Outten & Golden: Empowering Employees in the Workplace

Archive for May, 2013

Campaign Alleges Retaliation Against Strikers in Federal Building

Friday, May 31st, 2013

eidelson_100Organizers tell The Nation that four food court outlets in a federal building initially refused to let employees return to work following a Tuesday strike, but relented following protests by supporters.

The four establishments—Subway, Bassett’s Original Turkey, Quick Pita and Kabuki Sushi—are located in the Ronald Reagan federal building, one of several Washington, DC, workplaces where employees with taxpayer-supported jobs went on strike as part of the Good Jobs Nation campaign, whose backers include the Service Employees International Union. As The Nation reported Tuesday, the strikers are demanding that President Obama take executive action to improve labor standards for workers who are employed by private companies to do jobs backed by public spending. According to organizers, the one-day strike involved hundreds of workers, and forced about half of the Reagan Building’s food court outlets to shut down at some point during the day. (The Reagan Building is owned by the federal government; many of its food outlets are franchisees of restaurant or fast food chains.)

Bassett’s employee Suyapa Moreno told The Nation in Spanish that three of her outlet’s four staff went on strike Tuesday, and that when they showed up to start their shift on Wednesday, “The owner told my co-worker she was fired. So I said, ‘If you’re going to fire her, I’m not coming back to work.’” She said her manager told them that “she didn’t want to see us again.” Moreno said she believes her co-worker was targeted because management saw her as the ringleader who convinced Moreno and a third Bassett’s worker to strike.

Moreno said the workers then waited at the food court until other workers, organizers and community supporters gathered to protest the terminations. According to the Good Jobs Nation campaign, about a hundred total supporters converged in the food court to protest ten total terminations by four outlets. Once there was a big enough group, said Moreno, “We went back to talk to the owner, and she accepted us back.” The Good Jobs Nation campaign told The Nation that managers or owners from Subway, Quick Pita and Kabuki Sushi also agreed to reverse the terminations once confronted by crowds of supporters.

The federal Office of Management and Budget did not respond to a request for comment Thursday afternoon regarding the allegations, or to The Nation’s prior inquiries this week regarding the Good Jobs Nation campaign. An employee who answered the phone at the Reagan Building Bassett’s Original Turkey location early Thursday evening said that no manager was on the property to comment. A call to the building’s Kabuki Sushi location went unanswered. The person who answered the phone at the building’s Subway location said he was too busy to comment; the Subway corporation did not immediately respond to an inquiry.

Reached on the Reagan Building Quick Pita location’s phone line, a person who identified himself as a manager there said that no strikers had been denied the chance to return to work, and charged that the campaign was making workers “victims for a bigger political agenda.” He declined to give his name, and said that he was not authorized to speak for the Quick Pita company or the franchisee’s owner.

The attempted terminations alleged by Good Jobs Nation could be violations of federal labor law. As I’ve noted previously, the law generally prohibits “firing” workers for striking, but often allows “permanently replacing” strikers by filling their positions during the strike and refusing to reinstate them. But strikes that the government finds to be motivated in part by prior labor law violations, as Good Jobs Nation says Tuesday’s was, receive greater legal protection; and striking for only one day may also provide a shield against “permanent replacement.”

However, labor advocates and activists have long charged that the National Labor Relations Board’s slow process and weak penalties do little to discourage companies from firing activists. In order to deter retaliation, organizers of recent fast food strikes have arranged for delegations of supporters, sometimes including local politicians and clergy, to accompany the strikers back to work the next day. As I reported for Salon in November, activists say that an indoor occupation and outdoor picket of a Wendy’s store led management to reverse the termination of one of the participants in New York’s first fast food strike. Organizers say the same approach worked yesterday in Washington.

“Before, when workers were treated badly or fired unjustly, nothing would happen,” said Moreno. “And so the bosses felt like they could keep doing it.” Following the strike and yesterday’s showdown, she said, “Now they treat us with a little more respect, because they’re afraid that if they keep doing what they’re doing, more of this will happen.”

This article was originally printed on The Nation on May 23, 2013.  Reprinted with permission.

About the Author: Josh Eidelson is a Nation contributor and was a union organizer for five years. He covers labor for as a contributing writer at Salon and In These Times.

UMWA: Bankruptcy Judge Ruling on Patriot Coal Is 'Wrong' and 'Unfair'

Thursday, May 30th, 2013

Kenneth QuinnellOn Wednesday, Judge Kathy Surratt-States of the U.S. Bankruptcy Court for the Eastern District of Missouri ruled in favor of Patriot Coal in its efforts to eliminate its collective bargaining agreements and get out of commitments made to retirees who worked for Patriot, Peabody Energy and Arch Coal. These workers gave years of their lives to making the companies profitable only to be abandoned in their retirement years. The Mine Workers (UMWA) union continues to argue that Patriot was specifically designed to fail in order to dump retiree health care costs. The current CEO of Patriot, Ben Hatfield, has agreed with that assessment.

UMWA International President Cecil E. Roberts said the ruling was “wrong, unfair and fails to fully recognize the coming wave of human suffering that will be experienced by thousands of people throughout the coalfields.” Roberts said not only was the decision morally wrong, it wasn’t a necessary financial move for the company:

The UMWA presented a very clear picture in court of what Patriot actually needed to come out of bankruptcy. Patriot can survive as a viable and profitable company well into the future without inflicting the level of pain on active and retired miners and their families it seeks. Patriot is using a temporary liquidity problem to achieve permanent changes that will significantly reduce the living standards of thousands of active and retired miners and their families. We are disappointed that the Bankruptcy Court failed to see that, and we intend to appeal the ruling to the Federal District Court.

Under the ruling, Patriot will be allowed to stop paying retiree health care benefits as early as July 1. A Voluntary Employees’ Beneficiary Association (VEBA) takes over payment of the benefits, but the VEBA only has guaranteed funding of $15 million and about $5 million more per year based on royalty payments from Patriot. Current monthly health care costs for the retirees are nearly $7 million.

The ruling also allows Patriot to eliminate its current collective bargaining agreements with UMWA, and the company could cut current workers’ wages and health benefits and implement substandard conditions of employment, among other potential negative impacts. UMWA has filed suit charging that Peabody and Arch violated the Employee Retirement Income Security Act in creating Patriot.

Supporters of the retired coal miners, such as Green For All CEO Phaedra Ellis-Lamkins, also condemned the ruling (via press release):

Today’s decision favors corporate greed over honest, loyal work. These workers have given years of service and have risked their lives in the coal mines, only to see the benefits they were promised stripped away. They deserve our support.

It is hard to imagine anything more unpatriotic than what Patriot Coal and its founding companies are doing. This represents the worst type of corporate abuse in America. Companies like Peabody coal are raking in billions in profits, while leaving their own workers high and dry.[…]

Today’s decision is a setback, but it is not the end. We will continue to stand by coal miners and their families as they appeal the decision and until they receive the benefits they were promised, and the respect they deserve.

This article was originally printed in AFL-CIO on May 30, 2013.  Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist whose writings have appeared on AFL-CIO, Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

13 Things Every Teen Needs To Know About Workplace Rights

Wednesday, May 29th, 2013

donna ballmanSchool’s out for summer! Or it will be soon, and many teens will start summer jobs or even their very first real job. Yet schools do little, if anything, to prepare teens for the realities of the workplace. I’m always shocked when I encounter teens whose parents drag them to me after they suffer workplace abuse with no idea they have any rights at all.

So, if you’re a teen entering the workplace or thinking of applying for a job, read this. If you’re a parent, friend or relative of a teen who is entering the workforce, please print this and show it to them.Here are 13 things teens need to know about workplace rights that their school probably didn’t teach them:

1. Minimum Wage: Federal minimum wage is $7.25 per hour. However, there is something called the youth minimum wage, which means that for the first 90 calendar days of any new job you can be paid as little as $4.25 per hour if you are under 20State minimum wages may be higher. Here in Florida, the minimum wage is $7.79. Tipped employees may be paid a minimum wage of $2.13/hour as long as their wages including tips equal at least the higher of the state and federal minimum wage. State minimum wages for tipped employees vary. In Florida, it’s $4.77/hour. More details about wages can be found here.

2. Hours: If you are under 16, under Federal law your work hours are limited. You can’t work during school hours at all, and you can’t work more than 3 hours on a school day, including Friday; more than 18 hours a week when school is in session; more than 8 hours a day when school is not in session; more than 40 hours a week when school is not in session; and before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when you can work until 9 p.m. Federal law doesn’t limit work hours for teens 16 or older, but yourstate laws may. For instance, Florida law says if you’re under 18 you can’t work during school hours (with exceptions), and that if you’re 16 or 17 you may only work up to 30 hours per week, not before 6:30 a.m. or later than 11 p.m. and for no more than 8 hours a day when school is scheduled the following day, and for no more than 6 consecutive days.

3. BreaksFederal law doesn’t require any work breaks. However, many states require work breaks, especially for workers under 18. In Florida, workers under 18 are not allowed to work more than 4 consecutive hours without a 30 minute uninterrupted work break. For breaks of more than 20 minutes, employers don’t have to pay. Breaks 20 minutes and under are hours worked that need to be paid.

4. Sexual Harassment: If your boss, coworker, customer, vendor or potential boss is harassing you because of your gender or gender identity, that’s sexual harassment, and it’s illegal. This includes unwanted sexual advances, requests for sexual favors, offensive comments about men or women in general, off-color jokes, touching, and other harassment that is either so severe or so frequent that it alters the terms and conditions of your employment. A single offhand comment may not be sexual harassment, but a single incident that is severe could be. As a minor, you have added protection. Any adult sexually harassing you is probably committing a crime, and could be a sexual predator. It is really important that you read the company’s sexual harassment policy when you start working and write down where you are supposed to report it if it occurs. You don’t have to be afraid, and you should not let yourself become a victim. People you can and probably should report sexual harassment to are your Human Resources department at work and your parents. If you’ve been touched, then you may want to contact the police. If you see someone else being sexually harassed, you should report it. Harassers will keep doing it, and their behavior will get worse, unless an adult stops them.

5. Contracts: In most states, if you’re under 18 you can’t be bound by a contract, including an employment contract. You (or your parents) can void a contract you’ve signed while underage. However, once you turn 18, you probably can’t void it anymore. Employment contracts might have provisions saying you can’t work for a competitor for a year or two, waiving your right to a jury trial, confidentiality obligations, and other important clauses. If you are asked to sign a contract, always read it and keep a copy once you’ve signed. If you don’t understand it, talk to your parents or an employment lawyer in your state about it.

6. Internships: While many teens take unpaid internships for the summer, most employers get internships wrong. If your internship is not a real learning experience for you, then you probably have to be paid for the work you do. An internship is supposed to be training similar to that you would receive in a vocational school. Filing, stuffing envelopes, and answering phones should normally be paid. Internship assignments should build on each other so you develop more skills, similar to the way each chapter of a textbook builds on the other. You should be getting training that benefits you, and you should be getting more benefit than the company. If they can make money off what you’re doing, or if you’re saving them from having to pay another employee, you probably have to be paid.

7. At-will: If you live anywhere but Montana, your employment is probably at-will, meaning your employer can fire you for any reason or no reason at all (with some exceptions). They can fire you because they’re in a bad mood, because they didn’t like your shirt, or because you lipped off to them like you lip off to your parents. Exceptions that would make a firing illegal include firing due to discrimination, making a worker’s comp claim, and blowing the whistle on illegal activity of the company. If your boss tells you to do something that isn’t illegal (or sexual harassment), then do it. No eye-rolling, back-talk or attitude.

8. Social Media and Cell Phones: You are expected to work during work hours. That means no texting, emailing, calling, tweeting, instagraming, facebooking, downloading, or surfing at work, unless it’s work-related. If you check your texts, emails, or social media on a company computer, cell phone or other device, the company probably has the right to look at it. If you view or send inappropriate pictures, jokes, or videos, you can be fired for doing so. There is very little privacy in the workplace, and you have few rights. Assume you’re being watched at all times at work and you won’t go wrong. Oh, and remember all those party pics and embarrassing photos you posted before you started applying for work? Employers and potential employers can see them. You probably want to check your social media pages and pull down anything you can that might be inappropriate for an employer to see.

9. Human Resources: If your employer is big enough, you probably have someone who is designated as the Human Resources person or a whole department called “Human Resources.” It may be referred to as HR. This is the place to go for information about work rules, to report sexual harassment or discrimination, and you’ll probably have to go there on your first day to fill out a stack of forms. While they can be very helpful if you have questions or concerns, they aren’t your buddies. Human Resources represents your employer, not you. They aren’t your mom or your best friend, so don’t go to them with every petty complaint, confess you did something wrong, or tell them about the wild party you went to over the weekend. Keep it professional.

10. Discrimination: Discrimination against you for being you isn’t illegal. However, discrimination and harassment due to race, sex, sexual identity, national origin, disability, religion, color, pregnancy and genetic information are. In some states, there are more categories of illegal discrimination. For instance, in Florida it’s illegal to discriminate against you because you’re too young or because of marital status. Whether sexual orientation is a protected category depends on your state and local law. No federal law bars sexual orientation discrimination.

11. Bullying: While your school might have zero tolerance for bullying, your workplace may be a bullying free-for-all. No federal or state law exists that prohibits workplace bullying. However, workplace bullies are very much like school bullies: they focus on the weak and the different. If you need to complain about a bully, make sure you do it in a way that’s protected. If the bully is picking on the weak, are they weak because of a disability, pregnancy, or age? If they’re picking on the different, is the difference based on race, national origin, age, or religion? If you report illegal discrimination, the law protects you from retaliation. If you report bullying, no law protects you.

12. Dangerous Work: It is every employer’s duty to maintain a safe workplace. If you think your workplace is unsafe, you can contact the Occupational Safety and Health Administration (OSHA) to report dangerous conditions and get more information. Certain jobs are deemed too hazardous for teens under 18 to do. A plain English description of the 17 jobs considered too dangerous for minors is here. There’s a different list for agricultural workthat applies to workers under 16.

13. What Kind Of Work You Can Do: Depending on your age, there may be limits on the type of work you can do. If you are under 14, you can work, but your options are limited. You can deliver newspapers, babysit, act or perform, work as a homeworker gathering evergreens and making evergreen wreaths, or work for a business owned by your parents as long as it’s not mining, manufacturing or one of the occupations designated as hazardous. If you are 14 or 15, you can do things like retail, lifeguarding, running errands, creative work, computer work, clean-up and yard work that doesn’t use dangerous equipment, some food service and other restaurant work, some grocery work, loading and unloading, and even do some work in sawmills and wood shops. We’re talking non-manufacturing and non-hazardous jobs only. If you are 16 or 17, you can do any job that isn’t labeled as hazardous.

The Department of Labor has a website where you can get more information about employment laws that apply to teens. An interactive advisor about federal law may be foundhere.

Of course, my book Stand Up For Yourself Without Getting Fired can help anyone new to the workplace since it covers how to handle workplace crises and issues from the interview and application, to your first day and that giant stack of papers, to workplace disputes, to promotions, to termination, and even post-termination.

This article was originally printed on Screw You Guys, I’m Going Home on May 24, 2013.  Reprinted with permission.
About the Author: Donna Ballman is the award-winning author of Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.  The book won the Law category of the 2012 USA Best Book Awards.  She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986.  She also leads her legal team at Donna M. Ballman, P.A.

Cablevision Calls Cops on Workers, Hires Scalia’s Son to Challenge NLRB’s Authority

Tuesday, May 28th, 2013

Mike ElkOn Thursday, 15 Cablevision workers who are also stockholders in the cable company were ejected from the annual shareholders’ meeting in Bethpage, New York. When the workers, members of the Communication Workers of America (CWA), spoke up during the meeting to question Cablevision CEO James Dolan about what they see as union-busting tactics, the company called the police to remove them.

“When the questions got too hard to answer, he asked his corporate security to kick us out,” says CWA District 1 Organizing Coordinator Tim Dubnau. “We told him that we had a right to be here but if a police officer told us to, we would leave. The police detained us for an hour outside pending an investigation, then released us.”

The workers’ main beef with Cablevision is the company’s refusal to come to a first contract deal with 282 Cablevision workers in Brooklyn who voted in January of 2012 to join CWA District 1. The local says that over the past year it has attempted to bargain with Cablevision for a first contract, but says the company has not engaged in good faith. The workers also accuse their employer of several acts of union-busting: In February, Cablevision fired 22 union members who were attempting to meet with management to discuss Cablevisions’ refusal to agree to a contract. (All of the workers have since been rehired). And, according to the union, earlier this winter the company gave a 17 percent raise to all of its 15,000 employees except the 282 District 1 members in Brooklyn.

In a statement to Working In These Times, Cablevision spokesperson Whit Clay disputed CWA’s version of Thursday’s events, saying, “It is a shareholder meeting with a clear set of rules. The CWA attempted to disrupt the meeting; they were asked to refrain and when they did not they were asked to leave. The matter is now in the hands of the authorities.”

Clay continued, “We believe our Brooklyn employees don’t want the CWA, and those employees have legally petitioned to hold a vote on whether or not to continue with CWA representation. The CWA is doing everything it can to block that vote.”

In fact, the CWA has blocked that vote, at least for now. It complained to the National Labor Relations Board about the firings and the stalling tactics, and on April 29, the NLRB issued a ruling agreeing with the CWA that Cablevision had engaged in bad-faith bargaining and imposing a number of sanctions on Cablevision. Among them is a 12-month extension of the one-year window after a union’s formation during which a decertification vote cannot be held.

In response, Cablevision contested the NLRB’s authority, citing a January ruling by a DC court that has left the board in a legal limbo. Representing Cablevision, Eugene Scalia, the son of Supreme Court Associate Justice Antonin Scalia, wrote in a letter to NLRB Acting General Counsel Lafe Solomon:

“We recognize that the Board has expressed the view that, despite the D.C. Circuit’s Noel Canning decision, the Board may continue to take action under the [National Labor Relations] Act. See, e.g., Bloomingdale’s, Inc., 359 NLRB No. 113 (2013). Notwithstanding that erroneous position, there is no reason why Regional Directors and other Board staff should be permitted to continue expending public resources in pursuing litigation that, under the law of the D.C. Circuit—in which CSC and Cablevision are entitled to seek review of any final Board ruling, see 29 U.S.C. § 1600—is ultra vires and will ultimately be adjudged a nullity. Subjecting private litigants to the massive, unjustified burdens of litigating these and many other cases nonetheless—which the Regional Directors had no valid authority to initiate, and in which the Board cannot issue a final order—is manifestly unfair, inefficient, and incompatible with core principles of equity.”

Union activists find it ironic that Cablevision claims that the labor board does not have the authority to stop a decertification election, but still has the authority to hold a decertification election.

“Cablevision doesn’t want the Board to have any jurisdiction [over their] illegal conduct, but they do want the labor board to have jurisdiction to help them kick the union out,” says Dubnau. “It’s an absolute contradiction.”

Labor advocates say that it is not uncommon for employers to challenge the legitimacy of the labor board, except when it helps them to fight unions. “When it comes to 8(a) complaints against the employer, they treat the law as merely suggestive, but when it comes to 8(b) complaints against the union, they treat the law as absolute,” says labor lawyer and Century Foundationfellow Moshe Marvit.

For now, CWA plans to continue organizing workers despite what they claim is Cablevision’s attempt to get workers to give up on the union by refusing to bargain with it. The union claims that the demonstration at Cablevision’s stockholder meeting was yet another battle in what will be a long war to win a union contract for Cablevision employees.

“We let them know at the shareholders meetings that we are never going to give up, we are never going to stop,” says Dubnau.

This article was originally printed on Working In These Times on May 28, 2013.  Reprinted with permission.

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.

Millennials Want the American Dream, Too

Friday, May 24th, 2013

austin-thompson-1Although our way of life is constantly changing in America, members of the class of 2013 have the same aspirations as generations before them.

They want to find good jobs, buy homes, raise families and later enjoy a decent retirement.

It will be decades before these young adults reach retirement age, but recent research from the National Institute on Retirement Security (NIRS) finds Millennials are already concerned about their ability to retire.

“I think it’s in the back of everyone’s mind. It’s the elephant in the back of room no one’s talking about,” says 29-year- old Oakland, Calif., resident Ebony Young.

Although it’s been several years since Young graduated from Oregon State University, she is still underemployed making it hard to prepare for her future.

“I worry about my retirement because I don’t have a plan. Right now, I don’t qualify for my employer’s plan,” says the temporary warehouse worker.

Like Young, much of the Millennial generation is suffering from stagnant or decreasing earnings, as well as high debt from student loans, credit cards and medical bills. More than half of bachelor’s degree-holders under the age of 25 last year were jobless or underemployed.

Millennials are also less likely to have access to the three-legged stool of retirement? Traditional pensions, Social Security and personal savings? that provided retirement security to previous generations, according to NIRS researchers.

The NIRS study also finds Millennials want lawmakers to repair America’s broken retirement system by strengthening Social Security and creating a new pension system that would be portable and provide a reliable, monthly check to all those who contribute.

“The only thing I ever asked for in life is options. I would like to have a plan that I could pay into,” says Young.

Luckily, this Millennial, however, has an option. Last year, due in part to efforts of SEIU members,California Gov. Jerry Brown signed into law a bill to create the California Secure Choice Retirement Savings Plan. The new hybrid savings plan would act as a supplement to Social Security and build on positive attributes of traditional pensions and defined contribution plans.

Young describes Secure Choice as a “breath of fresh air.” Wouldn’t it be great if more Millennials were able to breathe easier knowing they could still pursue that part of the American Dream that allows you to retire with dignity after a lifetime of hard work and playing by the rules?

This article was originally printed on SEIU on May 20, 2013.  Reprinted with permission.

About the Author: Austin Thompson is the SEIU Millennial Coordinator.

NLRB Nominees Head to Senate Floor....Filibuster Next?

Thursday, May 23rd, 2013
Image: Mike HallThe fight over President Obama’s five nominees to the National Labor Relations Board (NLRB) is headed to the U.S. Senate floor after the Health, Education, Labor and Pension Committee voted today to send the five to the full Senate. Now the question is, will Senate Republicans filibuster?

The nominees—three Democrats and two Republicans—must be confirmed before August, when the term of one of the current NLRB members ends and the board will be without a quorum and unable to function.

In a recent column in The Hill, AFL-CIO President Richard Trumka wrote:

Extremist congressional Republicans and corporate lobbyists…want to weaken its power to protect workers who choose to organize and form unions on the job….South Carolina Republican Sen. Lindsey Graham, a key leader of the charge, said, ‘I will continue to block all nominations to the NLRB….The NLRB as inoperable could be considered progress.’

The five are current board members, Chairman Mark Pearce and members Sharon Block and Richard Griffin—and attorneys Philip Miscimarra and Harry Johnson, who represent management in labor-management relations.

The effort to block the nominations is part of a years-long campaign to cripple the NLRB that includes legislation to de-fund the board, to shut it down, to curtail its work and legal challenges that have stalled justice for many workers.

One of those workers is Illinois pressman Marcus Hedger who was illegally fired in 2010 and who the NLRB ordered reinstated with back pay. But Hedger is caught in the legal limbo generated by a recent court decision in favor of employers and anti-worker groups challenging the authority of the NLRB. He has since lost his home to foreclosure and is working at a job that pays only about one-third of what he previously earned.

This article was originally printed on AFL-CIO on May 22, 2013.  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 have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

EEOC Issues Revised Publications Regarding the Employment Rights of People with Specific Disabilities

Wednesday, May 22nd, 2013

lizbeth_westOn May 15, 2013, the EEOC issued a press release announcing revised publications regarding employment rights for four categories of individuals with specific disabilities. The publications address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancerdiabetesepilepsy, and intellectual disabilities.

According to the EEOC, “nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability.” Further the agency believes that “many of them are looking for jobs or are already in the workplace…” and, “while there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

Therefore, the EEOC said that the revised publications are in plain, easy-to-understand language, and reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the publications also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

For more information regarding the revised publications, go to:http://www.eeoc.gov/laws/types/disability.cfm

This article was originally printed on The Labor and Employment Law Blog on May 16, 2013.  Reprinted with permission.

About the Author: Lizbeth V. West, Esq. is a Shareholder in Weintraub Tobin’s Labor and Employment, Appeals and Writs, and Litigation groups.

Angelina Jolie and Employment Law

Tuesday, May 21st, 2013

philip_miles_smallBy now, you’ve probably already heard about the biggest news in the world for the past day or so . . . Angelina Jolie’s double masectomy. Why an apparently uneventful preventive surgery on an actress is the number one story in the world is a riddle I have yet to solve. I have, however, nailed down an employment law tie-in!

You can’t spell Angelina without GINA (if you rearrange some letters)! The key here is the reason Ms. Jolie had the operation:

[T]he truth is I carry a “faulty” gene, BRCA1, which sharply increases my risk of developing breast cancer and ovarian cancer. My doctors estimated that I had an 87 percent risk of breast cancer and a 50 percent risk of ovarian cancer, although the risk is different in the case of each woman. Only a fraction of breast cancers result from an inherited gene mutation. Those with a defect in BRCA1 have a 65 percent risk of getting it, on average.

Ms. Jolie may not realize it yet, but she just became the poster-child for GINA, the Genetic Information Nondiscrimination Act!

This is a great example of the reason Congress passed GINA. Genetic testing has gotten to a point where we can predict, with fairly high probability, the chances of contracting certain major diseases. That is why GINA generally prohibits employers from conducting genetic testing, requesting genetic information, and discriminating on the basis of genetic information.

An unscrupulous employer may misuse such information to only hire people who are “low risk” in terms of insurance costs and availability for work. GINA outlaws that.

In a related story, the EEOC just settled its first GINA lawsuit.

This article was originally posted in Lawffice Space on May 15, 2013.  Reprinted with permission.

About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.

The “New” Discrimination: Retaliation Based on Health Care Rights

Monday, May 20th, 2013

Ryan PriceIf you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).

Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.

You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.

Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specifically, an employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:

  • Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
  • Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so;
  • Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or
  • Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA.

If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration(“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.

Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.

This article was originally printed on Screw You Guys, I’m Going Home on May 10, 2013.  Reprinted with permission.

About the Author: Ryan Price is an Associate Attorney at Donna M. Ballman, P.A., Employment Advocacy Attorneys.

We Are Worth More

Friday, May 17th, 2013

jack-metzgarLast month a few hundred retail and fast-food workers, from places like Sears, Dunkin’ Donuts, and McDonald’s, walked off their jobs for a rally in downtown Chicago.   Carrying signs saying “Fight for 15” (or “Lucha Por 15”) and “We Are Worth More,” these workers make $9 or $10 an hour, at best, and they figure they’re worth at least $15.

A one-shift walk-out and protest by a few hundred out of the thousands of such workers in the Chicago Loop and along Michigan Avenue’s Magnificent Mile cannot have the economic impact of a traditional strike – one that shuts down an entire workplace or industry for an extended period of time and, therefore, can bend an employer’s will.   And these workers’ chances of getting $15 an hour any time soon are worse than slim.   This “job action,” bolstered by community supporters organized by Action Now and with help from Service Employees International Union organizers, is more in the nature of a public protest than a “real strike.”   You could even call it “a public relations stunt,” but you’d be wrong to dismiss it as inconsequential.

“Public relations,” ironically, has a bad image.  But think of it as workers witnessing their own plight, calling for others in similar situations to join them and appealing to those of us with decent incomes to support them.  Witnessing, with its religious overtones, is not intended as an immediately practical action.  It’s first about individuals summoning the courage to put themselves forward to make a public claim that they are one of thousands (millions nationally) who are being treated unjustly.  In this case, it means taking the risk that they may be fired or otherwise disciplined for leaving work and going into the streets to proclaim “We are worth more.”

Witnessing is meant to make us think about justice as the witnesses simultaneously inspire and shame us with the courage of their individual actions.  I was at one of the first draft-card burnings that protested the Vietnam War in 1965, and I remember saying something like, “I’d do that if I thought it would do any good,” while knowing in my heart of hearts that I didn’t have the guts to take that kind of risk then.  But it inspired and shamed me – and thousands and then hundreds of thousands of others — to do many other things to fight against that war as we inspired and bolstered (and exerted peer pressure on) each other.

For the broader public, these initial job actions – in New York and Chicago among retail and fast-food workers; in California and Illinois among workers at Walmart warehouses; and all over the place amongWalmart retail workers – are “public relations” that raise awareness and pluck consciences.   But for workers who watched workmates walk off the job to witness for them, there may be some of that inspiration and/or shame that is a particularly powerful call to action. That’s what organizers are counting on, in the hope that the numbers of such workers will grow helter-skelter across the retail industry, eventually initiating a contagion of worker direct action that can put these workers in a position to negotiate for “labor peace,” with or without the blessing of the National Labor Relations Board.

There’s another determined witness who couldn’t be more unlike these striking workers.  He’s a retired law professor from the University of Texas, Charles Morris, who is a leading expert on the legislative and early administrative history of the National Labor Relations Act and the Board that enforces it.  In a 2005 book,The Blue Eagle at Work, Morris makes the legal case that the Act defined a labor union as any group of two or more workers who act together (“in concert”) to seek redress of grievances from their employer.   According to Morris, the “concerted activity protection” articulated in the Act means that employers cannot legally fire workers for forming a non-majority  or “members-only” union (as few as two workers acting together), and what’s more, an employer is legally bound to “bargain in good faith” with that union.

Through meticulous legal research, Morris has shown that these worker rights were in the Act from the beginning but have been forgotten by the subsequent customary practice of defining a union as only that group of workers who have formally voted to be represented by a petitioning union. What’s more, other legal scholars have now signed on to Morris’s legal interpretation and are ready to bolster it before an NLRB that is willing to hear their case.  There would be such an NLRB, what Morris calls “a friendly Board,”if Republican Senators would allow a vote on President Obama’s nominees for the Board.

A favorable NLRB ruling would be important for a variety of legally technical reasons that workers and organizers could use to their tactical and strategic advantage – none of which includes the expectation that employers will voluntarily obey the law just because it is the law. But equally important is that Morris’s reading of the Act’s history restores the original meaning of a labor union that is based on workers’ decisions to act together “in concert” with one another.  That is, a labor union is not just an institution with a bureaucracy and a marble palace in Washington, D.C., though it may be that as well.  It is any group of workers in any workplace, no matter how big or small, who decide to and then do act in concert to advance their own interests in their workplace.

In March Chicago Working-Class Studies helped organize a public forum that brought Charles Morris together with workers and organizers from Fight for 15, the Walmart retail and warehouse strikers, and two other groups who are already acting as unions under this definition.  Though there were some disagreements between the elderly legal scholar and the mostly young workers and organizers — one emphasizing the importance of politics and administrative case law in the long run, the others focused on the potential of direct action in the here and now – they agreed that if and when the two come together, the possibilities for a worker-led upsurge of union organizing are great.

Nonetheless, through their actions these workers have already changed what a labor union is and is thought to be.   It is now, and really always has been — even a century before the National Labor Relations Act was passed in 1935, even when it was an illegal “conspiracy” — simply a group of two or more workers acting in concert with one another.   To be really effective there will need, of course, to be many, many more than the hundreds and thousands who have begun this process.  But it starts with a few brave witnesses who take a risk and ask others to join them.  The peer pressure is now on the rest of us.

This article was originally printed on Working-Class Perspectives on May 6, 2013.  Reprinted with Permission.

About the Author: Jack Metzgar is a retired Professor of Humanities from Roosevelt University in Chicago, where he is a core member of the Chicago Center for Working-Class Studies. His research interests include labor politics, working-class voting patterns, working-class culture, and popular and political discourse about class.

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