Outten & Golden: Empowering Employees in the Workplace

Archive for December, 2012

Extended Emergency Unemployment Compensation Will Expire for 2.1 Million Recipients on December 29

Friday, December 28th, 2012

This morning Meteor Blades reported that Jobless benefits claims drop again, but numbers could be skewed by holiday closures of state offices, including this sad news for those whose base unemployment payments have been used up:

Come Saturday, if the president and congressional leaders do not come to agreement on fiscal matters, some 2.1 million people will lose their benefits under the federal extensions. If those extensions are not renewed in the new year, an estimated 900,000 more people will lose their benefits by April 1. Some economists say that such a cut-off combined with the end of the payroll tax cut could, by themselves, throw the nation back into recession.

Arthur Delany picks up this theme in Congress Almost Certain To Blow Unemployment Deadline, telling us even if the special House session convened by Speaker Boehner should unexpectedly pass a solution to budget crisis, it will be too late for the 2 million unemployed who are receiving exgended benefits under the  Emergency Unemployment Compensation act:

Democrats have demanded a full reauthorization of emergency benefits through next year, which would cost $30 billion, according to the Congressional Budget Office. The current regimen of benefits provides up to 47 weeks in states with high unemployment rates, for a combined 73 weeks of state and federal compensation. Jobless workers in only nine states are eligible for the full duration.

Republicans have been quiet about the benefits, which many observers consider a sign they won’t be a deal-breaker for the GOP. President Barack Obama included unemployment compensation when he called on Congress to pass a scaled-down “fiscal cliff” bill late last week.

Representative Steny Hoyer (D-MD) says:

“I’ve never seen a public as energized or as knowledgeable about an issue as they are about the fiscal cliff,” Hoyer said. “I don’t mean that they know every paragraph, sentence, and ramification of the failure to stop going over the fiscal cliff, but they know it will not be positive. They know it will have a negative impact on the economy and they know it will have a negative impact on them and their families. And they are expecting us to be here to work, and we’re not.”

One advantage of rallying public compassion and outrage to extend these benefits as a stand alone bill, on its own merits, starting in the Senate, might be that we may end up having to make less severe concessions to the intransigent House Republicans to get an extension than we’ve apparently offered to House Speaker Boehner in the rejected “grand bargain” which is reported to have included chained CPI which would have cost seniors vastly more in human suffering and start the steady compounding reduction of the value to recipients essentially forever.

I hope Senate Majority leader Harry Reid proposes a stand alone bill extending these benefits we can rally behind, as well as as many other bills combining this with $250,000 threshold tax cuts, and Medicare doctors fix.  My hope is that if we are willing to play hardball, and rally public support around each component of the “fiscal cliff” we may get through the whole situation with the least possible damage to our common good and the constituencies that depend on the Democratic Party to defend their interests.

This post was originally posted on The Daily Kos on December 27, 2012. Reprinted with Permission.

Employers: Be Careful What You Wish For - Your Motion to Compel Arbitration Can Lead to Expensive, Class-Wide Arbitration

Thursday, December 27th, 2012

In the wake of ATT Mobility v. Concepcion and Stolt-Nielsen v. AnimalFeeds,* many employers have sought to enact new arbitration agreements or to enforce arbitration provisions in older agreements to eliminate their employees’ ability to come together when seeking to vindicate their rights to enforce statutory protections for workers. Employers should be careful what they wish for, in seeking to compel arbitration. They may indeed wind up in arbitration – but unable to strike class allegations, and required to pay the full and exorbitant costs of class-wide arbitration. 

In a case on which Bryan Schwartz Law serves as local counsel for Richard J. Burch of Bruckner Burch, in Houston, Texas, the employer is now feeling the danger of a Stolt-Nielsen-based strategy seeking to compel individual arbitration in a putative, wage-hour class action. In the Laughlin v. VMWare case, in which VMWare employees assert they were misclassified as exempt employees and denied overtime and other compensation to which they were entitled, the company moved to compel arbitration based on an agreement which did not specifically provide for class-wide arbitration. 

Judge Edward Davila of the Northern District of California struck some of the more offensive provisions of the arbitration agreement under Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, such as a provision which would have required Plaintiff to share the costs of arbitration. However, Judge Davila found these unlawful provisions severable (i.e., refused to kill the whole arbitration agreement). Perhaps most importantly, though, Judge Davila referred to the arbitrator the decision on the Stolt-Nielsen argument – namely, as argued by VMWare, the notion that class-wide arbitration cannot proceed where the parties’ arbitration agreement did not expressly consent to class arbitration. His initial decision from early 2012 is available here: 

http://www.bryanschwartzlaw.com/VMWare.pdf

In arbitration, AAA arbitrator LaMothe then rejected the employer’s Stolt-Nielsen motion to strike class allegations, notwithstanding the fact that the agreement did not expressly give permission to bring class allegations, finding the parties’ agreement intended to encompass all claims by Plaintiff Laughlin, including her class claims. The AAA order is available here: 

http://www.bryanschwartzlaw.com/Laughlin.pdf

In the last 18 months, numerous other arbitrators from JAMS, AAA, and other nationwide arbitration services have likewise denied motions to strike class allegations, employing similar reasoning. 

On review, Judge Davila confirmed the arbitrator’s partial final clause construction award allowing class allegations to proceed, meaning – in light of all the foregoing – that VMWare will now be forced to arbitrate a putative class action, and will be forced to bear all of the costs of doing so: 

http://www.bryanschwartzlaw.com/VMWare-12-20-12.pdf

Be careful what you wish for, employers. You may find that sometimes, allowing employees their day in court is better than the alternative. 

DISCLAIMER: Nothing in this article is intended to form an attorney-client relationship with the reader. You must have a signed representation agreement with the firm to be a client. 

*See our numerous prior blog posts relating to the subject of arbitration class waivers in light of Concepcion andStolt-Nielsen, including: http://bryanschwartzlaw.blogspot.com/2012/09/california-supreme-court-grants-review.html

http://bryanschwartzlaw.blogspot.com/2012/09/wage-and-hour-class-actions-sky-is.html;

http://bryanschwartzlaw.blogspot.com/2012/01/landmark-decision-by-national-labor.html

http://bryanschwartzlaw.blogspot.com/2011/05/civil-rights-lawyer-and-employee.html.

This post was originally posted on December 26, 2012 on Bryan Schwartz Law. Reprinted with Permission.

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

As New Jobs Return, Employers Slash Wages

Wednesday, December 26th, 2012
New data has shown that while a majority of jobs eliminated during the downturn were in what we describe as the middle range of wages, the great majority of jobs added as the economy improves were low paying jobs, reported Katherine Rampell in the business section of the New York Times on Friday, August 31, 2012. This was documented in a study done by the National Employment Law Project.
 The study by Annette Bernhardt examined 366 occupations followed by the Labor Department. Bernhardt separated them into three equal groups by wages, with each representing a third of American employment in 2008.
     The middle third consisted of jobs like construction, manufacturing, and information. These jobs paid median hourly wages of $13.84 to $21.13. Over 60% of these jobs were lost during the recession. When the middle third jobs returned, they represented only 22% of total employment growth.
      In the category of higher wage occupations, those that had a median wage of $21.14 to $54.55 reflected only 19% of job losses. However, when growth in the economy began, only 20% of new jobs were the result of the upturn. This was only a 1% increase which doesn’t even cover new entrants into the labor force.
     Low wage jobs with median hourly wages of $7.69 to $13.83 accounted for 21% of job losses during the downturn. The startling fact is that low wage jobs now constitute 58% of all job growth. The jobs with the fastest growth were retail sales at a median wage of $10.97 per hour. At this salary, workers would be eligible for food stamps.
      Each category has grown by more than 300,000 workers since June 2009. Many of these new paying jobs were taken by recent high school and college graduates who were previously unemployed. Others were taken by older workers who formerly had jobs that paid much more, who were desperate.
     Mid-wage and middle class jobs have been disappearing at a rapid rate. Some of this is due to automation, but the bulk of the job loss is the result of employers taking millions of jobs overseas to low wage paying countries.
     At the same time, corporations and their Republican robots are passing so called “Right to Work” legislation which further erodes the wage structure. The labor movement, the trade unions, and their progressive allies are the only institutions that can bring back middle class livable wages.
This post was originally posted on Union Review on December 19, 2012. Reprinted with Permission.
 
About the Author: Seymour Slavin is an Independent Nonprofit Organization Management Professional at Union Review.

11 Scrooge Approved Employee Motivation Ideas You Should Never Use

Monday, December 24th, 2012

What is the #1 way to increase motivation in the workplace? Well, we have our pet motivational theories and ideas, but we wanted to explore some of the horrible, terrible, Scrooge-approved ideas that are still floating around in the year 2012.

But back to the bad ideas. We gathered some stories from around the internet and our own personal experiences, and compiled a list of 11 Scrooge-Approved Employee Motivation Ideas You Should Never Use.

11. Be thankful you have a job

Love this one, because it’s super motivating and also a veiled threat! One employee who works at a bank relayed this story:

My employer had a manager’s meeting this afternoon. One of the things they went over was trying to get us to be more motivated. They handed out a sheet of paper and one of the bullets/topics they went over was that “We should be thankful that we have jobs and that we work here (bank) due to the economy.”

Alright! Now, anyone who is not extra motivated and working really hard to show how much you deserve this rare and elusive job, please show yourself out the door.

10. Giving orders to the minions

The days of top-down, military style management where the managers bark out orders to the workers is long gone. Or is it? There are still plenty of industries that operate this way, using micromanagement and threats to get employees in line. To these leaders, an intrinsically motivated and highly productive workforce seems idealistic and naive. Here’s a real-life quote from a retail worker:

As someone who works in a giant retail store full of dozens of managers, the managers who cooperate with me see the greatest amount of productivity from me. I’ll work way harder than what is expected of me because I enjoy feeling productive. The managers who want to build up a wall where they don’t have to cooperate with me and simply give orders…I’ll literally trick them into thinking I’ve done a lot of work by manipulating their system and then I take triple cig breaks and just sit around all day…

9. Criticize and abuse

Your employees don’t need encouragement. No one likes to be praised or told they’re good at what they do. Just keep pointing out the mistakes, making people feel bad about their work, and offering no support or constructive feedback. That’ll do the trick!

One employee writes (hilariously):

A truly Machiavellian master can abuse and personally insult people into having something to prove, driving them to work harder. While an increase in workforce intelligence is not guaranteed, your victims will move faster and try to be perfect out of sheer fear. It helps if you maintain the image of omniscience and practice walking up behind people when they’re not looking.

I’ve had bosses like that. I did not know it wasn’t normal until I got a job where the management wasn’t a reincarnation of Vlad the Impaler.

8. Blaming your lazy employees for not being motivated

Maybe you think your employees are useless. You try so hard to motivate them and nothing works – they’re just lazy, lazy employees! Here’s one manager’s response to how he tried to motivate employees:

In the end, [none of my motivation techniques] worked for an extended period of time and I got tired of trying to motivate people. I have always had a great work ethic and an ability to increase my own efficiency pretty drastically, which is how I ended up managing, but I finally gave up, did the work myself, and waited for the rare times on the big jobs where my guys realized what lazy pieces of crap they were for watching me do ten times the work they were doing and stepped up for a day to help out. I have no interest in managing people ever again. If I couldn’t do it with my efficiency-oriented mind and pretty much unlimited freedom to reward in any way I wanted then I know it’s just something I can’t do. I suspect I would have gotten better results with the rod than the carrot. Motivation through fear may not be ideal but I doubt those type of managers are doing the work themselves.

Wow. I think he pretty much nailed it when he said, “I know it’s just something I can’t do.” Blaming your employees for not being motivated or productive, and just doing the work yourself or giving up is not the solution.

7. Financial incentives

Financial motivation can be both a good and a bad employee motivation technique. It all depends on the approach. Since we’re focusing on the bad in this post, let’s see how the wrong approach to compensation incentives can backfire. The pros at Vision Link Advisory Group say this:

Most companies are disappointed in the results they get from their incentive plans because they use them in one or more of the following ways:

“Carrot and Stick” approach to motivation
Means of changing behavior
Getting people to do things they don’t want to do
Motivating people to “do the right thing”
6. The Peter Principle

The Peter Principle is commonly phrased, “Employees tend to rise to their level of incompetence.” Does your company suffer from this phenomenon? Writer Oliver Thereaux says on his blog post “Why Most Managers Suck”:

Of course…any company with a hierarchy [is prone to the Peter Principle]. The main reason is that “promotion” in our industrial society, generally means “You’re really good and experienced at your job? Now stop doing it and start managing a bunch of people”.

He then shares a quote from an architect at a small tech company who, when asked about the structure of his organization, said “Everybody codes here, except for the accountant and the CEO. The latter used to code, but he was so bad at it, we made him in charge of everything else.”

Promoting employees up the ladder is a well-known employee motivation theory. But, as the poor guy in #4 will testify, not everyone is cut out to be a manager! Managing is hard…but doesn’t have to be if you’re focused on the right things.

5. Overtime

No matter how much overtime you pay your employees, eventually your tired workforce will get burned out and become completely unmotivated. Expecting your employees to work insane hours, not take vacations, and deal with constant stress is a recipe for poor production and high turnover. One young man asks for advice about helping his dad:

My father is working at a company that is requiring him to work overtime almost every day. He gets home and then they call him back. They keep threatening him that if he doesn’t do it then they will find someone who can (meaning firing him). He doesn’t have a problem with getting paid or anything like that and he’s definitely willing to work some overtime but they are just expecting him to work way too many hours.

4. Bad goals and annual reviews

Employees are not motivated by the notion that their hard work will make company owners and executives rich, organizational change consultant Paul Levesque writes on Entrepreneur. Are your employees aligned around an ultimate outcome or goal that makes them feel proud to work at your company? When individual goals, management goals, and company goals are not in alignment, you’ll see groups and individuals working against each other. Couple bad goals with rewarding effort vs. outcomes for a truly demotivating good time.

3. Convoluted mission statements

Example: It is the mission of ABC Car Gadgets to provide personal vehicle owners and enthusiasts with the vehicle related products and knowledge that fulfill their wants and needs at the right price. Our friendly, professional staff will help inspire, educate and problem solve for our customers.

That’s a great statement and, if true, the customer will be happy and the company will make money. However it’s quite a mouthful and not something you can easily repeat or rally around. No one gets up in the morning and says to themselves, “Today I’m going to provide personal vehicle owners and enthusiasts with the vehicle related products and knowledge that fulfills their wants and needs at the right price . . . Hooray!”

2. Flexibility and other gimmicks

Or as we like to say, “Flexibility is the new F word.” No matter which way you slice it, flexible work programs fail. Why is that? Because managers hate “managing flexibility” (oxymoron!) and employees are wary of when, how, and if they should even use flexibility options.

Here’s a recent example of the failure of flexibility programs at Bank of America. We predicted the fall of this program when it began seven years ago. Now, we know there are many factors that play into B of A’s decision to cut flexbility and remote work programs. But our take is quite simple: programs focused on flexibility will always, always fail because they aren’t focused on results.

1. Ignoring intrinsic motivation

All of the above to say this…if you find yourself banging your head against the wall with employee motivation programs, gimmicks, rewards, incentives, perks, benefits, raises, promotions, all without success, then maybe you’re ignoring the basics. Those of you who have read Drive by Daniel Pink are aware of his endorsement of Results-Only Work Environment. In this TED Talk, Pink talks in detail about what actually motivates us and how most businesses don’t act in accordance with what the science tells us about intrinsic motivation.

This post was originally posted on ROWE on December 23, 2012. Reprinted with Permission.

About the Author: Jody Thompson is a co-founder of CultureRx and creator of the Results-Only Work Environment (ROWE). Her first book, Why Work Sucks and How to Fix It, was named “The Year’s Best Book on Work-Life Balance” by Business Week. Cali and Jody (the co-founders of ROWE) have been featured on the covers of BusinessWeek, Workforce Management Magazine, HR Magazine, Hybrid Mom Magazine, as well as in the New York Times, TIME Magazine, USA Today, and on Good Morning America, CNBC and CNN.

Cali & Jody are nationally recognized keynote speakers and have presented to numerous Fortune 500 companies and prominent trade associations. Cali & Jody created ROWE based on the belief that the traditional solution of flexible schedules is not the answer to managing life’s many twists and turns. Bottom line? Work sucks. So they’re on a mission to fix it. Today, Cali & Jody are leading a global movement to forever change the way we work and live.

A Post-Brinker Victory for Employees: Bradley v. Networkers International, LLC

Friday, December 21st, 2012
In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements.  In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.

 

Last week, in Bradley v. Networkers International, LLC (December 12, 2012)  —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.

Background

While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker.  Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal. 

Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.

Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.

In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.

Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action. 

The Court of Appeal’s Decision on Remand

Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.
 
Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform)  lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.

The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code. 

Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable.  In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.

The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.

Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.

About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.

Exploited Filipino Teachers in Louisiana Win Historic Court Decision

Thursday, December 20th, 2012

Kenneth Quinnell

 

Just in time for yesterday’s celebration of International Migrants Day, a federal court jury ruled on Monday that Universal Placement International of Los Angeles and its owner, Lourdes Navarro, must pay $4.5 million to 350 Filipino teachers who were forced into exploitative contracts. According to the AFT, the Filipino teachers were brought to Louisiana after Hurricane Katrina and taught in public schools under H-1B guest worker program. This became the first positive jury verdict in a federal labor trafficking case brought forth by workers (as opposed to the government) involving workers who are not domestic workers. It is a clear example that workers can fight back against corporate greed and that, when allies join forces on behalf of working families, victories can be achieved.

The Filipino teachers began arriving in Louisiana in 2007 and most paid Universal Placement about $16,000 to find the jobs, AFT reported. Almost all of them had to borrow money to pay the placement fees. The loans were then charged 3% to 5% interest per month and recruiters took away their passports and visas until they paid off the loans. Many of the teachers were forced to give away 10% of their second-year salaries as well. Those who didn’t take the one-sided contract were threatened with the loss of their sizable investment and potentially being sent home.

The contracts were later ruled illegal and a class-action lawsuit was filed on behalf of the teachers by AFT, the Southern Poverty Law Center (SPLC) and Covington & Burling, a law firm. AFT President Randi Weingarten lauded the ruling:

This groundbreaking verdict affirms the principle that all teachers working in our public schools must be treated fairly, regardless of what country they may come from. The outrageous abuses provide dramatic examples of the extreme exploitation that can occur, even here in the United States, when there is no proper oversight of the professional recruitment industry. The practices involved in this case—labor contracts signed under duress and other arrangements reminiscent of indentured servitude—are things that should have no place in 21st century America.

This case is part of a larger pattern of American companies exploiting migrant workers in the teaching profession. AFT investigated the practices in a 2009 report, Importing Educators: Causes and Consequences of International Teacher Recruitment. AFT proposed a series of solutions to the problem:

To prevent such egregious abuses in the future, the AFT is calling for federal, state and local governments to take steps to monitor the hiring and treatment of overseas-trained teachers. In addition, the union recommends:

  • Developing, adopting and enforcing ethical standards for the international recruitment of teachers.
  • Improving access to the government data necessary to track and study international hiring trends in education.
  • Fostering international cooperation to protect migrant workers and mitigate any negative impact of teacher migration in their home countries.

This post was originally posted on AFL-CIO NOW on December 19, 2012. Reprinted with Permission.

About the Author: Kenneth Quinnell is a senior writer for AFL-CIO, and a former precinct committeeman in the Leon County Democratic Party. He is a former vice chair of the Florida Democratic Party’s Legislative Liaison Committee, and during the 2010 election, through the primary, Kenneth Quinnell worked for the Kendrick Meek campaign. He has written for Think Progress, AFSCME and for OurFuture.org on Social Security.

McDonald’s Urges Franchises to Open on Christmas Day … Without Overtime Pay

Wednesday, December 19th, 2012

Mark E. Andersen

In November McDonald’s saw a 2.5 percent increase in November sales. This is after the fast food giant saw a decrease in sales of 2.2 percent in October. So why was there increase in sales? Was the pork-like substitute McRib back? Was there a shortage of Ore-Ida french fries in your local grocer’s freezer causing a run on McDonald’s across the country?

Nope, none of the above; the corporate overlords at McDonald’s urged franchisees to be open on Thanksgiving day, a day that most franchise stores are closed. A Nov. 8 memo from McDonald’s USA Chief Operating Officer Jim Johannesen stated,

“Starting with Thanksgiving, ensure your restaurants are open throughout the holidays. Our largest holiday opportunity as a system is Christmas Day. Last year, [company-operated] restaurants that opened on Christmas averaged $5,500 in sales.”

On Dec. 12 Mr. Johannesen doubled down and sent out another memo to franchise owners stating that average sales for company-owned restaurants, which compose about 10 percent of its system, were “more than $6,000″ this Thanksgiving. That adds up to be about $36 million in extra sales.

So with all those extra sales one must ask if employees are reaping any benefits from being open on the holidays. The answer is dependent on the franchise owner; however, in the case of company owned stores the answer is a big fat no. According to McDonald’s spokesperson Heather Oldani, “when our company-owned restaurants are open on the holidays, the staff voluntarily sign up to work. There is no regular overtime pay.”

It is bad enough that McDonald’s pays crap wages but then they turn around and refuse to pay overtime for employees who volunteer to give up their holidays so that McDonald’s can make several million dollars. I am also willing to bet that most staff does not readily volunteer to work on Christmas day. This just gives me one more reason to not eat at the Golden Arches.

This post was originally posted on December 18, 2012 at The Daily Kos. Reprinted with Permission.

About the Author: Mark E. Andersen is a 44 year old veteran, lifelong Progressive Democrat, Rabid Packer fan, Single Dad, Part-time Grad Student, and Full-time IS worker. Find me on facebook my page is “Kodiak54 (Mark Andersen)”

Walmart Tells Workers Who Ask About Unions That Benefits And Vacation ‘Might Go Away’

Tuesday, December 18th, 2012

Walmart staves off unionization attempts in its stores by telling workers who ask about forming a union that they may lose benefits and vacation time, a potential violation of American labor law that could further inflame relations between the company and workers who picketed its stores on Black Friday and have been attempting to organize.

Walmart workers and labor advocates held protests outside the chain’s stores throughout Thanksgiving weekend, protesting the low wages it pays its workers. The company, which paid its chief executive $18.1 million and made $15 billion in profits last year, has fought off union attempts before, and now it tells its workers that unionization could lead to the loss of bonuses and vacation time, a spokesperson told Bloomberg BusinessWeek:

Walmart has been opposed to unions since Sam Walton opened his first store in Rogers, Ark., in 1962. These days, “we have human resources teams all over the country who are available to talk to associates, and we will get questions about joining a union,” says David Tovar, a spokesman for the company. “We would say: ‘Let us remind you of all that Walmart offers, and of what might go away. Quarterly bonuses might go away, vacation time might go away.’?”

Such tactics may not be illegal by themselves because they can be seen as predicting outcomes rather than threatening them, The Nation’s Josh Eidelson reported today. But the implication of such a “prediction” — that joining a union could be followed by actions resembling retaliation — is quite clear. Walmart’s anti-labor practices aren’t new: in 2008, the store’s workers spoke out about anti-union meetings they were forced to attend.

Though Walmart has long fought organization efforts in the United States, it sometimes letsworkers in other countries unionize — particularly when unionization is contingent on Walmart getting to enter a new country. In the U.S. though, it has responded to unionization efforts byshutting down departments, fighting legislative improvements to labor law, and now, telling workers that joining a union may cost them their bonus.

This post was originally posted on December 17, 2012 on ThinkProgress. 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.

Low-Wage Workers Hit Hardest by Workplace Injuries, Illnesses

Monday, December 17th, 2012

It’s a double whammy for low-wage workers when they get hurt or fall ill on the job.

First, they lose pay because the vast majority (more than 80%) of low-wage workers do not have any paid sick leave to take time off to recover. Second, not only does the pay check shrink, but because of inadequate workers’ compensation laws, they must shoulder a bigger portion of their health care costs with those smaller paychecks. That means workers and their communities must bear a larger share of the $39 billion (in 2010) that workplace injuries and illnesses cost the nation.  

A new policy brief, “Mom’s Off Work ’Cause She Got Hurt: The Economic Impact of Workplace Injuries and Illnesses in the U.S.’s Growing Low-Wage Workforce,” examines the growing problem.  

Using information from a study, by University of California, Davis, economist J. Paul Leigh, on the number and cost of injuries and illnesses among low-wage workers, Celeste Monforton, a professorial lecturer in environmental and occupational health at George Washington University School of Public Health and Health Services (SPHHS), and SPHHS researcher Liz Borkowski explore how workplace injuries and illnesses impact the lives of low-wage workers. Says Monforton:

Workers earning the lowest wages are the least likely to have paid sick leave, so missing work to recuperate from a work-related injury or illness often means smaller paychecks. For the millions of Americans living paycheck to paycheck, a few missed shifts can leave families struggling to pay rent and buy groceries.

Leigh’s study classifies about 31 million people—22% of the U.S. workforce—in 65 occupations for which the median wage is below $11.19 per hour as low-wage workers. The janitors, housecleaners, restaurant workers and others earning that wage full-time will bring home just $22,350 per year—an amount that means a family of four must subsist at the poverty line

In 2010, 596 low-wage workers suffered fatal on-the-job injuries and 12,415 died from occupational ailments, including certain kinds of cancer. Another 1.6 million suffered from non-fatal injuries, and 87,857 developed non-fatal occupational health problems such as asthma. The costs of the 1.73 million injuries and illness amounted to $15 billion for medical care and another $24 billion for lost productivity—the cost when injured or sick workers cannot perform their jobs or daily household duties.

But as Monforton and Borkowski point out, workers’ compensation insurance either does not apply or fails to cover many of these costs, which can bankrupt families living on the margin. In some cases, employers do not have to offer this kind of insurance to employees.

And even workers who do have the coverage often get an unexpected surprise after an on-the-job injury or illness: Insurers generally do not have to provide wage replacement until the worker has lost between three and seven consecutive shifts. And workers at the low end of the wage scale are often discouraged from reporting on-the-job injuries as work-related—which leaves them with no insurance benefits at all.

According to Leigh, insurers cover less than one-fourth of the costs of occupational injuries and illnesses. The rest falls on workers’ families, non-workers’ compensation health insurers and taxpayer-funded programs like Medicaid.

When low-wage workers miss even a few days of pay while recovering from an occupational injury or illness, the effects spread quickly,” says Borkowski.

They will usually have to cut back on their spending right away, which affects the local economy. And families with children might skip meals or cut back on the heat, money-saving tactics that can put vulnerable family members such as children at risk of developmental delays and poor performance in school.

The authors call on policymakers to address this public health problem more forcefully by improving workplace safety and strengthening the safety net to reduce the negative impacts caused by the injuries and illnesses that still occur. Says Monforton:

On average, more than 4,000 workers are injured on the job each day. If we make workplaces safer, we not only stop losing billions of dollars each year, but we also could reduce the pain and suffering and financial impact on thousands of low-wage, hard-working Americans and their families.

The reports are posted here: http://defendingscience.org/low-wage-workers.

This article was originally posted on AFL-CIO NOW on December 14, 2012. Reprinted with Permission.

About the Author: Mike Hall is is a 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. When his collar was “still blue,” he carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse.

How “Right to Work Shirk” Laws Kill Jobs – and Hurt All of Us

Friday, December 14th, 2012

Michigan’s recent battle makes this a good time to explain the union movement’s important role in our economy’s overall health. We’re about to explain why today’s war on unions is bad for all of us, no matter what we do for a living, and we’ll do it in four steps.

But first a word about language: “Right to work” is a misnomer for laws which let employees enjoy the benefits of union membership – at least for a little while, until they’re stripped away – without joining or contributing.

So we’ll call them “right to shirk” laws instead. And we’ll call the people who back these laws Shirkers.

And while we’re at it, let’s stop calling the states that have adopted this legislation “right to work.” They don’t give people any new rights. They take rights away, by making it illegal for employees to organize and negotiate together. They even take away employers‘ rights – to sign a certain kind of contract.

So let’s give the other states a name instead: In a nod to the Jim Crow origin of these laws, let’s call the ones which don’t have these laws “free states.”

Free Ride

Right to Shirk laws allow freeloaders to profit from the efforts of others – without contributing to the effort, and in a way that harms the common good. The billionaires and corporations behind these laws wouldn’t deliberately do anything like that, would they? Why, that would be like letting people make billions from the works of government – things like roads, the Internet and publicly-educated customers – without paying their fair share of taxes.

Oh, wait.

Right to Shirk laws are job-killers. Here are four steps to understanding why:

1. Think nationally, not just locally.

Advocates say these laws create jobs. They don’t. Their “evidence” is based on studies which show modest job growth in Right to Shirk states when compared to free states.  But all that proves is that places that are politically hostile to organized labor also offer other types of corporate favoritism.

It also suggests that Right to Shirk states can steal jobs from free states — as long as the jobs last, anyway.

The Shirker movement was started in the late 1940s by a handful of Southern politicians who were in the palm of big textile mills. They were able to draw textile jobs away from free Northern cities like my hometown of Utica, NY – until those jobs left this country altogether.  That’s not “creating” jobs — that’s killing good jobs and replacing them with ones that don’t pay enough.

The concept of “solidarity” has been tarred with McCarthyite smears. But “solidarity” is just another way of saying “We’re all in this together.”  The Right to Shirk crowd wants to stop that kind of thinking so it can pit state against state and employee against employee, shredding our social fabric for personal gain.

It’s no accident that the Shirker movement was started by the reactionary white politicians of the Jim Crow South. Back then they were still pining for the days when they could offer some folks the “right to work” … for nothing.

2. We’re fighting over a shrinking pie instead of making the pie bigger.

Things are bad. We need millions of jobs – and the jobs we do have don’t pay enough.

The graphic which Business Insider likes to call “the scariest chart ever” shows how far we are from creating the number of jobs needed to make this country’s economy grow and thrive again.  Job growth like that we’ve seen recently is always welcome, but it’s not nearly enough to get us out of this ditch. How do we get moving again?

To answer that question we need to know what’s worked in the past.

3. The real “job creators” are people with jobs – good jobs.

How did this nation finally escape the after-effects of the Great Depression and begin its greatest decades of economic growth? Government spending  – on roads, bridges, schools, and other vitally needed services – played a key part.

Unions were a crucial part of this process, too. By fighting for higher wages and better benefits, unions ensure that working people have the means to purchase consumer items, housing, and other goods and services.  Companies have to hire more people to keep up with demand – and the good jobs keep coming.

That’s why the Republican Party platform of 1956 boasted that “unions have grown in strength and responsibility, and have increased their membership by 2 millions” during Dwight D. Eisenhower’s first term. Back then Republicans understood that a growing middle class was good for the entire economy.  That party platform also said that “America does not prosper unless all Americans prosper.” Their rule: No shirkers.

But then in those days our economy wasn’t dominated by Wall Street megabanks – institutions that don’t build or sell anything. And politicians weren’t completely in bankers’ pockets back then, because the public wouldn’t have tolerated it.

We shouldn’t tolerate it now.

4. When you kill unions, that reduces consumer income – which kills jobs.

The Shirker assault on unions has taken its toll. Only 25 states remain free to unionize, and union membership has fallen dramatically:

 

Their logic would suggest that the plunge in union membership we’ve seen since 1960 must have led to a rise in good jobs.  Did it? Let’s take a look at manufacturing:

That’s my freehand drawing (and therefore not exact) of the trend line in union membership, superimposed by the number of manufacturing jobs in the United States.  Manufacturing jobs kept on increasing for more than twenty years, even as union membership increased. These jobs experienced periods of decline and stagnation as union membership fell, even before the devastating impact of NAFTA.

Consumer demand is vital to growth. That demand is tied to consumers’ income, and to their belief that life in the future will be as good or better than it is today.  Those are the two things we need to reinforce, and unions are crucial to that effort.

We need to get our economy growing again. Until then most Americans, unionized or not, will continue to struggle with stagnating wages and an ongoing economic drag that can feel a lot like a recession.  As Paul Krugman likes to say (he said it in our radio interview), This isn’t rocket science. We know how to do this.

Destroying unions is just another way for the Shirkers to make sure that we never do.

This post was originally posted on Our Future on December 13, 2012. Reprinted with Permission.

About the Author: Richard Eskow is a well-known blogger and writer, a former Wall Street executive, an experienced consultant, and a former musician.  He has experience in health insurance and economics, occupational health, benefits, risk management, finance, and information technology.  He has a somewhat unique perspective on the current financial crisis, since he worked for AIG for a number of years (although not in its infamous Financial Products division). Richard has consulting experience in the US and over 20 countries. Past clients include USAID, the World Bank, the State Department, the Harvard School of International Public Health, the Government of Hungary, as well as corporations and investors. He has experience in financial and data analysis, systems design, operations, and management.

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