Outten & Golden: Empowering Employees in the Workplace

Archive for June, 2011

How Budget Cuts and Privatization Endanger Workers in Psychiatric Hospitals

Thursday, June 30th, 2011

kari-lydersenStephanie Moulton reportedly loved her job as a social worker serving mentally disturbed people living in group homes under the care of the state—many of them having ended up there as a result of criminal charges.

Moulton was brutally killed by one of the schizophrenic men in her care, Deshawn James Chappell, while the 100-pound woman was, as usual, working alone at the group home. Other residents had left for programs and she was taking Chappell to an appointment when he stabbed her to death, dumped her body and fled to his grandmother’s house. His distraught mother told The New York Times she had been telling officials at two different homes for some time that her son was off his medication and becoming increasingly erratic and violent. Working alone, Moulton was not physically equipped for the challenge.

Meanwhile, workers at juvenile detention centers in a number of states are complaining of being regularly attacked by their young charges, and discouraged from reporting the incidents by higher-ups, as reported by the Associated Press last week.

Both situations are examples of how government budget cuts and privatization of social services over the years—becoming even more critical in current times—put both government workers and people under the government’s care at serious risk.

The New York Times story relates Moulton’s murder to the larger trends of de-institutionalization of the mentally ill and also the privatization of group homes that pick up much of the slack for greatly decreased numbers of beds for the mentally ill in medical facilities.

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Working conditions in state-run mental institutions have become more dangerous because of state budget cuts and privatization, say workers.

De-institutionalization, on the one hand, was seen as a just way to grant more freedom and autonomy to people with mental issues who did not necessarily need to live in institutional, often repressive settings. But it was also a major way for state and federal government agencies to cut costs, and many said the civil rights aspect was largely cover for cost-cutting that leaves legitimate needs for institutional settings unmet.

Chappell‘s mother said it was not until he faced criminal charges that her son was able to get into government care, even at one of the relatively open group homes where he was allowed to go off his medication and ultimately killed Moulton.

Even after de-institutionalization, group homes have increasingly been privatized, meaning less oversight of their staffing levels or other practices and more incentive for the companies to cut corners to make a profit. Moulton was transferred to the home where she was killed after she was threatened by a hostile resident at another home.

As employees of individual private companies, workers at these facilities would likely find it very difficult to unionize; whereas if the government were running the group homes, workers would at least likely be represented by a relatively powerful public employees union.

Workers at juvenile detention facilities are largely represented by unions, which are speaking out about the physical risks faced by staffers. The AP quotes Jason Prevatt, who suffered a concussion, broken nose and black eyes when attacked by youth at a Massachusetts facility last year:

When I come through the door, I just feel like I have no rights … It’s very unsafe and it’s basically enter at your own risk.

Juvenile detention workers said they are understaffed and are strongly discouraged from reporting or especially pressing charges regarding assaults by youth detainees. One administration official was quoted saying prosecuting youth would be contrary to the idea of working for their rehabilitation.

But workers note that allowing detainees to act up with few consequences makes things unsafe for staff and other detainees. The AP reported:

In Maryland, a 13-year-old boy at a juvenile detention center was charged last year in the death of a 65-year-old teacher, who was beaten, sexually assaulted and choked. An investigation found that the slaying was the result of “multiple systemic security failures,” including outdated buildings and a shortage of security cameras and radios for staff.

In Massachusetts, there were 182 assaults on staff by youths during the 9-month period ending in February, according to figures provided by the American Federation of State, County and Municipal Employees Council 93, which represents more than 45,000 employees in Maine, Massachusetts, New Hampshire and Vermont.

Of course, reports of abuses and neglect by staff at group homes and juvenile detention facilities nationwide are also common. For example, in Chicago several years ago, youth at a temporary detention facility alleged they were forced to eat rotten food and go without clean underwear for weeks.

The root causes of abuses and harm suffered by both residents and staff in such government-run facilities are likely the same—slashed budgets, lack of oversight, privatization and general lack of respect for both people in government detention or care, and those who work with them.

This blog originally appeared in These Working Times on June 23, 2011. Reprinted with Permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

Octogenarian Manager Strikes Blow Against Age Bias

Wednesday, June 29th, 2011

David WeisenfeldThe Florida Marlins hiring of 80-year-old Jack McKeon on June 20 to manage their team for the remainder of the baseball season was greeted with widespread ridicule.  Sports-talk radio hosts on WFAN 660 in New York mocked the Marlins, and others were quick to do so as well.  No one other than the legendary Connie Mack, who also owned his team, has ever been an older manager.

But turning the ill-informed criticism aside, McKeon’s qualifications were beyond reproach.  In 2003, at age 72, the Marlins hired McKeon in May while similarly mired in last place.  All he did that year was lead the young Marlins to a World Series Championship which included upset playoff victories over the heavily favored Chicago Cubs and New York Yankees.

In both series, the Marlins won the clinching games on the road at Wrigley Field and Yankee Stadium.  That made McKeon only the second manager in baseball history to take over a team at mid-season and lead it to a championship.

McKeon followed up that performance by leading the Marlins to winning seasons in both 2004 and 2005 despite the fact that the squad had one of the lowest payrolls in all of baseball.  He then retired as manager, but has remained active as a consultant to the team’s ownership.

Known as “Trader Jack” from his days as a baseball general manager, McKeon assembled the San Diego Padres team which won the 1984 National League pennant.  He also experienced success managing the Cincinnati Reds in leading the team to a one-game playoff, which it lost, in 1999.  Another winning year followed in 2000.  For his efforts, McKeon was fired.  After his exit, the Reds went a decade before finally having another season where they won more games than they lost.

Clearly, McKeon is a guy who knows what he is doing.  He also enjoys a well-earned reputation for getting players to earn his respect and play hard for him.  So the question really isn’t why the Marlins opted to hire McKeon, but why not?  After all, what other candidate would have had a more impressive background?

And yet, the ageism in so many of the comments about McKeon’s hiring was striking.  You may or may not want an octogenarian fighter pilot.  But managing a baseball team requires acumen, decisiveness and the ability to deal with people, all skills which the Marlins new manager possesses in great measure.

When the Boston Red Sox hired then 28-year-old Theo Epstein as the team’s general manager eight years ago, less was made of the inexperienced Epstein’s age than was the case with McKeon.  Epstein ultimately proved to be a great hire as well in one of the most difficult media markets in the country.  All he did was help end the infamous “Curse of the Bambino” as the Red Sox won two World Series titles in a four-year span.  The first of those titles ended an 86-year drought.

The take-away message is that young or old, it is the quality of the job candidate that matters most—not their age.  There are many other Jack McKeons out there who could still be making strong contributions in a wide variety of positions if given the chance.

At the Supreme Court, Justice John Paul Stevens retired last June at the age of 90.  Until the end, Stevens was an adept writer and questioner.  He also regularly was more engaged during oral arguments than some of his colleagues, including Justice Clarence Thomas who was 30 years his junior.

Age is just a number.  Every person is different, and must be judged on their individual merits rather than by arbitrary stereotypes.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

Do You Care How Much the Boss Makes?

Tuesday, June 28th, 2011

Image: Bob RosnerThere is a bill currently in Congress that would require companies to provide a simple comparison of what the CEO earns and how this compares to the pay of average employees.

Sounds simple, right.

No this is controversial stuff. Some Republicans in Congress call the comparison between the chief executive’s pay and everyone else in the company “useless.”

Useless?

So a group backed by 81 major companies, including McDonald’s, Lowe’s, General Dynamics, American Airlines, IBM and General Mills, is lobbying against this proposal.

According to a study by MIT and the Federal Reserve, executive pay at the nation’s largest firms has more than quadrupled in real terms since the 1970’s even as pay for 90% of America has stalled.

Remember, this isn’t a labor union study. It’s done by MIT, the Federal Reserve, the University of California and published in the Washington Post.

In 1979 the average executive pay at the nation’s top companies was 28 times the average worker’s income. By 2005, executive pay had jumped to 158 times that of the average worker.

I’ve just lost any shred of objectivity. This is insane.

But don’t just look at it from the point of view of an employee. Don’t investors need to know these numbers? To see how much executives are gilding their own pockets?

Call me old school, but I believe that sunlight is the best disinfectant. Let’s hope that Congress doesn’t allow this information to see the light of day.

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.

Apple Store Workers Share Why They Want to ‘Work Different’

Monday, June 27th, 2011

eidelson-headshotOn the day Apple celebrated 10 years since opening its first Apple Store, employee Cory Moll announced a campaign to unionize the company’s 30,000-plus retail employees. Moll sent an e-mail to reporters declaring that “the people of Apple are coming together to “‘work different.’” “The core issues definitely involve compensation, pay, benefits,” Moll said.

A Reuters reporter echoed the response of many journalists in calling the union drive “unusual given Apple’s reputation for fierce employee loyalty.” But interviews with workers in three states help explain how and why some of Apple’s employees want to change the company. (All three employees interviewed for this article requested and were provided anonymity based on their fear of retaliation.)

A Bay Area employee described what happened last year when he and about a dozen co-workers realized employees with years of service were being paid less than new hires doing the same work. Agitated about the situation but concerned about retaliation, the workers committed to a plan: during the approaching round of annual one-on-one meetings between workers and managers, they would each ask about pay disparities.

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Supposedly happy and loyal Apple employees help sell things at the Covent Garden Apple Store in London on May 23, 2011.

Those workers who did ask received a consistent response: “Money shouldn’t be an issue when you’re employed at Apple.” Instead, managers said, the chance to work at Apple “should be looked at as an experience.” “You can’t live off of experience,” said the worker interviewed. The Wall Street Journal reported last week that Apple has outpaced Tiffany & Co. jewelers in retail sales per square foot.

Employees said that Apple keeps its healthcare costs down by defining even employees working 40 hours a week as part-time if they can’t guarantee open availability (availability to be scheduled to work anytime the store is open). The three workers interviewed said that most employees at each of their stores either work second jobs or go to school, making open availability impossible.

These workers are instead offered Apple’s “part-time” health insurance plan, which costs them much more and the company much less. The Bay Area worker, who works 32 to 40 hours a week, is currently going without medication for a serious health condition because he can’t afford the $120 to $150 a month for the “part time” plan. “$120 a month is what I live on after rent and bills,” he said. All three employees said that the majority of their co-workers were classified as part time.

A Maryland worker said that Apple’s understaffing can make the workload “overwhelming” during high traffic periods and leaves him “singled out” by frustrated customers. He said it “adds tension and makes it a lot more difficult to be effective” as both employees and customers become increasingly stressed.

A New York State worker said that “our demand has outgrown our staffing tremendously,” and that he is yelled at by customers at least once a week. He said the contrast between the lengths Apple goes to satisfy customers and its inflexibility in the face of employees’ needs is “demoralizing.”

The same worker said he has ideas for how to make his store run more effectively, but has no avenue to get them taken seriously given Apple’s “very top-down corporate culture.” In the past year, management made “a very big overhaul” of workers’ schedules and responsibilities at his store. For his co-workers, it meant “less time doing the things they like to do both at work and outside of work”: less time for repairs and more time on the floor; less consistent schedules and more times working a night shift followed by a morning shift hours later.

The change “wreaked havoc” on his personal life and “strained” his relationship with his girlfriend. He calls the new system “a drain emotionally and physically” and resents that he had no voice in it. Though he’s undecided about unionization, he said if it happened, “the biggest benefit” would be “just having a say in these situations.”

All three workers interviewed saw organizing the stores as a daunting task.  The Bay Area worker said he is eager to get involved but most of his co-workers fear punishment for “even talking about a union.” He said that Apple goes out of its way to make employees feel “extremely expendable.” “For a company that has been founded on the ideas of ‘think different’ and innovation,” he said, “their labor practices are anything but.”

The Maryland employee said that although he wants a union, his first reaction on hearing about Moll’s e-mail was, “That guy is going to get fired.” He said after he was hired, a trainer told him “casually” that Apple was against union organizing and that working nonunion was part of the job. The comment was “thrown in there with the sexual harassment training.”

Moll told industry website Inside Apple Store that he has begun working with a “prominent national union” to organize his own store and that he has received e-mails from workers at 100 other stores interested in union representation.

Apple, which has more than 30,000 employees in 325 stores around the world, did not respond to a request for comment.

This blog originally appeared In These Times on June 24, 2011. Reprinted with permission.

About the Author: Josh Eidelson is a freelance writer and a union organizer based in Philadelphia. He’s written about politics as a contributor to Campus Progress, a columnist for the Yale Daily News, and a research fellow for Talking Points Media. His work has appeared online at publications including In These Times, Dissent, Washington Monthly, and Alternet. Check out his blog: http://www.josheidelson.com Twitter: @josheidelson E-mail: jeidelson@gmail.com.

Too Big to Sue? High Court Thwarts Wal-Mart Gender Discrimination Case

Friday, June 24th, 2011

Michelle ChenAs legions of Walmart workers shuffled into work on Monday, the Supreme Court smacked down a major class-action lawsuit that might potentially have shifted the legal landscape on women’s rights in the workplace.

The gender-discrimination lawsuit against the world’s most notorious retail giant had been pending for years. Now the Court’s majority opinion has declared that, in light of “Walmart’s size and geographical scope,” the plaintiffs could not provide “significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.”

And with that, Justice Antonin Scalia rendered perhaps hundreds of thousands of working women absent from the discussion on gender discrimination in today’s sink-or-swim economy. The split in the most significant part of the judgment, the class-action aspect, was five to four, putting all the female justices in the minority. The division ironically suggested a lack of self-reflection on how structural gender discrimination works in powerful institutions.

The core of the decision is not about whether Walmart did indeed discriminate. There’s ample evidence of that, though, including records of pay scales skewed against women, unequal hiring patterns in managerial positions, and expert testimony on the social implications of these trends. The Court’s opinion doesn’t examine that, but rather whether America’s discount paradise can be held legally accountable for systematic mistreatment of female workers.

The ruling was a high-five moment for the right, as it allows Wal-Mart executives to skirt a gargantuan liability. Going forward, the decision will in many circumstances leave the women on their own in seeking legal redress, since their claims can’t be in a mega-suit. Although Wal-Mart’s main defense is that it’s not responsible for lower managers who violate non-discrimination rules, the plaintiffs alleged a crime of omission: that the corporation failed in its responsibility to prevent bias against women as a matter of policy. A statment from the case sums up their position:

The discrimination to which they have been subjected is common to all Walmart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Walmart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

By enabling discrimination, the suit contended, Walmart should be held liable all the way through the command chain, from the exec in the boardroom down to the greeter at the store entryway. That’s where lead plaintiff Betty Dukes got stuck. She was demoted to greeter after working higher positions at a Pittsburgh, California store, she alleged, primarily because management retaliated against her for formally complaining about her treatment. Male colleagues who behaved similarly, Dukes says, never faced the same discipline.

There’s also Edith Arana. The former employee, who like Dukes is a black woman, claimed that after five years of working at Walmart in Duarte, California, she sought management training and was told, “there’s no place in management for people like you.”

After leaving the job, Arana told PBS NewsHour in 2004:

I have never seen a man that has, like, struggled, done everything he was supposed to do, worked overtime, sacrificed his family time, come in on days that he wasn’t supposed to—I’ve never seen a man that would go through that and not get what he was promised. But the women, they do it over and over and over again.

The setback in this suit doesn’t mean women can’t go after Walmart for discriminatory practices. We may in the near future see more targeted, smaller-scale litigation (including suits related to racial discrimination)—or perhaps even more grassroots political pressure campaigns on this issue.

But the decision will no doubt discourage legal action by giving many women no choice but to go through the arduous process of filing suit on an individual, not group basis. Meanwhile, Walmart will continue to expand its influence on the workforce gender divide by employing more female employees, and subjecting more women to the indignities of discrimination, gradually eclipsing workers’ civil rights in the shadow of the Big Box industry.

Following the ruling, Debra L. Ness, president of the National Partnership for Women and Families warned in a statement that the case would open the door to more discrimination with impunity in the corporate world:

Today’s ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it. This creation of a potential ‘large company’ exception to our civil rights laws is a perversion of justice.

In other words, the bigger the company, the larger the workforce, the greater the potential for discrimination, the deeper the economic injustice throughout our communities… and the smaller a worker’s chances of getting her day in court.

This article originally appeared on the Working In These Times blog on June 21, 2011. Reprinted with permission.

About the Author: Michelle Chen ’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

Chicago Teachers Vow Renewed Activism Over Revoked Raises

Thursday, June 23rd, 2011

kari-lydersenChicago teachers will earn a total of about $100 million less than expected in the next academic year, as last week the new Board of Education under new Chicago mayor Rahm Emanuel voted to deny 4 percent raises scheduled for each year of their five-year contract.

Some teachers have called the move a violation of the contract, signed in 2007, though it stipulates the board must decide each year whether the district can afford the raises.

As public school teachers are under attack across the country — painted as overpaid, lazy and ineffective by right-wing pundits and belt-tightening administrators — Chicago Teachers Union members say the latest move could mean war.

Rebecca Vevea reported for the Chicago News Cooperative:

The newly seated Chicago Board of Education may have won the first battle with Chicago teachers this week when it rescinded a 4 percent pay raise, but it may also have ended a relatively peaceful era in labor relations and created a more pugnacious adversary … Some teachers and observers say that backing the union into a corner on wages and other key issues could be the spark to reinvigorate the membership.

The school board said the move was unavoidable given the $712 million gap the schools system is facing. But teachers and critics have questioned the validity of that number. The Chicago News Cooperative also previously reported that among other doubts about the figure, the administration was not accounting for $75 million in federal funds still available to the school system.

Under a state law passed last week – another blow to union teachers – 75 percent of the membership would need to authorize a strike. (The law also makes it harder for teachers to get tenure). But teachers union leaders and members have said frustration over the rescinding of promised raises and other developments means they could reach that threshold.

The union also could move to reopen the contract as a whole, which would mean a third party arbiter’s involvement in drafting a revised contract.

In an editorial published in The Chicago Tribune, teachers union president Karen Lewis wrote:

The Chicago Board of Education voted to deny Chicago teachers and paraprofessionals the very modest raise agreed to in the contract. That’s not right — and more important, it’s bad for our students. Breaking promises with teachers, engineers and lunchroom staff is no way to attract and retain top-notch employees.

Chicago public schools teachers reportedly earn an average $69,000 a year. The Chicago Sun-Times reported that Chicago teachers’ pay ranks 37th statewide. In wealthy Chicago suburbs, average public school teacher pay is more than $100,000 a year. In Chicago, the paper said, only one percent of teachers make six figures. It is widely believed that the salaries, along with a general lack of resources and other problems, are why many of the best teachers in Chicago leave for the suburbs or private schools.

Lewis noted that teachers have expressed their willingness to cooperate in finding other ways to save costs. She also wrote:

The city gives away hundreds of millions of dollars in tax breaks to big developers. And for years, Chicago has played fast and loose with our school system’s finances. Tax-increment financing districts take hundreds of millions of dollars away from our schools each year. The city took more than a billion dollars from the pension system and engaged in risky mortgage swaps with big Wall Street banks. If we’re going to get serious about funding shortfalls, we should renegotiate these wasteful deals — not break promises to teachers.

This article originally appeared on the Working In These Times blog on June 20, 2011. Reprinted with permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

S.C. Workers Say Boeing Should Not Break Law to Move Jobs There

Wednesday, June 22nd, 2011

Image: James ParksIn advance of a politically motivated hearing, South Carolina working men and women called today on lawmakers to focus on creating good jobs instead of mounting a political three-ring circus in defense of Boeing lobbyists and CEOs.

The workers spoke prior to a field hearing in North Charleston, S.C., organized by House Oversight and Government Reform Chairman Rep. Darrell Issa (R-Calif.) and attended by South Carolina Gov. Nikki Haley and several Republican members of Congress.

In April, the National Labor Relations Board (NLRB) issued a complaint alleging that Boeing’s 2009 decision to locate a Dreamliner 787 final assembly line in North Charleston represented illegal retaliation against Machinists (IAM) members who work for the company. The NLRB is seeking a court order requiring Boeing to operate the second 787 line, including supply lines, with union workers in the Puget Sound. To learn more and check out the real deal on the NLRB and Boeing, click here and here.

In a statement, Machinists (IAM) Vice President Bob Martinez said:

Based on clear-cut evidence of law breaking by Boeing that’s available on YouTube, federal law enforcers had no choice but to move forward with an investigation. Today’s hearing is about GOP opposition to the very existence of a federal agency that enforces labor law.

Workers emphasized that South Carolinians support Boeing bringing jobs to the Palmetto state but said the corporation should not break the law to do it. “We have heard a lot of talk recently about what is right for South Carolinians from lawmakers, both here in our state and in Washington D.C.,” said Joe Shelley, a mill worker at the Kapstone paper mill in Charleston.

Well, I am here today, as a South Carolinian, to share my opinion about what we need to create good jobs and a stronger economy and it isn’t the political grandstanding you see here today.

Georgette Carr, a Charleston long shore worker said:

South Carolinians want good jobs, including the jobs Boeing has to offer, but employers who break the law, as Boeing is doing in Washington State, need to be held accountable and must respect workers’ rights.

The South Carolina workers emphasized that today’s hearing is part of a broader political assault on working families taking place nationwide. James Johnson, a recently laid off construction worker from Summerville, said:

This is just another example of the extreme political agenda being pushed by politicians around the country to reward corporate CEOs and lobbyists who are rigging the system– not working families. We have seen it in Wisconsin and Ohio, with the attacks on public service workers, in Washington, D.C., with the GOP budget plan to gut Medicare, and now right here in our backyard.

“The right-wing attacks on the NLRB have nothing to do with the facts of the case or the economy, and everything to do with politics,” said Erin McKee, Charleston Labor Council president.  “Working people play by the rules, and so should businesses.”

Yesterday, Rep. Elijah Cummings (D-Md.), the senior Democrat on the Committee on Oversight and Government Reform, and Rep. George Miller (D-Calif.), the senior Democrat on the Education and the Workforce Committee, called on  Issa to delay his demand that the NLRB’s Acting General Counsel Lafe Solomon testify at today’s hearing about the Boeing case, which is currently being argued before an administrative law judge. Top Republicans on both the committees also have requested that Solomon turn over sensitive internal documents relating to the ongoing case.

Check back for coverage of the hearing today.

This article originally appeared on the AFL-CIO blog on June 17, 2011. Reprinted with permission.

About the Author: James Parks’ first encounter with unions was 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 also has 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.

Why Wal-Mart Matters, But Perhaps Less Than You Think

Tuesday, June 21st, 2011

David Weisenfeld

The Supreme Court’s landmark decision on Monday in Wal-Mart v. Dukes understandably garnered front-page headlines in the nation’s newspapers. After all, the case was the largest employment discrimination case in history, dwarfing all other competitors by far with its potential to have included more than one-million current and former female Wal-Mart employees.

But in reality, this mammoth pattern and practice class action was decided December 7, 2010. That’s the day the Supreme Court agreed to hear the dispute. The women who brought this 10-year-old case had won every step of the way. In fact, Ninth Circuit Judge Susan Graber said in her 2010 concurrence in one of the plaintiffs’ victories, “There is nothing unique about this case except for its size.”

As it turned out, however, size mattered. There was no direct circuit split on this issue. Indeed, there was no other case that was truly directly on point. So when the Supreme Court decided to wade into the fray, there was no chance it was doing so to pat the West Coast appellate court on the back for a job well done. Instead, the Court was going to place limits on class actions.

Lead plaintiffs’ counsel Brad Seligman fought hard and fought well throughout this ten-year-old litigation. But a case that could have led to billions of dollars in litigation was going to face a difficult hurdle at the nation’s highest court, and it did. The cries that plaintiffs now cannot proceed in employment class actions, however, could be premature.

The Wal-Mart case included hourly greeters, company vice presidents earning six figures, and female employees in all sorts of jobs between those extremes. The claim by the plaintiffs’ attorneys that Wal-Mart provided “unchecked discretion” to its managers was one that swing voter Anthony Kennedy undoubtedly found difficult to square with the allegation that the company had a top-down culture of discrimination emanating from Wal-Mart’s Arkansas headquarters.

In fact, during the oral arguments Justice Kennedy said as much when he wondered aloud what the unlawful policy was. “It seems to me there’s an inconsistency there,” he said. “If it’s standardless and recordless, then why is there commonality?” If there was any doubt as to the outcome, that comment and question put it to rest.

This was less a case of Wal-Mart being “too big to sue” than the majority of the justices wondering how 1.5-million women at 3,400 stores in widely divergent positions could have something in common besides their gender.

The opinion was notably silent, however, about whether or not the retailer had engaged in sex discrimination. And, it leaves open the possibility of smaller groups of employees banding together, ideally from similar job classifications.

Wal-Mart’s attorney Theodore Boutrous said immediately following the decision, “Under [this] ruling, the way we read it, no class can be certified in this case.” But that seems to be more than a bit of hyperbole.

Will it be tougher for plaintiffs to proceed? Unquestionably. And when they do so, the litigation will be much smaller in scope. But the women and those who represent them have vowed to continue fighting Wal-Mart over what they see as unequal treatment. Smaller class actions against other big companies have succeeded before and likely will again. Those cases just need to be more focused than ever on complying with the Supreme Court’s call for commonality among class members.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011. During that time, he covered every employment law case heard by the Court including Wal-Mart v. Dukes, and also wrote and co-anchored the company’s employment law newscasts. In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

Companies Can’t Discriminate, But Their Managers Can: The Supreme Court Gives Wal-Mart the Win in Dukes Gender Discrimination Class Action Case

Tuesday, June 21st, 2011

Piper HoffmanToday the Supreme Court sounded the death knell for Dukes v. Wal-Mart, the class action lawsuit accusing Wal-Mart of paying and promoting women less than similarly- or less-qualified men. To protect corporations from having to do more to prevent gender discrimination than pop a few politically correct paragraphs into the employee handbook, the Supreme Court resorted to a belabored procedural argument that incentivizes corporations to do as little as possible to prevent discrimination. The five-Justice majority did not rule on whether or not Wal-Mart actually discriminates against women – they didn’t let the case get that far. Instead they shut it down by changing the rules of engagement.

One of the plaintiffs’ central arguments was that Wal-Mart has a policy of leaving promotion and pay decisions to the discretion of individual managers, and that these managers have made discriminatory decisions. If the women suing Wal-Mart had prevailed, every American employer would have been on notice that it is not enough to sit on their corporate hands and allow gender discrimination to take its natural course in this way. Instead they would have had to make it their business to ensure that their managers treated women fairly. But the Court didn’t want that, as the majority feels that “allowing discretion by local supervisors” is “a very common and presumptively reasonable way of doing business.” (In his opinion for the majority Justice Scalia also announces, without citing any evidence, that most managers work carefully to avoid discrimination in their pay and promotion decisions when left to their own devices. That makes it all the more puzzling why the higher one gets in the corporate hierarchy in the U.S., the fewer women there are.)

So the Supreme Court looked to procedure. To bring a case as a class action in federal court, the plaintiffs have to get permission from the judge to proceed as a class. This makes sense: you wouldn’t want someone to be able to file a lawsuit on your behalf without an objective outsider considering whether the lawsuit was in your interest and whether the person filing it would represent you well. To protect you from becoming part of a class action that doesn’t benefit you, plaintiffs have to persuade a judge that they satisfy the requirements of what is known as Federal Rule of Civil Procedure 23 before their lawsuit can proceed as a class action.

One of Rule 23’s prerequisites is that “[o]ne or more members of a class may sue…as representative parties on behalf of all members only if there are questions of law or fact common to the class.” The Wal-Mart plaintiffs clearly alleged common questions of law or fact, including statistical evidence that Wal-Mart pays and promotes men more than women; Wal-Mart’s policy of leaving decisions regarding promotion and (within certain ranges) pay up to individual managers; evidence that Wal-Mart has a uniform corporate culture across its stores; and evidence that Wal-Mart’s culture fosters discrimination against women. These are precisely the kind of “common questions of law or fact” that courts routinely accept as satisfying the Rule 23 “commonality” prerequisite.

The Court used this previously clear “common questions of law or fact” requirement to thwart the Wal-Mart women by redefining the requirement beyond recognition. According to Justice Scalia, “common questions of law or fact” now means that plaintiffs must “demonstrate that the class members have suffered the same injury.” In no universe that I have visited do these two phrases require the same thing.

It’s not clear just how far the Court will take this bizarre new rule. Does “same injury” mean that the plaintiffs must show that every single class member was denied the exact same promotion? Or that each one was underpaid by the same amount? Scalia writes that it does mean that suffering “a violation of the same provision of law” won’t suffice as suffering the “same injury.” This is a remarkable and counterintuitive holding: after this ruling, a group cannot sue their joint employer for violating the same legal right for each one of them. Instead they have to prove that the legal violation harmed them in the same way. This is completely backwards: courts exist to redress violations of the law, regardless of whether those violations cause their victims to suffer in the same or different ways. It is thanks to this procedural backflip that Wal-Mart and other employers can now delegate their way out of being responsible for discrimination in their workplaces.

Arguably before Monday’s Dukes v. Wal-Mart decision, American employers were subject to legal liability if they delegated so much discretion to individual managers that those managers created a pattern of discriminating against women – at least, the four Justices in the minority believe that this was the law. Now employers have every incentive to take their hands off the reins and let managers make pay and promotion decisions based on whatever criteria they choose. This is a major loss for women, minorities, senior citizens, the disabled, and any other group that tends to get the short end of the stick in the workplace. The procedural manipulations required to reach this point have caused a major loss for any group of people that seeks to redress a legal violation through a class action: now each individual will have to pay for legal representation alone and probably forego evidence of violations against similarly situated people. Goliath has won, and it is every David for himself.

This blog originally appeared on PiperHoffman.com on June 21, 2011. Reprinted with permission.

About The Author: Piper Hoffman is a writer and employee-side employment lawyer. She holds degrees with honors from Harvard Law School and Brown University. Hoffman blogs regularly on law and social justice issues at piperhoffman.com.

No Job is Better Than a Bad Job

Monday, June 20th, 2011

Image: Bob RosnerA study out of Australia found that people in poor quality jobs (those with high demands, low control over decision making, high job insecurity and an effort-reward imbalance) had more adverse effects on mental health than being unemployed.

Yep, a crappy job can be harder than no job at all. Holy Fosters.

“The researchers analyzed seven years of data from more than 7,000 respondents of an Australian labor survey for their Occupational and Environmental Medicine study in which they wrote: As hypothesized, we found that those respondents who were unemployed had significantly poorer mental health than those who were employed. However, the mental health of those who were unemployed was comparable or more often superior to those in jobs of the poorest psychosocial quality. The current results therefore suggest that employment strategies seeking to promote positive outcomes for unemployed individuals need to also take account of job design and workplace policy.”

Okay, some of you will take the gratuitous Fosters reference and the Australian sample for the study and blow this off. But you’ll do this to your own detriment.

I believe that this part of “down under” applies perfectly to “up and over” (or whatever words you choose to describe the opposite of “down under”).

Leaving out one important fact, a crummy job allows you to pay your bills in a way that no job usually doesn’t, I’m still reticent to toss this finding into the round file.

I’m not tossing it for one main reason, there is a major belief out there that it is always better to look for a job when you have a job. Because you’ve got both the economic and emotional security to come across better in an interview.

But this finding does cast a shadow on that concept. Because a crummy job can actually deplete your energy to the point that you can’t get hired.

I’m not sure that I’d ever suggest to someone to leave their job to increase the chances they’ll get a new one. But it does suggest that everyone who is unemployed should realize that there are certain advantages that go with the turf. And lord knows, it’s important for anyone who doesn’t have a job to grab every advantage that they can.

Thankfully the researchers didn’t limit their findings to just out of work people. They added a comment directed at employers too. Perhaps employers could be persuaded to be more mindful of the mental health of their workers — happier employees are a benefit to their employers. “The erosion of work conditions,” the researchers noted, “may incur a health cost, which over the longer term will be both economically and socially counterproductive.”

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winningworkplace911.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.

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