Outten & Golden: Empowering Employees in the Workplace

Archive for June, 2013

Your Rights Regarding Pre-employment Credit Checks

Sunday, June 30th, 2013

Donna photo redNevada has just joined the ranks of 9 other states that have outlawed the use of credit history to discriminate against potential employees. However, they’re still a minority. Still, there’s a clear trend in the states. According to the National Conference of State Legislators, “42 bills in 24 states and the District of Columbia have been introduced or are pending in the 2013 legislative session relating to the use the credit information in employment  decisions. Out of the total 42 bills, 39 address restrictions on the use of credit information in employment decisions.”

In most states, pre-employment credit checks are legal. Employers argue that bad credit are an indication that the person may embezzle or be dishonest. I say nonsense. People with good credit embezzle all the time. People with bad credit may have just had a run of bad luck, a nasty divorce, uninsured medical bills, or some other unavoidable financial disaster. Being poor is not the same as being dishonest.

The recession brought this issue to a head. Suddenly 10% of the population was unemployed. People with stellar credit found themselves in trouble. While government tends not to pay attention to issues affecting the poor, when it hits the middle class, suddenly everyone cares.

There have been multiple attempts to address this situation in Congress. All have failed. In my opinion the current Congress won’t do anything until the problem  starts to impact the upper class. We have a very anti-employee majority  in office. The only way things will change is if voters speak up and  tell their representatives to make employers butt out of their finances.

So, what do you do if you’re in the unlucky majority of states that still allow this invasion of your privacy?

I suggest honesty. If you have bad credit, be ready to explain your situation. Tell the interviewer your plan to address the situation. While being “in over your head” may be considered an indicator of potential dishonesty, it doesn’t mean you’re going to become an embezzler. If you can demonstrate that you have a plan to get out from under the debt, the HR department might feel reassured.

What are your rights if an employer runs your credit history?

If your potential employer is going to run a credit check, then they must comply with the Fair Credit Reporting Act. This requirement covers anything the employer is getting from a consumer reporting agency that covers personal and credit characteristics, character, general reputation, or lifestyle, but not the HR department running your name on Google, checking out your Facebook page, or reading your blog.

If they are going to run a credit check, they have to give you a document solely for the purpose of telling you they intend to conduct a credit check. It was probably shoved in with a stack of papers they handed you with your application or pre-employment forms. They need your permission in writing.

They must also tell you if they’re about to deny a job, reassign, or terminate you because of what was disclosed in a credit report. They must give you written notice with a copy of your credit report and a document called “A Summary of Your Rights Under the Fair Credit Reporting Act.” This process does not apply to truckers.

Once the employer decides to use the report against you, they must then give another notice, this time telling you the name of the agency that did the credit report, saying the agency isn’t the one that made the adverse decision, and telling you how to dispute the information in the report with the agency. This notice can be verbal or in writing, unless you’re a trucker, in which case it must be written.

If an employer runs your credit history without permission, they’ve broken the law. If they don’t jump through all the hoops required under the Fair Credit Reporting Act, you have potential claims against them. In that case, contact an employment lawyer in your state to discuss your options.

The EEOC views the use of employment credit checks as potentially discriminatory against women and minorities. If you’ve been denied a job or had other adverse action taken against you by an employer based on bad credit, you might want to explore the possibility that you have a discrimination claim with an employee-side employment lawyer in your state.

This article was originally printed on Screw You Guys, I’m Going Home on June 21, 2013.  Reprinted with permission.

About the Author: Donna Ballman‘s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently named the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. She is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. 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. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 and 2012 ABA Blawg 100 best legal blogs and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

She has written for AOL Jobs and The Huffington Post on employment law issues, and has been an invited guest blogger for Monster.com and Ask A Manager. She has over 6000 followers on Twitter as @EmployeeAtty. She has taught continuing legal education classes for lawyers and accountants through organizations such as the National Employment Lawyers Association, Sterling Education Services, Lorman Education Services, Alison Seminars, the Florida Association for Women Lawyers, and community organizations.  Ms. Ballman has published articles on employment law topics such as severance, non-compete agreements, discrimination, sexual harassment, and avoiding litigation. She’s been interviewed by MSNBC, Forbes, the Wall Street Journal, Lifetime Television Network, the Daily Business Review, and many other media outlets on employment law issues. She was featured on the Forbes Channel’s “America’s Most Influential Women” program on the topic of severance negotiations and non-compete agreements.

 

How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits?

Friday, June 28th, 2013

Jeff NowakUnless you’ve been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman.

Yesterday, as Justice Anthony Kennedy read the opinion of the Court in U.S. v. Windsor, I can only imagine that his thoughts were consumed completely by the manner in which the extinction of DOMA would impact the future of the Family and Medical Leave Act. Right?

But let’s not leave this to chance.  In the unlikely event that Justice Kennedy (and the rest of the Court’s majority) didn’t fully appreciate how the FMLA might be impacted, we’ve got the Court’s back, as we discuss the issue more fully below:

How FMLA is Impacted after the Fall of DOMA

As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition.  “Family member” includes the employee’s spouse which, under the FMLA regulations, is defined as:

a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  29 C.F.R. 825.102

Initially, this seems to suggest that the DOL would look to state law to define “spouse.”  Not so fast. According to a 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife.  Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes.  As result, FMLA leave has not been made available to same-sex spouses.

That changed yesterday, at least in part.

What’s Clear about FMLA After the Court’s Ruling

In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse.”  Thus, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.

What’s Unclear about FMLA After the Court’s Ruling

But what about employees who live in a state that does not recognize same-sex marriage?  Are they entitled to FMLA leave to care for their spouse?

As an initial matter, the regulations look to the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for purposes of FMLA.  Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage.  This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g., Illinois, which recognizes same-sex unions, not marriages).

Surely, some might argue that the United States Constitution requires other states to recognize the marriage; however, this issue is far from settled.  My friend and Indiana University Maurer School of Law professor Steve Sanders writes a compelling article for SCOTUSblog contending that an individual married in one state maintains a “significant liberty interest” under the 14th Amendment’s Due Process Clause as to the ongoing existence of the marriage.

Here, employers clearly need some help from the DOL.  Might the DOL draft regulations on how employers administer the FMLA in situations where the employee’s spouse is not recognized under state law?  If so, we could see the DOL give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee got married.

Without more guidance, it still is too early to tell where this question is heading.  Nevertheless, the employer community looks forward to helping shape these rules.

Other Key Benefits Affected by the DOMA Decision

FMLA is not the only federal law impacted by the fall of DOMA.  If federal regulations follow through, some of the notable federal laws and benefits impacted may include:

  • Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do.  For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse (this was the factual scenario at issue in the decision). Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.
  • Affordable Care Act and COBRANPR reports that the Court’s decision will impact how the Affordable Care Act (affectionately referred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.
  • Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.
  • Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.
  • Citizenship:  According to NBC News, some 28,000 same-sex spouses who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.

For future updates on the impact of DOMA on FMLA and employee benefits generally, feel free to follow me on Twitter or Linkedin.  I’ll be posting more there.  You also can subscribe to this FMLA Insights blog on the right hand side of this page.  Just enter your address and I’ll email you my updates directly.

This article was originally printed on FMLA Insights on June 27, 2013.  Reprinted with permission.

About the Author:  Jeff Nowak is a management side attorney at Franczek Radelet P.C. and author of the FMLA Insights blog.

You Load Sixteen Tons and What Do You Get?

Wednesday, June 26th, 2013

I know what it’s like to depend upon coal to feed a family. Many years ago I worked at a steel mill in Ohio. My job was at the coke plant where West Virginia coal was turned into coking coal for the blast furnace. The top of the coke ovens was an area the size of a football field where monstrous machines funneled coal into the ovens. It was my job to put the heavy oven lids back on nice and tight.  It was literally as hot as hell up there. It felt like walking barefoot on hot coals. The air we breathed was truly foul but to us it was the sweet smell of something like success. We called it the smell of money because it paid the bills.

Yet as soon as I got a chance to escape the coke ovens, I took it. I got a job bid on a crew at the blast furnace. But I couldn’t escape the coal. Like the devil or a bad check, coal will find you. It followed me to the blast furnace.

Big railroad cars full of coking coal arrived at the blast furnace every two or three hours. In the winter it would get as cold as twenty below zero and the coal would freeze solid into one huge mass. The company said under no circumstances were we to climb into the open-top railroad cars to break up the coal. But the company also made it clear we better hurry up and get that coal offloaded. So in we went, carrying big torches to heat the coal and pry bars to break it up. We prayed that it wouldn’t loosen all at once with the possibility that we might go down the chute with it. Many times on a cold winter night I had to look in on my sleeping babies to motivate myself to leave for work on midnight shift.

There was a small group of environmentalists in town who kept raising hell about the pollution from the steel mills. I understood their point. After all, I was more directly affected by pollution than they were. But they didn’t even give lip service to our need to feed our families. So I dismissed them out of hand. In fact, I hated them and feared the changes they might be able to bring about. Jobs or the environment? An easy choice to make. Jobs are more important.

Eventually I was permanently downsized from the mill. The loss of my job caused severe dislocation for my family. It also caused dislocation in my mind, creating an opening, a new space. Facts and events that had once gone in one ear and out the other began to find a place in my thinking. Global warming. Poisoned rivers and oceans. Black lung disease. Hurricane Katrina. Oil spills. Coal-fired power plants spewing acid and deadly metals into our air.

Slowly and not always surely, I began to realize that the environmentalists I had once rejected as extremists were correct when they said that fossil fuels are destroying the earth. Coal and oil aren’t just causing some problems we can learn to live with in pursuit of economic survival. They are going to make it impossible for humans to live on this planet.

Jobs or the environment? Posing the question that way eliminates any chance of coming up with answers and it ignores the people who live at ground zero of the debate. I know first-hand what goes through the minds of coal miners as they sit at the kitchen table facing a pile of bills. “Yes, I know what some people say about what we do. They may even be right. But just give me one more month on this job so I can pay the rent and the electric and the credit card bill. Then maybe one more month after that and another after that until the youngest finishes school.”

Jobs or the environment? Soon it will be too late and we will have neither. Unless we come together under the banner of both.

 

This article was originally printed in Love and War: My First Thirty Years of Writing by Lee Ballinger.  If you would like to make a comment or to be notified when the book is published, please email rockrap@aol.com or go to http://www.facebook.com/leeballingerwrites.

The Lilly Ledbetter Fair Pay Act Took Us Back to the Status Quo: Gender Discrimination Lives On with the Gender Pay Gap

Tuesday, June 25th, 2013

Rebecca PontikesAmerican women were appalled when the U.S. Supreme Court snatched away Lilly Ledbetter’s gender pay discrimination victory over Goodyear Tire because Ledbetter did not know about repeated gender discrimination in pay at each moment it occurred.  In a decision that ignored workplace norms and realities, the Court explained that Ledbetter lost her right to sue for unequal pay because she did not meet a legal time limit for each discriminatory paycheck (even though she was unaware about the discrimination as it occurred).  The outcry started with Justice Ruth Bader GinsbergIn reading her stinging dissent from the bench, she observed “Pay disparities, of the kind Ledbetter experienced, have a closer kinship to hostile work environment claims than to charges of a single episode of discrimination.”  Ledbetter v. Goodyear, 550 U.S. 618 (2007).  The law recognizes that someone in a hostile work environment might take some time to piece it all together and sue, and that worker is not penalized for the time that realization takes with a strict time limit.

Congress reacted, and on January 20, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009.  The Ledbetter Act makes the time limit to bring a lawsuit for discriminatory wages more like that for a hostile work environment, making it a violation of Title VII every time someone receives a discriminatory paycheck and making recovery available for older violations if they are similar to newer violations.   Although there was much rejoicing, the Ledbetter Act did not radically change the law.  The only effect of the Ledbetter Act was to return the discrimination laws to their original purpose: to eradicate discrimination.

What the Ledbetter Act did not address was the troubling claim by the majority that Ledbetter’s later paychecks could not have been issued with the discriminatory bias because the supervisors who continued to pay less because of her gender did not make a decision to pay her less.  Ledbetter, 550 U.S. at 629.  By focusing on a literal, conscious, deliberative decision the U.S. Supreme Court discounted the role of reflexive bias (acting on gender stereotypes) in managerial decisions, including setting pay, which leads to discrimination. The discriminatory effect of reflexive bias is real.  Supervisors acting on stereotypes or on reflexive biases often make decisions based upon stereotypes about male and female roles, including deciding to pay men more and women less, even though they are not making a literal, conscious choice to discriminate and might even think of themselves as unbiased.  A decision to pay a female employee less might not be generated by a hostile thought process, yet the effect is just as illegal as a deliberate decision to act with discriminatory intent.  Stereotyping as illegal discrimination is not a new idea for the U.S. Supreme Court.  While it seems to have ignored it here, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court recognized that making a decision based on stereotypes about women or men, including how much (or little) to pay them, is discriminatory and illegal.

Historical wage data illustrates the significant effect of unconscious bias on decisions determining women’s pay.  In 1979, the first year for which comparable earnings data are available, women earned 62 % of male salaries.  By 2010, decades after Title VII and the Equal Pay Act had been in force, the gap had narrowed significantly, with women earning around 79 to 80% of the average male weekly wage.  However, it took over thirty years for the gap to narrow, and the gap has not budged since 2004. Women in the Labor Force: A Databook (2010 Edition)” Table 16, U.S. Dept. of Labor, U.S. Bureau of Labor Statistics, July 2011.  Even more disturbing are the statistics for working mothers.  While a childless woman earns 94 cents of a childless man’s dollar, mothers earn only 60 cents of a father’s dollar, even less than all women earned in comparison to all men in 1979.

Experimental research shows that mothers in particular are subject to pervasive reflexive gender bias.  In one study, test subjects were asked to review resumes that differed only in noting parental status.  The reviewers systematically rated childless women and fathers significantly higher than mothers on competency, work commitment, promotability, and recommendations for hire.  Reviewers gave mothers the lowest wage offers, averaging $13,000 less than wage offers made to fathers. Shelley J. Correll, Stephen Benard, and In Paik, Getting a job: Is There a Motherhood Penalty?, 112 Am. J. of Soc. 1297-1338 (2007).  This phenomenon occurs whether the woman is a low wage worker or a highly paid one. (See Chris Fleming, Gender Gap In Starting Physician Salaries Is Growing, Health Affairs Blog, February 3, 2011)  It is no surprise that among mothers in management, there is a gender pay gap relative to fathers ranging from 21% to 34%.  The wage gap among childless managers is notably lower than the wage gap, at 17% to 24%.  See Testimony of Michelle J. Budig, Assoc. Prof. of Sociology, Faculty Associate, Center for Public Policy Administration, Univ. of Massachusetts at Amherst, “New Evidence on the Gender Pay Gap for Women and Mothers in Management,” Sept. 28, 2010.  Putting these findings together, it is clear that there is a substantial bias against mothers, whether deliberate or unconscious, in the workplace that is causing a sizable gap between working mothers’ compensation and childless women and all men.

While the Ledbetter Act was certainly important to reverse the U.S. Supreme Court’s limitation on employee rights, it did nothing to address the status quo of wage inequality for women, particularly for working mothers.   What we now need are laws that address unconscious gender bias and combat enduring stereotypes about gender roles. One measure to combat this act is the Paycheck Fairness Act (“PFA”) (H.R. 377 and S. 84).  The PFA would change the manner in which female-dominated positions are valued, with provisions limiting an employer’s defense that compensation was based on factors “other than sex,” expanding damages, and proposing guidelines for employers on evaluating jobs without gender bias .  Although the bill has been introduced in the Senate since 2009, it has never mustered enough votes to pass.  In January 2013, Senator Milkulski has reintroduced the bill and it is currently sitting in committee. When a law like the PFA passes, we can make progress in addressing the invidious and unconscious discrimination that perpetuates the gender wage gap and finally close it.

About the Author: Rebecca Pontikes has been practicing law since 1997.  She has a passion for employment law and civil rights that drives her practice. In addition to employment, she also has brought suit under Title IX on behalf of a sexually assaulted student.  She is a graduate of the University of Michigan Law School and of Tufts University and is admitted to the Massachusetts bar, the Federal District of Massachusetts, and the First Circuit.  Her peers selected her as a “SuperLawyer” in 2004, 2007, 2008, 2009, 2010, and 2011.  Massachusetts Lawyer’s Weekly named her a Top Woman in Law in 2012.  She lives in Cambridge with her husband.

AFL-CIO Backs Amended Senate Immigration Bill, But Road to Citizenship Must Not Be Further Compromised

Monday, June 24th, 2013

Image: Mike HallThe Senate is expected to hold a key vote today on an amended comprehensive immigration reform bill that maintains a road map to citizenship for aspiring Americans, but also contains changes Republicans demanded to move the legislation forward. We will bring you the results of that vote as soon as it occurs. A vote on final passage is expected this week.

AFL-CIO President Richard Trumka issued the following statement on the amended Senate bill:

Building a commonsense immigration system that will allow millions of aspiring Americans to become citizens is a top priority for the labor movement in 2013. The Senate immigration bill represents an important step toward building such a system—even though it has become less inclusive, less compassionate and less just since it emerged in April as the Gang of Eight’s bipartisan compromise.

By legalizing millions of people who have been forced to live and work without the ability to exercise fundamental rights, the bill will go a long way toward lifting aspiring Americans out of poverty and raising standards and pay for all workers. But legalization is just the first step: a road map to citizenship is not only about economic fairness, it is also a civil rights issue. At its essence, America is about citizenship: the right to vote, the right to serve in public office and the responsibility to defend America’s values and the Constitution, which guarantees equality, justice, freedom and fairness.

Republicans have extracted a high price for moving this necessary legislation forward. The latest price for Republican support is the establishment of triggers to citizenship that, as Senator Leahy noted, read “like a Christmas wish list for Halliburton” and are clearly designed for one reason, to keep people from becoming citizens. There is no logical connection between achieving maximum militarization of the border and letting people who have spent 10 years in temporary status move closer to citizenship. Indeed, future Republicans afraid of immigrant voters might forestall achievement of triggers in order to deny citizenship to people who have satisfied a variety of conditions, including staying employed, avoiding public benefits and possessing no criminal history.

These triggers are on top of previous compromises of sound policy for Republican support, such as enabling American tech companies to fire local workers in order to bring in less well paid temporary H-1B visa holders. America deserves better.

We expect that we will be better off with the bill than with the continuing, catastrophic deportation crisis that is wrecking workforces, families and communities across our country.

For these reasons, the AFL-CIO urges senators to support this compromise bill—even as we make clear that no further compromise to the road map to citizenship can be tolerated by the labor movement or by our allies. Now it is time for the House to act and deliver a broad and certain path to citizenship.

At the same time, we renew our call to President Obama to ease this crisis by stopping the deportation of those who would qualify for relief under the bill.

This article was originally published in AFL-CIO on June 24, 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.

WORST SUPREME COURT ARBITRATION DECISION EVER

Thursday, June 20th, 2013

PaulBlandWeb-172So, today, in American Express v. Italian Colors, the U.S. Supreme Court said that a take-it-or-leave-it arbitration clause could be used to prevent small businesses from actually pursuing their claims for abuse of monopoly power under the antitrust laws. Essentially, the Court said today that their favorite statute in the entire code is the Federal Arbitration Act, and it can be used to wipe away nearly any other statute.

As Justice Kagan said in a bang-on, accurate and clear-sighted dissent, this is a “BETRAYAL” (strong word, eh?) of the Court’s prior arbitration decisions. You see, until now, the Supreme Court has said that courts should only enforce arbitration clauses where a party could “effectively vindicate its statutory rights.” Today, in a sleight of hand, the five conservative justices said that this means that arbitration clauses should be enforced even when they make it impossible for parties to actually vindicate their statutory rights, so long as they have a theoretical “right” to pursue that remedy.

The plaintiffs in this case, restaurants and other small merchants, claim that American Express uses its monopoly power over its charge card to force them to accept American Express’s credit cards and pay higher rates than they would for other credit cards. This is called a “tying arrangement” under the antitrust laws — American Express is alleged to be using its monopoly power over one product to jack up the price of another product to higher rates than it could charge in a competitive market.

For plaintiffs to prove this kind of case, they have to come up with hard evidence — economic proof — that costs hundreds of thousands of dollars. And each individual merchant has only lost, and thus can only hope to recover, a small fraction of that amount. The U.S. Court of Appeals for the Second Circuit recognized that if American Express’s arbitration clause (and particularly its ban on class actions) was enforced, that would mean that none of the small business plaintiffs could enforce their rights under the antitrust laws. And under a long line of Supreme Court cases, arbitration clauses are only enforceable when they permit the parties to effectively vindicate their statutory rights.

Today’s decision turns that rule on its head. According to Justice Scalia’s majority opinion, even if an arbitration clause would mean that no individual would ever actually be able to pursue an antitrust claim on an individual basis, the arbitration clause still has to be enforced. The law has changed dramatically — parties no longer have a right to “effectively” vindicate their statutory rights; they are left with the meaningless but formal right to pursue economically irrational claims if they choose to do so.

The decision is catastrophic for the antitrust laws, as well as for civil rights, consumer rights, and many other statutory rights. The decision is an unmitigated disaster, replacing adhesive contracts for an idea of actual law. The drafters of the FAA would not recognize what it has turned into.

Justice Kagan went on to state: “As a result, Amex’s contract will succeed in depriving Italian Colors of any effective opportunity to challenge monopolistic conduct allegedly in violation of the Sherman Act. … In the hands of today’s majority, arbitration threatens to become … a mechanism easily made to block the vindication of meritorious federal claims and insulate wrongdoers from liability.” Justice Kagan gets this one completely right. The entire point of the majority opinion is to use arbitration to insulate companies from any possibility of class action liability.

We used to have something called “The Federal Arbitration Act.” The Court today might as well have amended its real title to “The Federal Corporate Immunity Act.”

This article was originally printed on Public Justice on June 20, 2013.  Reprinted with permission.

About the Author: Paul Bland is a Senior Attorney at Public Justice.  He has argued and won more than 30 cases that led to reported decisions for consumers, employees or whistleblowers in four of the U.S. Courts of Appeals and the high courts of nine different states.

Fourth Circuit joins D.C. Circuit in striking down the NLRB's embattled Notification of Employee Rights

Thursday, June 20th, 2013

maria-greco-danaher_1The 4th U.S. Circuit Court of Appeals has affirmed an April 2012 decision of the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12), striking down the National Labor Relations Board’s (NLRB) controversial notice posting rule. The rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. Under the proposed regulation, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, then further postponed until April 30, 2012, and was effectively suspended by the federal court’s April 13, 2012 ruling, which now has been upheld. Chamber of Commerce of the United States v. NLRB, 4th Cir., No. 12-1757, 6/14/13.

Pointing out that the NLRB does not have authority to enforce the Act proactively, the 4th Circuit agreed with the lower court that “the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request.” The Court stressed that “[a]lthough the Board is specifically empowered to ‘prevent’ unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act.” In a thorough and well-reasoned opinion, the Court reviewed the NLRA’s plain language, structure, and legislative history, along with the history of subsequent labor legislation, in holding that the Board was not empowered to promulgate the rule. “Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so.”

The 4th Circuit’s opinion is even more favorable for employers than the recent decision by the D.C. Circuit Court of Appeals,National Association of Manufacturers v. National Labor Relations Board (D.C. Cir. May 7, 2013), which struck down the notice posting rule on the grounds that it violated Section 8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus,” when, in fact, Section 8 allows employer to express their views about unions and unionization, as long as the communications contained no threat or promise.

At this time, it looks as if the notice posting requirement is out of commission for the time being, with two federal appellate courts taking the position that the NLRB is without authority to require posting. However, it remains to be seen whether this phoenix will rise out of the ashes of these opinions and, if so, in what form it will return.

This article was originally printed on Employment Law Matters on June 14, 2013.  Reprinted with permission.

About the Author: Maria Greco Danaher is a shareholder in Ogletree Deakins.  She regularly represents and counsels companies in employment related matters.  She specializes in representing management in labor relations and employment litigation, and in training, counseling, and advising human resource departments and corporate management on these topics.  Maria has first chaired trials in both federal and state courts since 1986, and regularly instructs attorneys and students in issues related to trial tactics.

Black Swan Unpaid Interns Win FLSA Claim

Wednesday, June 19th, 2013

philip_miles_smallSome unpaid interns from Black Swan sued the production company for actual wages, and guess what? They won. A couple days ago the Southern District of New York issued its opinion in Glatt v. Fox Searchlight Pictures (opinion here).

The Court broke it down into two issues:

1. Were the interns employees under the FLSA?
2. If so, did they fall under the narrow “trainee” exception?

On the first issue, the Court applied Second Circuit utilizing the “formal control” and “functional control” tests. This determination will vary from jurisdiction to jurisdiction. But, as the Court noted, “in the end, it is all about control.” And that’s pretty consistent no matter what court you’re in.

The second issue is the particularly interesting part of this case. In determining whether the interns fell under the trainee exception the Court relied heavily on the six factors identified in a DOL fact sheet from 2010 (I blogged about this back in 2010):

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Court ruled that the unpaid interns were employees who did not fall under the trainee exception. Now, a Time magazine article is declaring this decision The Beginning of the End of Unpaid Internships. I don’t know about that . . . but I do know that this case is generating a ton of buzz, and it’s difficult for unpaid internships to be FLSA-compliant.

This article was originally printed on Lawffice Space on June 13, 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.

Dark Days for Philly Schools As Cuts Threaten to Decimate District

Monday, June 17th, 2013

P5034697Despite educators’ best efforts, urban school systems are bleak places to work at and learn in these days, no matter the city or one’s position in the school. But Philadelphia offers a particularly grim view of the dismantling of public education in the austerity era. Few American city school systems have faced measures as devastating as Philadelphia’s—at the very same time the state government has passed massive corporate tax breaks and increased funding for incarceration.

Citing a budget deficit of $304 million in the coming fiscal year, the city’s School Reform Commission voted in March to close 23 public schools, about 10 percent of the city’s total schools. And this week, the district announced a staggering 3,783 layoffs—676 teachers, 769 assistants and 1,202 school safety staff—if additional funds cannot be generated from the city, the state and concessions from public sector workers.

The closures were not Philadelphia’s first, nor were the layoffs—nine schools were closed andmore than 3,000 jobs were eliminated in 2011. In that year, Republican Gov. Tom Corbett slashed more than $1 billion to public education in the state’s budget (along with other brutal cuts to the social safety net throughout Pennsylvania).

Those measures were considered devastating at the time. The currently proposed closures and cuts go even deeper.

“Philadelphia schools are on life support,” says Ron Whitehorne, a retired teacher and activist with the community-labor group Philly Coalition Advocating for Public Schools, “and they’re about to pull the plug.”

The district is seeking $313 million before the end of the month. It is requesting more tax dollars—$60 million more from the city, $120 million from the state. But a plurality of its plan to close the deficit comes from union concessions and givebacks, to the tune of $133 million, most of which come from Philadelphia teachers.

Even at a time of widespread austerity, the scope of concessions demanded of Philly teachers is jaw-dropping. Under the district’s contract giveback demands, teachers earning more than $55,000 a year would receive a 13 percent pay cut, along with a 13 percent hike in health care contributions. Tenure and sabbaticals would be eliminated, the workday would be lengthened (and teachers would be forced to work additional hours off the clock without pay). Librarians would be eliminated, and schools would no longer be required to have counselors. Limits on class sizes would be lifted.

The proposal led Philadelphia Daily News columnist Will Bunch to write:

The time to stop this downward spiral of bulls–it is right now. … If this really is the deal, Philadelphia teachers need to walk off the job. That’s right — strike. And anyone who cares about the ability of the middle class to raise a family — particularly a well-educated family — needs to stand behind them.

City and state politicians might be able to justify the measures as painful but necessary decisions at a time of “shared sacrifice” if they weren’t simultaneously handing out hundreds of millions of dollars to corporations and Wall Street, upping their contributions to charter schools, and building a new prison. Last month, for example, the Republican-controlled state legislature passed a corporate tax cut that would cost the state $600-800 million per year, more than double Philadelphia schools’ deficit for the next fiscal year.

“How can you call for shared sacrifice while huge businesses are getting a tax break?” says Whitehorne.

The district spends more than 10 times the national average servicing its debt, with an astonishing $280 million—12 percent of its entire budget—going to interest payments and $161 million going to Wall Street firms in what have been called ”toxic” interest rate swaps, under criticism in other cities for unjustly robbing schools of resources.

“This is a [gubernatorial] administration that has bent over backwards to accommodate corporate interests,” says Whitehorne.

Charter schools have had to make some cuts over the years, but their percentage of the district’s total education budget—30 percent, at $729 million for FY 2014 (PDF)—continues to grow, with an estimated 40 percent of the city’s students slated to attend charters by 2017. And perhaps most incredibly, within days of the layoffs announcement, the state began work on a $400 million new prison north of Philadelphia.

The expansion of prisons at the time of massive school budget cuts makes some sense, since the 3,783 layoffs include the total elimination of all 1,202 of the district’s school safety workers, who monitor cafeterias, hallways and other areas of schools to de-escalate conflicts and violence between students, a longstanding problem in Philadelphia. If safety workers are eliminated, only police officers will remain in the schools, which could easily accelerate what activists call the “school-to-prison pipeline.”

Doris Hogue works at South Philadelphia High. She has worked as a school safety worker for 20 years, and is a member of UNITE HERE Local 247.  “At one time, there were interracial fights going on,” Hogue says, referencing widespread violence between African American and Asian American students in the school system several years ago. “We developed rapport with the children. They began to trust us, and we were able to help diminish much of the violence.” She says the number of violent incidents is down in her school. In a report released by UNITE HERE, 40 percent of student safety staff reported recently witnessing a violent incident where there were not enough safety personnel present to address it. If the layoffs go through as planned, there won’t be any.

“We’re not just safety staff—we’re like their mothers,” Hogue says. “They come to us if they hear a fight’s going to happen, or if they’re being bullied. I don’t think the district recognizes what will happen in September when the children come back to school without us there.”

Philadelphia was subject to what the Rand Corporation called “the nation’s largest experiment in the private management of public schools.” As reporter Daniel Denvir notes, that project included the takeover of Philadelphia public schools in 2002 by the state, which then established the School Reform Commission (SRC) “to oversee the district and turned 45 schools over to private managers, including for-profit educational management organizations.” But according to Rand, despite the massive number of schools privately managed, student achievement did not improve—and the school’s deficit only deepened. Rather than pull the district out of the red, privatization plunged Philadelphia schools further into it, thus justifying the need for further austerity measures.

Students, teachers and other education workers, and community members seem to be stepping up their pushback to the draconian cuts. In March, 19 people were arrested at the SRC meeting where the closures were voted on, including American Federation of Teachers President Randi Weingarten. (Whitehorne says those charges were dropped yesterday.) Students have ledmultiple walkouts throughout the city. Protests are continuing to ratchet up, including a scheduled rally in Harrisburg, the state capital, at the end of the month. But with almost half of the $323 million to plug the deficit coming on the backs of public-sector workers, the options for Philadelphia schools seem to range from bad to worse.

“If they don’t work anything out, and the money doesn’t come in, I feel it would be so dangerous for any schools to open,” says Hogue, the school safety worker. Come September, “I can’t imagine what it’s going to look like. It’s not going to be good.”

This article was originally printed on Working In These Times on June 14, 2013.  Reprinted with permission.

About the Author: Micah Uetricht is an In These Times contributing editor. He has written for SalonThe Nation,The American ProspectJacobin, and the Chicago Reader. Most importantly, he is also a proud former In These Times editorial intern.

Residents Win 15% Salary Increase after Public Campaign

Saturday, June 15th, 2013

The resident physicians at Kern Medical Center in Bakersfield, CA have ratified a new two-year contract that provides a 15 percent, across-the-board salary increase, a one-time travel reimbursement of up to $1,500 for an education conference, and quarterly labor-management meetings.

The contract was settled days after the residents held a letter-writing campaign and rally urging Kern County officials to come to the bargaining table and negotiate a fair agreement.

“Bakersfield deserves well-rounded physicians,” said Dr. Sarah Assem, an internal medicine resident and CIR delegate. “They deserve for the competitive residents to come to KMC and then to stay here and open up their own primary care practices, because in the end, that’s the goal of having a residency.”

Over 80 people, the majority interns and residents, attended the June 4 rally and press conference in front of the hospital. The campaign garnered media attention after CIR leaders presented research showing that Kern County residents were the lowest paid in the country, with interns starting at $40,500 a year.

The nurses’ union, SEIU 521, also put pressure on the county to negotiate decent wages for the residents.

“When I heard that our physicians-in-training are the lowest paid in the nation, I was appalled,” wrote Carmen Morales, a nurse practitioner and Vice President of Local 521, in an op-ed. “I value their strong work ethic and consider them to be steadfast teammates at KMC. Kern County faces a physician shortage, and residency serves as the best recruiting tool for bringing high caliber doctors to the region.”

The new contract takes effect July 1, 2013.

This article was originally printed on SEIU on June 14, 2o13.  Reprinted with permission.

About the Author: Heather Appel is the Communications Director at CIR/SEIU Healthcare.

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