Outten & Golden: Empowering Employees in the Workplace

Archive for May, 2012

Older Workers Have Highest Long-Term Jobless Rate

Tuesday, May 15th, 2012

Image: Mike Hall

Older workers who lose their jobs have the highest rate of long-term unemployment compared to any other age group. In 2011, more than half of jobless workers, ages 50 years and older, were out of work for more than six months. The trend continues this year.

Christine Owens, executive director of the National Employment Law Project (NELP), told the Senate Special Committee on Aging this afternoon:

“The prospects are dim for older workers who lose their jobs….They face pointed discrimination when they go looking for work, and they are especially vulnerable to financial instability. Congress needs to take extra steps to address the difficulties that some of the most seasoned members of the workforce are experiencing.”

report from the Government Accountability Office (GAO) also found that long-term unemployment of older workers means significantly reduced retirement income, especially for those defined-contribution retirement plans such as 401(k) rather than traditional guaranteed defined-benefit pensions. In addition, older jobless workers are often forced to tap into those retirement savings.

Sen. Herb Kohl (D-Wis.), chairman of the Special Committee on Aging, said:

“Left unchecked, long-term unemployment among older workers is a problem that will continue to grow as our workforce grays.”

Kohl has introduced the Older Worker Opportunity Act, which would provide tax credits for businesses employing older workers with flexible work programs.

Employers and job search agencies claim they do not discriminate against older workers. But Sheila White, unemployed since she lost her job as manager of a women’s clothing store in January 2010, sent out hundreds of résumés and had 15 interviews. She told the panel she rarely received a response after the interview.

“It then occurred to me that a potential employee could look me up on the Internet and lo and behold there was my age, clearly printed for all to see! I sensed my inability to find work had something to do with age, but I couldn’t prove it. Many jobs required me to enter my date of birth to even complete my online application.”

Owens said that one tool to combat age discrimination is the Protecting Older Workers Against Discrimination Act that would preserve the rights of older job applicants and employees who are turned down for jobs or treated differently at work in part due to their age.

She also called for the passage of the Fair Employment Opportunity Act that would prohibit employers and job recruiters from excluding the unemployed from job consideration simply because of their unemployment status. In the past few years, many firms’ ads and websites state that jobless workers will not be considered. As Owens said:

“Because long-term unemployed workers are disproportionately older, older workers are more likely to be affected by exclusionary hiring practices based on employment status.”

Click here for the full testimony from all the witnesses.

This blog originally appeared in AFL-CIO on May 15, 2012. Reprinted with permission.

About the author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL-CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

Getting Heard on Workplace Violence

Monday, May 14th, 2012

Image: Richard NegriI was recently with the Nurse Alliance of California for its annual Legislative Conference. It is always an honor for me to share information with nurses about online tools we can and should employ as activists. Although I think my breakouts at the conference went over well, one of the themes of the conference — which many of you know I’ve been somewhat absorbed with — is workplace violence and workplace violence prevention. My goal here is to tie in information about this important subject matter and couple it with the online tools in our educated union member tool box.

With the advent of workplace violence among the top issues we face every day, would you agree that it is incumbent on us to start up and/or maintain the drumbeat about this discussion?  When one of our sisters or brothers gets brutally beaten or killed on the job, our reaction is immediate and strong, but how can we get to talking up a storm on this every day of the week? In part, this is about getting us mobilized around a few entry points to the discussion; in part it is to help us focus on some online venues we can take advantage of to get the conversation off the ground. Are you in this with me?

What I Know…

If you have been a nurse for a couple of weeks or a nurse for the last 30 years, violence on the job is never very far from you. Unfortunately, there are not a lot of legal protections in place. The Occupational Safety and Health Administration (OSHA) recognizes workplace violence as a hazard, but has no federal regulations in place requiring employers to deal with the problem. While some states, like New York, have some laws in place (thanks to the Public Employees Federation (PEF) and other unions) if there is no accountability, the laws are just bundles of paper in a drawer somewhere.

Various papers, studies, scholars, union leaders, and other folks reiterate this point: Workplace violence is an epidemic that many outside our facilities or day-to-day life have no clue even happens, much less how often it happens. More healthcare professionals are either assaulted or killed on the job than any other profession or trade.

For many of us, it is tremendously difficult to talk about something if we don’t have a concrete definition of what “it” is. What does that mean? We can all talk about what we think and feel after a co-worker is beaten on the job. We can all attend rallies, services, light candles, shake our heads … but what is “it”?  What is the definition of workplace violence?

Jonathan Rosen, MS CIH, Director of the Occupational Safety & Health Department for the New York State Public Employees Federation (PEF), facilitated an amazing breakout session on workplace violence at the California legislative conference. One slide in his presentation defined workplace violence very succinctly:  “Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the work setting.”

Maybe as you read that, you thought about the countless times you felt threatened, were threatened, or were verbally abused at work. It’s likely that more than half of you have had first-hand experience with violence on the job.

This is probably not breaking news, but there are papers and studies out there that reveal that healthcare providers often do not report violence that occurs on the job. Another of Jonathan’s slides cited a National Crime Victimization Survey: “58% of harassed employees do not report incidents. Fewer than than half of workers report assault to the police. Only 25% of rapes at work are reported.”

Having the Discussion and Reporting the Problem(s)

Government statistics underestimate the true extent of violence at the workplace because:

* Data is collected on “battery” or incidents resulting in physical injury or death. Threats, verbal threats, and harassment are not reported to government agencies.

* In some jobs, assaults are so common that they are dismissed as “part of the job.”

* Other possible sources of information about violence — like hospital records or police reports — often fail to provide information about whether the injury was or was not work-related.

* Employers discourage employees from filing workers’ compensation claims for assault. In addition, many injuries do not meet the criteria for receiving workers’ compensation.

The reasons why our workplaces at times explode into violence add up to a growing list. According to the Safe Work, Safe Care Project, patients can become violent as a result of mental disorders, substance abuse, a past history of violence, head injuries, and confusion. The Project’s list includes about twenty issues — these are just the top five.

But why are we hesitant to report instances of violence on the job?  Many of us may have heard about the OSHA General Duty Clause — but, what is it?  It’s important!

OSHA’s General Duty Clause and EVERY Employer’s RESPONSIBILITY!

Every employer in the United States is responsible for creating and maintaining a safe and healthy workplace for its employees. The good news for us is this:  THERE ARE NO EXCEPTIONS.  That, sisters and brothers, that is the law.  It is your right as a worker.

Section 5(a)(1) of the Occupational Safety and Health Act requires that an employer:  “shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

This is what we refer to as the OSHA General Duty Clause.

In September 2011, OSHA issued procedures for its field staff to use when responding to incidents and complaints of workplace violence. We believe that this directive will help inspectors use the General Duty Clause when they can.

Start the Conversation with Thousands and Thousands of Nurses

Here are our talking points:

1) Workplace violence defined: “Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the work setting.”

2) The Department of Justice says that fewer than half of all non-fatal violent workplace crimes are reported to the police.

3) Some known causes for under-reporting workplace assaults include:

“Part of the job” syndrome

Fear of blame or reprisal

Lack of management/peer support

Feeling it’s not worth the effort

4) OSHA and the OSHA General Duty Clause:

There are no OSHA standards regarding workplace violence (ain’t that something?) — however…as mentioned, in September 2011 OSHA issued directives for field staff when investigating incidents of workplace violence.

And …you have the right to a place of employment that is free from recognized occupational hazards which cause or are likely to cause serious harm, illness, or death.

5) Violence is recognized occupational hazard!

This blog originally appeared in Union Review on May 14, 2012. Reprinted with permission.

About the author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

CHARTS: Economic Mobility Is Stronger In Union States

Friday, May 11th, 2012

waldron_travis_bio

The ability of American workers to be upwardly mobile in the economy depends heavily on where they live, according to a state-by-state analysis from Pew Charitable Trusts. The study, the first of its kind, found that workers in a group of states largely clustered in the Northeast and Midwest are more likely to achieve upward mobility, while workers in southern states are far less likely.

For the most part, the states in each group differ on one major characteristic: the states where upward mobility is more likely are almost all union states, while the states where mobility is less likely almost all are not. Of the eight states that outperform the national average for upward economic mobility, seven are union states, with Utah the lone exception. Eight of the nine that underperform the national average, however, are so-called “right to work” states, with Kentucky the only exception:

mobilitymapChart via USA Today

When relative mobility is considered, union states look even better. Every state but one (Utah) that outperforms the national average on relative mobility, defined as the percentage of residents starting in the bottom half of the national distribution who move up 10 or more percentiles in a 10-year period, is a union state. Meanwhile, 14 of the 15 states that come in below the national average are right-to-work states, with Missouri the only exception:

mobilitymap2

Chart via Pew Charitable Trusts

Though the study didn’t find (or attempt to find) a direct correlation between union representation and mobility, an economist at the W.E. Upjohn Institute for Employment Research in Michigan told USA Today that higher mobility there is likely linked to higher wages in manufacturing and public sector jobs, both of which tend to be more heavily organized. Those ties also exist in the other union states, which rely more on manufacturing than the right-to-work states.

As ThinkProgress has previously noted, unions played a significant role in the construction of the American middle class, boosting the mobility of lower-income workers. The decline in union representation, meanwhile, correlates closely with a sharp rise in income inequality over the last 40 years. Other studies have shown that workers who join unions earn higher wages and are more likely to have health and retirement benefits, and that union membership increases the likelihood of upward economic mobility.

This blog originally appeared in Think Progress on May 10, 2012. Reprinted with permission.

About the author: Travis Waldron is a reporter/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Travis grew up in Louisville, Kentucky, and holds a BA in journalism and political science from the University of Kentucky. Before coming to ThinkProgress, he worked as a press aide at the Health Information Center and as a staffer on Kentucky Attorney General Jack Conway’s 2010 Senate campaign. He also interned at National Journal’s Hotline and was a sports writer and political columnist at the Kentucky Kernel, the University of Kentucky’s daily student newspaper.

GOP Rep Who Voted Down ENDA Claims Gay People Are Already Protected From Employment Discrimination

Thursday, May 10th, 2012

Scott Keyes

StasserAnnieRose

It is not uncommon to believe that someone shouldn’t be fired for their sexual orientation — in fact, ninety percent of voters mistakenly say that federal law protects LGBT people employment discrimination.

It turns out that elected officials hold the same misconception — even ones who voted against such measures. Rep. Kenny Marchant (R-TX) today told ThinkProgress that he believes non-discrimination protections are in place for gay workers and that no “citizen of the United States should be discriminated against for any reason:”

STRASSER: Do you believe in other protections for gay people outside of marriage, things like hospital visitation or protection from being fired in the workplace?

MARCHANT: I don’t think any citizen of the United States should be discriminated against for any reason.

KEYES: So if there were legislation saying it’d be illegal to discriminate and fire someone for being gay…

MARCHANT: Those laws are already on the books.

KEYES: I don’t think that’s a law right now.

MARCHANT: Well, I’m not going to stand here and argue with you. I believe that those protections are afforded every citizen of the United States. Whether those laws are enforced or not, that’s up to the Justice Department. I believe that those rights are on the books.

Watch it:

Rep. Marchant mistakenly thinks gay workplace discrimination is already illegal

Marchant seems to have forgotten about the role he played in blocking legislation that would have enacted the protections he championed today. In 2007, Marchant voted against the Employment Non-Discrimination Act, legislation that would have protected LGBT people from workplace discrimination.

In actuality, an employer is able to fire someone for being gay in 29 states and for being transgender in 34 states, and a huge number of LGBT workers have acknowledged discrimination at work.

Luckily, Rep. Marchant will get the opporunity to renew his commitment to fight discrimination of LGBT workers. A bipartisan group of senators released a letter today calling on Congress to hold hearings about putting a non-discrimination law in place. The Senate Health, Education, Labor & Pensions Committee will take up the issue on June 12.

This blog originally appeared in Think Progress on May 10, 2012. Reprinted with permission.

About the author(s): Scott Keyes is a reporter for ThinkProgress.org at the Center for American Progress Action Fund. Scott went to school at Stanford University where he received his B.A. in Political Science and M.A. in Sociology. He has appeared on MSNBC and TBD Newstalk TV and been a guest on many radio shows. His writing has been published by The Atlantic, Politico, the Christian Science Monitor, and the Chronicle of Higher Education. Scott comes to DC from southwest Ohio, a state very near and dear to his heart.
About the author(s): Annie-Rose Strasser is a Reporter/Blogger for ThinkProgress. Before joining American Progress, she worked for the community organizing non-profit Center for Community Change as a new media specialist. Previously, Annie-Rose served as a press assistant for Representative Debbie Wasserman Schultz. Annie-Rose holds a B.A. in English and Creative Writing from the George Washington University.
The thoughts of this author are the author’s alone and do no represent those of Workplace Fairness

OSHA Warns Hyatt on Housekeeper Injuries

Wednesday, May 9th, 2012

Image: Mike Hall

The Occupational Safety and Health Administration (OSHA) has told Hyatt Hotels what the hotel chain’s housekeepers have been telling it for years—“Hyatt Hurts.”

OSHA issued a formal Hazard Alert letter telling Hyatt that its housekeepers face ergonomic risks every day on the job. The letter outlines steps Hyatt can take to reduce housekeeper injuries.

Pamela Vossenas, UNITEHERE!’s health and safety director, says by issuing the Hazard Alert at a corporate level:

“OSHA is telling Hyatt that the dangers of housekeeping work are real, that there are reasonable solutions and it’s time for Hyatt to put them into practice across the country.”

The letter follows a yearlong OSHA investigation into injury complaints workers filed in 2010. Hyatt once told federal investigators that the workers’ injuries could have been the result of dancing, not lifting heavy mattresses and cleaning as many as 30 rooms a day, as some Hyatt housekeepers do. In one filing, Hyatt wrote:

“The close association of housekeeping with routine life also raises difficult questions about causation. One’s injury is at least as likely to have occurred during non-work activities like sports, dancing or performing routine chores in one’s home.”

OSHA also says Hyatt must keep records on injuries suffered by sub-contracted workers at its hotels.

Maria Soto, a housekeeper at the Grand Hyatt in San Antonio who has been injured cleaning rooms, says:

“For years, we have asked Hyatt to make simple changes that would ease the toll on our bodies. Now our voices are being heard, and the federal government is joining us in calling on Hyatt to make our jobs safer.”

Read the full Hazard letter here and find out more from Hyatt Hurts here.

This blog originally appeared in AFL-CIO on May 8, 2012. Reprinted with permission.

About the author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL-CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

New Research Meta-Analysis Makes Compelling Case For Nondiscrimination Protections

Tuesday, May 8th, 2012

Our guest blogger is Crosby Burns, Research Associate for LGBT Progress.

Today the Center for American Progress, the Human Rights Campaign, and the Williams Institute at the UCLA School of Law released a comprehensive database of research documenting the immediate need for federal policies that prohibit discrimination on the basis of sexual orientation and gender identity. This database includes nearly 40 documents totaling 680 pages of research from the ACLU, the Center for American Progress, the Human Rights Campaign, the National Center for Transgender Equality, the National Gay and Lesbian Task ForceFreedom To Work, and the Williams Institute.

The findings of the research contained in this database are consistent and conclusive: LGBT workplace discrimination is a pervasive and persistent problem that requires an immediate solution. Additionally, this research establishes a strong business case for workplace nondiscrimination laws and policies, examines the potential impact of an LGBT nondiscrimination executive order for federal contractors, and highlights strong public and voter support for workplace fairness.

Given these realities, Congress should pass the Employment Non-Discrimination Act and President Obama should sign an executive order requiring federal contractors to have LGBT-inclusive non-discrimination policies. These actions would bring quick relief to the hundreds of thousands of LGBT workers who face employment discrimination in our country today.

Nondiscrimination-Laws-Map

This blog originally appeared in Think Progress on May 7, 2012. Reprinted with permission.

Young Workers Struggle to Find Jobs, Pay Student Debt

Tuesday, May 8th, 2012
Credit: Joe Kekeris

Credit: Joe Kekeris

“For Most Graduates, a Grueling Job Hunt Awaits,” The Wall Street Journalwrites today. Over the weekend, The New York Times sounded the alarmabout employers’ growing use of unpaid internships in fields that typically have never exploited free labor.

So, how bad is it for young workers? According to the Economic Policy Institute (EPI), over the past year

“the unemployment rate for young high school graduates averaged 31.5 percent and the underemployment rate averaged 54.7 percent. For college graduates, the unemployment rate averaged 9.4 percent over the last year, while the underemployment rate averaged 19.1 percent. Unemployment rates for young African American and Hispanic high school and college graduates were higher than overall rates.”

Between 2000 and 2011, the real wages of young high school graduates declined by 11.1 percent, and the real wages of young college graduates declined by 5.4 percent. Entering the labor market during a downturn can have long-term scarring effects on young workers, in the form of reduced earnings, greater earnings instability and more spells of non-employment over the next 10 to 15 years, according to a recent EPI briefing paper, “The Class of 2012: Labor Market for Young Graduates Remains Grim.”

Compounding their economic grief, young workers face huge student debt loads, a burden that only will increase if Congress doesn’t act ASAP.

(If you’re in Washington, D.C., join young workers on Capitol Hill to meet with key offiicals and tell them what young people are saying about student loans, unemployment, access to higher ed and affordable health care. Click here to hop on a bus to the Hill and to find out more.)

Economist Heidi Shierholz, one of the report’s authors, says the solution to the crisis for young workers is the same as that for all the more than 14 million jobless Americans:

“The policies that will most effectively help young workers right now are ones that generate strong job growth overall, like fiscal relief to states, substantial additional investment in infrastructure and direct job creation programs in communities particularly affected by unemployment.”

This blog originally appeared in AFL-CIO on May 7, 2012. 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.

Chicago Lunch Ladies Push for Fresh Food for Students…and Job Security

Friday, May 4th, 2012

kari-lydersen

School cafeteria food is the butt of many jokes. Despite national attention and student activism aimed at making school lunches tastier and healthier, and federal regulations mandating more fruits and veggies that take effect July 1, word on the ground is that it still leaves much to be desired, to say the least. Prepackaged highly processed salty and sugary foods still make up a disproportionate part of the menu. And ironically, students, teachers and “lunch ladies” around the country have reported, many of the healthier new additions to cafeteria menus are going uneaten.

The union UNITE HERE Local 1, which represents 3,200 cafeteria workers in Chicago public schools, says this is the case in the more than 600 schools where they work. And they say school officials could have much more success with adding healthier options to the menu that students will actually eat if they consider more input from the cafeteria workers who talk with and observe the kids on a daily basis.

Such worker input is now enshrined in a contract agreement signed between the union and the Chicago Board of Education this week, a measure the union is calling “landmark.” It also addresses the school district’s plans to increasingly replace actual cooking in many schools with “warming kitchens” where pre-made food would be warmed up.

The union says that according to the school district’s 2008 bid solicitation for pre-made food, 178 elementary schools currently have only warming kitchens and – as of that time – that was the plan for all new elementary schools. UNITE HERE says pre-made food is bad for kids and also for cafeteria workers’ job security. UNITE HERE senior research analyst Kyle Schafer said that hundreds of jobs could have been at risk if the school system went through with its previous plans for more warming kitchens.

Schafer told me:

We’ve lost a number of jobs in recent years – obviously it takes less folks to heat a meal than to make a meal from scratch. That’s how the history of institutional food service in schools has been going — the move to more and more processed foods has largely been one to cut labor costs, not because anyone thought the food was better for the kids. This is both a more traditional labor issue and also a food issue in terms of how it affects the kids.

The new five-year contract agreement stipulates that no full kitchens will be replaced by warming kitchens in existing schools, and the school board must consult with the union—giving them a chance to organize an opposition campaign—if they plan to build a new school with only a warming kitchen.

Barbara Collins, a union member with more than 20 years working in school cafeterias, told me the provisions for worker input in the new contract are crucial to letting workers give kids food that is both healthy and that they will actually eat. She noted that recent switches for health reasons – like a shift from fried to baked potatoes – have been  nearly pointless since many kids won’t eat baked potatoes. Baked chicken has fared better among students, she noted. Such input from the workers who cook 77,000 breakfasts and 280,000 lunches for Chicago students each day will now be considered in developing new menus.

“It’s kind of hard to feed children nowadays—it’s hard to please them,” Collins told me. “Our committee is going to come together and see if we can come up with some good ideas for the children.”

The contract agreement capped a months-long campaign including rallies in January and April and two reports: “Feeding Chicago’s Kids the Food they Deserve” in January – based on a survey of 436 school kitchen workers, and “Kitchens Without Cooks.” As Collins indicated, the “Feeding” report found that 42 percent of workers thought students were not eating the new healthier menu items.

Half of the respondents also said principals never eat cafeteria food – a finding that is not surprising but nonetheless is a bad sign. Perhaps most disturbingly, that study found that only 39 percent of cafeteria workers felt they could report concerns about food quality or safety to parents or others without fear of discipline, meaning almost two-thirds would likely stay silent even when they observed potential problems.

A Chicago public schools teacher and parent, Sarah Wu, blogged anonymously — fearing for her job — for a year about horrendous cafeteria food. The Chicago Tribune described the offerings she consumed, often feeling sick as a result:

…the surprising parade of plastic-wrapped, processed foods that appeared on her tray each day — from bagel dogs, popcorn chicken and Salisbury steak to green gelatin, peanut butter and jelly bars, and blue raspberry ice pops…

Kitchens Without Cooks noted that nine out of 11 new elementary schools built since 2006 under a $1 billion program for modern schools include only warming kitchens. That means, the report says, that 81 percent of new elementary schools compared to 36 percent of older elementary schools serve frozen re-heated food.

The report also quotes workers in various schools that have switched from cooking to “warming,” saying that students used to eat the food more when it was freshly-cooked. They say kids are more likely to throw away the food that resembles “TV dinners” – even if these meals are theoretically healthier “improvements” on the old fare.

The Kitchens Without Cooks report quotes Tiffany Guynes, who is a kitchen worker at and also has a son attending the new Langston Hughes elementary school on the city’s south side. The study  says Guynes often packs a lunch for her son instead of letting him eat the food she serves the other students.

The first day I walked into the cafeteria two questions came to my mind. Where is the stove? And where are the cooks? We don’t have either at Langston Hughes…I wouldn’t eat a lot of this food. If it’s not good enough for me, it’s not good enough for my son.

The reports jibed with other media reports, including a November 2011 report by The Chicago Tribune that participation in school meal programs had dropped to 70 percent since healthier options were added, even though 82 percent of students were eligible for subsidized meals.

Collins—whose four kids and 20-plus grandkids went to or are going to Chicago Public Schools —thinks the new contract is a start in helping both cafeteria workers and kids. She said:

My crew, we take good care of the children. If a child is hungry they really can’t learn. If we feed them properly breakfast and lunch, they’ll do better. I want to see a smile on their face.

About the author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist writing for publications including The Washington Post, the Chicago Reader and The Progressive. Her most recent book is Revolt on Goose Island.

Meal and Rest Period Litigation Given Another Boost: Supreme Court Reverses Court of Appeal’s Kirby v. Immoos Fire Protection Decision Which Could Have Ended Meal-Rest

Thursday, May 3rd, 2012

1In Kirby v. Immoos, 113 Cal.Rptr.3d 370, the Court of Appeal held that an employee not prevailing on a meal-rest claim (or, even one who settled the claims) could be subject to paying the employer’s attorneys’ fees under Cal. Lab. §218.5, which provides for two-way fee shifting. The consequences of this decision, had it been allowed to stand, would have been disastrous – no employee could risk paying an employer’s attorneys’ fees to pursue claims arising from meal/rest period violations. The plaintiff’s claims might amount to $5,000 and the employer’s fees might amount to 100X that much or more – amounts that would bankrupt the average, hourly, non-exempt worker. Since the California Supreme Court and California Legislature have repeatedly emphasized the importance of promoting wage/hour litigation under the Labor Code (see, e.g., Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094), the Court of Appeal’s wage/hour claim-killing decision seemed out of line.

Fortunately, this morning, the Supreme Court, in Kirby v. Immoos(http://www.bryanschwartzlaw.com/Kirby_v_Immoos.pdf), rejected the Court of Appeal’s incongruous decision, holding as follows:

As we noted in Murphy, “[m]eal and rest periods have long been viewed as part of the remedial worker protection framework,” and low-wage workers are the “likeliest to suffer violations of section 226.7.” (Murphy, supra, 40 Cal.4th at pp. 1105, 1113-1114.) In giving no indication that section 218.5 applies to meal or rest break claims when it enacted section 226.7, the Legislature could reasonably have concluded that meritorious section 226.7 claims may be deterred if workers, especially low-wage workers, had to weigh the value of an “additional hour of pay” remedy if their claims succeed against the risk of liability for a significant fee award if their claims fail. In light of the statutory text and the legislative history of section 218.5 and section 226.7, we conclude that section 218.5’s two-way fee-shifting provision does not apply to section 226.7 claims alleging the failure to provide statutorily mandated meal and rest periods.

Kirby, Slip Op. at p. 17.

The Court did not accept the employees’ invitation to treat meal/rest period claims as claims for a “minimum wage” under Cal. Lab. §1194, which expressly precludes two-way fee-shifting for minimum wage and overtime claims. The Court reasoned:

As a textual matter, if plaintiffs were correct that a “legal minimum wage” refers broadly to any statutory or administrative compensation requirement or to any compensation requirement based on minimum labor standards, then section 1194’s reference to “legal overtime compensation” would be mere surplusage. For, under plaintiffs’ reading, overtime compensation would already be encompassed by the term “legal minimum wage.”

Slip Op. at p. 8.

However, the Court left for another day the battle over whether one-way fee-shifting for employees is available for meal/rest claims in suits where they are alleged alongside overtime and minimum wage claims (Slip.Op. at p. 18) –i.e. in most cases where these claims are alleged. This battle – the sequel to Kirby v. Immoos– will most likely be where the rubber meets the road. In the meantime, employees and their advocates should continue to seek attorneys’ fees for meal-rest claims alleged alongside overtime and minimum wage claims under §1194. We will also continue to seek fees under Cal. Code Civil Procedure §1021.5, which allows fee-shifting in certain cases brought to vindicate the public interest – like meal/rest litigation so often does.

If you have questions about your meal or rest period claim, contact Bryan Schwartz Law.

Nothing in this article is intended to form an attorney-client relationship with the reader or to provide legal advice in a particular case, but is intended as commentary on a matter of general interest.

About the author: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

We Remember the Dead and Fight Like Hell for the Living!

Wednesday, May 2nd, 2012

Image: Richard Negri

Workers around the world commemorate April 28th as a day of remembrance honoring those who’ve died or been seriously injured on the job. The date for Workers Memorial Day coincides with Congress passing the Occupational Safety and Health Act forty-one years ago. Though the Act remains a promise that every worker deserves the right to a safe job, we all know that we have a lot of work ahead us.

The SEIU Nurse Alliance has taken the lead in focusing on workplace violence prevention with the union, as there have been a number of our healthcare members who were killed or severely injured due to violence from patients.

Donna Gross, Cynthia Palomata, Elenita Congco, and Stephanie Moulton, all healthcare providers, were killed on the job in the last twelve months. Countless others have been physically assaulted or verbally abused and bullied at work.

Unsafe and harmful working conditions are obviously not limited to healthcare providers. The insidiousness of unsafe and violent conditions crosses over into every trade and every sector. Thus, “an injury to one is an injury to all!”

A recent study estimates that the loss of workers’ lives and livelihoods costs the U.S. economy at least $250 billion a year. But how do you put a price tag on a worker’s life, their arm, leg, finger? How do you put a price on coming home from work with an infectious disease you didn’t wake up with?

While the official statistics on workplace safety shows some improvement, one unjust death of one worker in any trade or sector is simply too much. In addition, we only know the “how” about unsafe workplace environments from what the Bureau of Labor Statistics (BLS) tells us. The problem there is that it is widely known that the BLS wildly underestimates the problem. In fact, the true toll of job injuries is known to be two to three times greater — about 8 million to 12 million job injuries and illnesses each year. That’s just too much.

How is it possible that the BLS reporting is so far off the mark? The BLS arrives at the specifics around workers’ injuries and deaths by way of logs OSHA receives from EMPLOYERS.

The reporting process is never accurate because so many workers, especially nurses, fail to file reports with their facilities. Many healthcare workers accept that injury and untimely death on the job comes with the territory — many healthcare providers would rather lift the weight of an American-made sedan each shift than file reports — or is that really the case?

It is a difficult question because our employers frequently persuade us to think that our injuries are not as bad as we think, or, in many cases, just not worth reporting. The culture of each facility may vary from house to house, but at the end of the day, if accurate reporting isn’t being done, accurate changes won’t come.

Still, there’s more we need to wrap our heads around. Some employers discourage reporting through the use of incentive programs, like Safety Bingo, that reward workers for not reporting injuries or threaten to fire workers for reporting injuries or illnesses. That’s not good. What do we do about that?

For one, we should make it our business to learn what our rights are in the workplace — which a great many of us already do. Second, we need to consider taking the time and effort to report injuries and illnesses whenever there is one. Let’s not forget that our employers are usually just fine handing in near-blank OSHA reports.

Can we pledge to do our best to eliminate all violence and other hazards on the job so that every SEIU member and all workers can go home safely to their families at the end of the day?

President Mary Kay Henry said it very succinctly, “The right to a safe, secure workplace should be as fundamental as the right to have a voice on the job. When nurses, home care workers, and other working people go to work every day, we should never have to worry about getting hurt or losing our lives. On this Workers Memorial Day, we honor all workers, including SEIU members, who were injured or killed while trying to support their families by simply doing their job. It is our duty to these workers and their families to fight to ensure that no one will have to endure that pain again.”

To ensure that our families will not have to endure the pain of losing us on the job, and to ensure that we continue to work safe and exercise our rights, we will need to remember the dead and fight like hell for the living.

About the author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

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