumka, the presumptive incoming president of the AFL-CIO, said in a press conference today:

We’re calling the report “A Lost Decade” because we’re seeing 10 years of opportunity lost as young workers across the board are struggling to keep their heads above water and often not succeeding. They’ve put off adulthood – - put off having kids, put off education – and a full 34 percent of workers under 35 live with their parents for financial reasons.Thirty-five percent are significantly less likely to have health care than older workers, only 31 percent make enough money to pay their bills while putting anything aside in savings, and almost half are more worried than hopeful about their economic future.

That’s one reason that Trumka and other labor leaders announced this week a new outreach campaign to recruit young workers — and a stepped-up drive for the Employee Free Choice Act and health care reform. They used Labor Day, with the  involvement of 100,000 union members in just the AFL-CIO alone in events and actions, as a launching pad to spur Congressional action.

As Trumka declared in a speech Monday at the Center for American Progress (via Working In These Times blog):

The challenge facing unions isn’t just to change the way labor laws work; it’s to change the way we work.It’s to reconfigure ourselves to respond to the needs of a new generation of working Americans….

Younger workers ought to have health care. They ought to have paid sick leave and paid vacations. They ought to have pensions. They ought to have union representation.

But when they look at unions too often what they see is a remnant of their parents’ economy — not a path to succeed on their own. This is the issue that will decide the future of the American labor movement.

We all hear a lot about unions coming back into the AFL-CIO — and that’s a personal priority of mine – but, ultimately, it won’t matter how many unions are in the AFL-CIO if we fail to capture the imagination of millennials.

Now, we ought to be clear: the problem isn’t that they have some deep-seated hatred of unions; they don’t….They think we do a lot of good things for our members; the problem is that they don’t think we have much to offer them.

The union movement hopes to change that perception by offering them the concrete gains unions can offer them in the workplace, and as In These Times’s David Moberg observes, they’re potentially open to progressive appeals:

They primarily blame Bush, Wall Street/banks, and corporate CEOs and see job loss, inadequate wages, and healthcare costs as working people’s biggest economic problems.They strongly prefer public investment to create jobs over reducing the deficit. And by a 50 to 23 percent margin, they think workers are better off with a union. They support Obama and identify with Democrats much more strongly than older workers.

But the future now looks particularly bleak, especially if the “jobless recovery” continues at its relatively slow pace, and the level playing field for union organizing remains blocked by opponents of the Employee Free Choice Act.

At the media conference on Tuesday, one 31-year-old worker, Nate Scherer, explained his all-too-common plight:

After getting married, my wife and I decided to move in with my parents to pay off our bills. We could afford to live on our own but we’d never be able to get out of debt. We have school loans to pay off, too. We’d like to have children, but we just can’t manage the expense of it right now…so we’re putting it off till we’re in a better place. My [work] position is on the edge, and I feel like if my company were to cut back, my position would be one of the first to go.

Nate at least has a job, but he represents an economic tsunami for young workers that offers a profound challenge to the country — and our economic future. As Bob Herbert, looking at both long-term joblessness and the problems facing young workers, summed up recently in his column“A Scary Reality”:

For those concerned with the economic viability of the American family going forward, the plight of young workers, especially young men, is particularly frightening. The percentage of young American men who are actually working is the lowest it has been in the 61 years of record-keeping, according to the Center for Labor Market Studies at Northeastern University in Boston.
Only 65 of every 100 men aged 20 through 24 years old were working on any given day in the first six months of this year. In the age group 25 through 34 years old, traditionally a prime age range for getting married and starting a family, just 81 of 100 men were employed.

For male teenagers, the numbers were disastrous: only 28 of every 100 males were employed in the 16- through 19-year-old age group…

This should be the biggest story in the United States. When joblessness reaches these kinds of extremes, it doesn’t just damage individual families; it corrodes entire communities, fosters a sense of hopelessness and leads to disorder.

The union movement’s leaders are hoping that by engaging young workers and increasing its power in more workplaces, they can start turning around this crisis and making up for “The Lost Decade.”

This article was originally published on Alternet.org.

About the Author: Art Levine, a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate.com, Salon.com and numerous other publications. He can be reached at artlevine@inthesetimes.com.

CNN Money Reporter Looking for Temp Workers

Wednesday, October 6th, 2010

When temporary hiring picks up, full time jobs are soon to follow. At least, that’s the way it’s supposed to work. But after this recession, that’s not happening. Temp jobs are booming, but where are the permanent jobs?

If you recently worked a temp job that you thought would become permanent, but didn’t, CNNMoney.com would like to hear your story. Email annalyn.censky@turner.com with your story and contact info, and you could be featured in an upcoming article about temporary jobs.

Turning the Other Cheek: Illegal Retaliation in the Workplace

Wednesday, October 6th, 2010

Piper HoffmanTurning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

This article was originally published on PiperHoffman.com

About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School.  She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.

Keeping it Public (If the Libraries Don’t Sway You, the Blazing House Might)

Tuesday, October 5th, 2010

amytraub4Last week, the New York Times reported on Library Systems & Services, a private, for-profit company that an increasing number of towns are contracting to take over their local public libraries. The company pares budgets and turns a profit by, among others things, replacing long-term employees with those who will “work.” In the article, CEO Frank Pezzanite mocks “this American flag, apple pie thing about libraries” and ridicules the idea that “somehow they have been put in the category of a sacred organization.” The problem? Local residents seem to believe there is something all-American – and possibly sacred – about this community institution. I know where they’re coming from.

Public libraries represent the best of American tradition of local communities chipping in for the common good, while advancing democratic values of free inquiry and universal access.

Through our local libraries, we all contribute to create a public space where anyone can access the world’s outstanding literature, music, and film; popular entertainment; the fruits of human knowledge and insight; computer and internet access; resources for jobseekers and students; edifying speakers; programs that engage schoolchildren; and story hours that delight the youngest members of our community. I’m never going to check out that new Janet Evanovich novel (or, for that matter, Bill O’Reilly’s latest bestseller) but I’m damn glad my tax dollars paid for it to be available on the shelves. The common resource is bigger than any of our individual tastes.

Something of that is lost when a profit-driven company turns a community institution into a source of private gain. It’s not just the likelihood that public employees earning middle-class salaries will likely be turned out in favor of less experienced staff – although I’ve written in opposition to that as well. Rather, it’s the idea, articulated by American Library Association President Robert Stevens in response to the Times article, that for-profit libraries may not “remain directly accountable to the publics they serve.” Or, in the words of the late historian Tony Judt, “shifting ownership onto businessmen allows the state to relinquish moral obligations… A social service provided by a private company does not present itself as a collective good to which all citizens have a right.”

The point may be subtle when we’re talking about computers and books on a shelf (no matter how critical a part of democracy) but it’s hard to ignore a house on fire. This morning at Think Progress, Zaid Jilani describes the situation in Obion County, Tennessee, where fire services are funded by subscription fees rather than general tax revenue. Those who pay the fees can call the fire department to save lives and extinguish blazes. For those who can’t or won’t shell out for the service, Jilani’s headline says it all: Tennessee County’s Subscription-Based Firefighters Watch As Family Home Burns Down. Maybe there’s something to the “American flag, apple pie” thing about public services after all…

This article was originally published in DMI Blog.

About the Author: Amy Traub is the Director of Research at the Drum Major Institute. A native of the Cleveland area, Amy is a Phi Beta Kappa graduate of the University of Chicago. Before coming to the Drum Major Institute, Amy headed the research department of a major New York City labor union, where her efforts contributed to the resolution of strikes and successful union organizing campaigns by hundreds of working New Yorkers.

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