Outten & Golden: Empowering Employees in the Workplace

Archive for July, 2013

You Won’t Believe How Walmart Responded to This College Student. Actually, You Will

Wednesday, July 31st, 2013

dougfooteWalmart, the country’s largest private employer and huge wielder of political influence, is taking on their greatest challenge yet: A college junior writing an op-ed in her student newspaper.

Georgetown University student Erin Riordan wrote a piece for The Hoya, the school’s student-run newspaper, in support of the Large Retailer Accountability Act (LRAA), which would raise the minimum wage for big-box retail employees to $12.50 an hour.

To deal with this threat, Walmart dispatched Steven Restivo, a senior director of communications at Walmart, to write a responding op-ed.

Erin’s piece on July 24 pointed out the reasons that many of us want the LRAA to become law: to establish a living wage for notoriously underpaid retail workers in one of the most expensive cities in the world. She also points to Walmart’s enormous revenue and their previous promises to pay $13 an hour. Perhaps, most importantly, she points to the LRAA’s ability to lift Washington, D.C., families out of poverty.

The current minimum wage creates a cycle of poverty where even full-time workers struggle to make a living, then transferring the burden of paying for necessities to the taxpayer.

In his July 29 response, Restivo, who we’ll mention again is a senior director of communications at Walmart responding to a student op-ed in a college newspaper, says LRAA is bad policy because it doesn’t apply to all residents.

Workers at places like Starbucks, McDonald’s, Exxon Mobil, Giant, Applebee’s, Safeway, Nike, Banana Republic, Five Guys and the Apple Store and hundreds more businesses like them aren’t covered by the LRAA. The legislation does not create a level playing field and imposes arbitrary costs on only a handful of businesses in D.C…that’s bad public policy.

Restivo is referring in part to the section of the LRAA that states, “employees are not barred from entering into a written valid collective bargaining agreement waiving provisions of this act if such waiver is set forth in clear and unambiguous terms.”He and other Walmart spokespeople have said this is a “discriminatory” exemption for unionized retail stores, when in fact it’s simply a bargaining chip workers can use in a collective bargaining negotiation, keeping $12.50 as the wage floor.(Not that we’re surprised a Walmart spokesman doesn’t fully understand unions or the process of management negotiating with workers.)

In addition, Restivo claims the full-time average wage for a Walmart associate in Virginia is $12.39 an hour, and yet he says a $12.50 living wage in Washington, D.C.—a more expensive place to live—is an “arbitrary cost.”

Refuting Restivo point by point could be the basis of a much longer post. But the fact remains that Walmart is so desperate, so insecure about their reputation and so prone to bullying behavior that when a college student writes an op-ed in a campus newspaper in support of a policy Walmart doesn’t like, they just can’t resist the urge to launch their PR machine at her.

Don’t let bullying rule the day. Tell Mayor Gray to sign the LRAA and help lift District of Columbia families out of poverty.

This article originally appeared on AFL-CIO NOW on July 31, 2013.  Reprinted with permission. 

About the AuthorDoug Foote is the Social Media and Campaign Specialist at Working America. He joined Working America in 2011 after serving as New Media Director for the successful 2010 reelection campaign of Senator Patty Murray (D-WA).

 

Fast Food Strikes Catch Fire

Tuesday, July 30th, 2013

David MobergEarly this morning, fast food workers in New York, St. Louis and Kansas City, Mo. launched strikes demanding both a wage increase to $15 an hour—from a median of $8.94—and the right to form unions without employer interference.

Later this week, workers in Chicago, Milwaukee, Detroit and Flint, Mich., will also go out on strike, expanding the reach of the movement of fast food workers (and, in Chicago, retail workers) that started with protests in New York and Chicago last year and grew into a series of one-day strikes throughout 2013. In Flint and Kansas City, strikes are taking place for the first time; in other cities, strikes will expand to target new franchises.

Organizers anticipate that thousands of fast food workers will join in the strikes, which coincide with heightened public awareness of wage stagnation and economic inequality. Some strikers may stay out longer than a single day.

The fast food strikes are part of a broader movement by low-wage workers for higher pay and union representation that has caught fire over the past year.

Targets include a range of employers, including Wal-Martfederal subcontractorswarehousesretail stores and car washes. Workers have typically formed loose local organizing committees that, with financial and logistical support from unions and community groups are growing into national networks, most prominently OUR Walmart.

This low-wage service and retail worker movement has tapped into a vein of discontent. But it has also created hopes for change through the fledgling campaign’s remarkable success with imaginative tactics.

“I’ve always dreamt about a moment like this,” says Terrance Wise, a 34-year old fast food worker and father of three in Kansas City. “But what am I going to do by myself? There’s strength in numbers. It’s a beautiful thing, a positive thing, that’s going to change this country. … My job should be a good job.”

Although he works long hours at his two part-time jobs—8 years at Burger King (now for $9.35 an hour) and 2 years at Pizza Hut (for $7.45)—and his wife also has a low-wage job as a home healthcare aide, Wise struggles to make ends meet. He recently lost his house to foreclosure and had to move in with relatives.

Overall conditions in the industry have not changed as a result of the movement, but some workers have won improvements. In Chicago, organizers say, workers at some McDonald’s and Macy’s locations received modest pay increases after the April strike. Dock worker Andrew Little, 26, said that managers raised pay from $9 to $11.26 an hour for him and his coworkers after they participated in the Chicago strike.

“I was honestly shocked,” he said. “We told ourselves it wouldn’t happen overnight. My first thought was the strike really did have an effect.”  But Little remains focused on his “main goal”: to form a union. “We want both a raise and to sit down with management and talk about how we can better serve the store and the store can better serve us,” he says.

As happy as he is with his raise, he is especially pleased that no striker was fired or disciplined. “That’s the best part,” he said.  Like other strikers, he returned to work accompanied by supporters—a dozen community representatives, clergy and organizers—who insisted that he should not suffer any retaliation. Workers have a real fear of being fired, Little says, but that can be prevented “if enough of us all stand up and demand respect.”

Not all employers responded positively, at least not at first. After strikes in St. Louis in May, some participating workers lost hours, pay, shifts or promised transfers, according to Jobs With Justice leader Rev. Martin Rafanan. But Jobs With Justice delegations went to the restaurants and talked with managers, corporate representatives or even, in one case, the corporate general counsel. “All of the cases were resolved in favor of the workers by the well-coordinated responses of community leaders,” he says.

There’s only one documented case of a striker being fired during this year’s wave of fast food job actions: Greg Reynoso, from a Brooklyn Domino’s. Fast Food Forward, the New York branch of the movement, responded by making his employer the first target of the current strike. On Friday, organizers report, 14 of 15 Domino’s delivery drivers did not show for work, effectively shutting down the operation on its busiest night. Meanwhile, roughly 60 supporters, including U.S. Rep. Nydia Velázquez (D-N.Y.), gathered outside the Domino’s to protest Reynoso’s dismissal.

The actions come at a time when issues of inequality and the minimum wage have taken the national stage. President Obama is on tour giving high-profile speeches on economic inequality, and a Hart Research poll shows that 80 percent of the public supports the proposal by Sen. Tom Harkin (D-Iowa) and Rep. George Miller (D-Calif.) to raise the federal minimum wage from $7.35 to $10.10 in three steps.

Fast-food workers’ poverty wages were spotlighted last week when everyone, from Stephen Colbert to The Atlantic, made sport of McDonald’s for unintentionally debunking its own claims that it provides a living wage. A model budget McDonald’s created for its workers recommended holding two jobs (which is tricky with fast-food jobs, which require workers to be available on-call) and included nothing for heating, far less for health insurance than the cheapest McDonald’s plan, and other fantasies. Implicitly, the budget showed what strikers know: it’s hard to make ends meet on less than $15 an hour.

This article originally appeared on Working in These Times on July 29, 2013.  Reprinted with permission.

About the Author: David Moberg is a senior editor of In These Times, and has been on the staff of the magazine since it began publishing in 1976.

Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace

Monday, July 29th, 2013

Curt SurlsImagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.”  It is July 2013.  After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.

Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant.  Lou is an overweight, balding, married father of three grown daughters.  Lou offers Mary an associate producer position, reporting directly to him.  Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace.  Edie demands that Mary be fired immediately.  Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional.  Lou fires Mary.  He replaces her with Rhoda.  In Iowa in 2013, Mary has no legal recourse.

This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive.  Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms.  In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.”  Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).

The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.

Here is the official photo of the Justices of the Iowa Supreme Court.  See if you can spot what they all have in common.

scotus

Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant.  For ten years, she was an exemplary employee.  She regarded her boss as a “father figure.”  Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant.   In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage.  Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson.   Ms. Nelson sued for gender discrimination.  The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.

The Court’s original decision in late 2012 was greeted with outrage and ridicule.  In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial.  Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself.  “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left).  “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”

Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere.  Of course it was “because of sex.”  If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss.  If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her.  Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.

But back to Mary Richards.  In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune.   What if he re-hired Mary?  Could Edie get her fired again in California?  Not likely.

The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit.   The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination.  California state law takes a broader view of the impact of sexual favoritism on the workplace environment.  Our Supreme Court has recognized that sexual favoritism is not merely a private matter.  Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women.  California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.

And besides.  Why would Lou even listen to Edie?  They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried.  You can watch the wedding here.

Article originally appeared on CELA Voice on July 25, 2013.  Reprinted with permission. 

About the Author: Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation and has worked for the State of California as counsel to the Director of the Department of Industrial Relations.  CELA VOICE is a project of the California Employment Lawyers Association.  Our goal is nothing short of changing the discussion about issues of importance to California employees.  Our method is simple.  We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health. The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.

Workplace Bullying vs. Workplace Harassment: Is There a Difference?

Friday, July 26th, 2013

Teresa Zerilli-EdelglassBack when my workplace nightmare first began in 1992, during an 11-year tenure at New York City Transit that ended in termination on the heels of a hard-fought federal court victory, there was no such thing as “workplace bullying”.  Bullying – or at least the term – was reserved for what one mean-spirited kid did to another in the schoolyard.  However, “bullying” has now become the catch phrase for every mean-spirited act that one human being commits against another, whether in the workplace or the schoolyard — or just about anywhere!

Just at the time when I was finally beginning to realize my American Dream, the harassment began. Over time, with no help in sight, it escalated to epic proportions, causing debilitating mental illness that would eventually render me incapacitated.  What I experienced back then was characterized as “harassment”. Today, this same treatment has evolved into “workplace bullying”, though legally speaking, it is still called harassment.  (Unless I’ve missed something, I’ve never heard of anyone filing a “workplace bullying” claim.) Still, if one is harassed, he is being bullied.  But are these terms legally interchangeable?  Is it just semantics that separates them?  Or do they, in fact, have different meanings.

We have traditionally associated workplace harassment with the unlawful behavior described under the various acts created by Congress to protect workers from unfair employment practices.  Legislative measures (such as Title VII of the Civil Rights Act of 1964) exist to protect workers from discrimination against age, gender, race/color, religion, national origin, disability, genetic information, pregnancy, and compensation.  It also prohibits sexual harassment and retaliation.  While this might sound like a fairly inclusive body of protection, do these seemingly well-intentioned laws really cover everything?  Should protection be afforded only to these “protected classes” for the specific violations they are designed to address?

The short answer: no.

An obvious gaping hole in employment law still remains; the door is wide open for a cornucopia of offenses screaming to be addressed.  For instance, what about the fat person, the ugly (or pretty) one, the smelly one or the annoying one?  And how about the once untouchable white guy who gets wrongfully kicked around?  These folks have no real recourse except to complain to their supervisors, who, in all likelihood are ill-equipped to handle such matters.

When I worked for New York City Transit, I witnessed bullying like it was for sport.  In fact, it was the managerial style of choice. When one of “the men” as they referred to themselves, got out of line in any way believed to be even remotely threatening, he would likely pay for it lest he fell back in line posthaste.  God forbid, he resisted for he would be shipped off to the most undesirable location, usually the place no one wanted to be and that would make his life a living hell.  In fact, that same threat was deviously employed on job interviews.  One was pretty much forced to say he was okay with working at any one of the numerous locations in the system, albeit an outright lie.  Then, once he conceded to being the flexible, indispensable best man for the job, he might well find himself in one of our little “Siberias” anyway because, after all, he said he was willing to go there.  A real Catch 22, for sure.

Was this modus operandi unto itself harassment in the legal sense – or was it simply bullying? Well, unless one individual of a particular protected class, let’s say an employee over 40 amidst a group of twenty-somethings was singled out, it wouldn’t be classified as unlawful; however, it is not less wrong and must be treated as such.  Working forever shrouded in fear of retribution is unacceptable.

Since having written Thrown Under the Bus: The Rise and Fall of the American Worker, it is amazing how many folks have felt compelled to come forward to share their workplace horror stories with me.  They, too, attest that it is the bully’s way or the highway – with no help in sight.  I pray that my book serves to lend some insight to ways in which to successfully navigate “the system” without undue repercussion.

In a nutshell, the message is this: workplace harassment has evolved to a new form of the same called ‘workplace bullying’, the catch-all phrase for the ubiquitously inappropriate treatment of anyone and everyone where such behavior rises to the same egregious level of currently actionable legal claims under the law. If you can prove that which you claim to have occurred as having risen to the same degree of unlawfulness as prescribed by Congress, you shouldn’t need to be part of a protected class, just an aggrieved employee of any stripe with a legitimate claim.

Printed with permission

About the Author:  Teresa Zerilli-Edeleglass is the author of Thrown Under the Bus: The Rise and Fall of the American Worker, the provocative true story that begs the question: Is the American Dream ours for the taking, or can it just be taken away?  Ms. Zerill-Edelglass earned a Bachelor of Science degree from St. John’s University in 1989 and an Executive Masters in Public Administration from Bernard Baruch College in 1992. It was in 1988 that the opportunity presented itself for Ms. Zerilli-Edelglass to switch gears from the private to the public sector, one she enthusiastically embraced. No sooner had all of her hard work finally begun to pay off when everything suddenly went up in smoke, laying the groundwork for ‘Thrown’.  Thrown Under the Bus: The Rise and Fall of the American Worker is available online at AmazonBarnes & Noble, and through the author’s website.

Banking On Bankruptcy: Emails Suggest Negotiations With Detroit Retirees Were Designed To Fail

Thursday, July 25th, 2013

Even before one of their own was appointed emergency manager of the city, lawyers who were consulting with Michigan officials over the winter believed Detroit should move into bankruptcy proceedings that would free the city to walk away from its commitments to retirees. Emails between Kevyn Orr — now Detroit’s emergency manager but at the time an attorney for the law firm Jones Day — and his colleagues show the lawyers believed moving directly to bankruptcy would be better for the city than going through a serious negotiating process.

In one email, an assistant to Gov. Rick Snyder (R) promises to set a meeting between Orr and someone “who is not FOIAble,” suggesting an intent to evade transparency laws. In another, Jones Day lawyers suggest to Orr that elevating Detroit’s bankruptcy in national media coverage would “give you cover and options on the back end to make up for lost time there.” Orr rejected that suggestion as unhelpful. Jones Day continues to represent Detroit in the proceedings, which could take a year or longer.

The messages made public thusfar show Jones Day attorneys defining bankruptcy as inevitable in their own words.

“It seems that the ideal scenario would be that Snyder and Bing both agree that the best option is simply to go through an orderly Chapter 9 [bankruptcy],” one Jones Day attorney writes to Orr in the emails. “Appointing an Emergency Manager, whose ability to actually do anything is questionable given the looming political and legal fights, would only serve to kick the can down the wrong path and unreasonably delay any meaningful resolution of Detroit’s problems.” Defining bankruptcy as the only route to a “meaningful resolution of Detroit’s problems” casts further doubt on the intent of the negotiations that followed Orr’s appointment in March, but a spokesman for Orr called those doubts “absurd.”

The emails were released in response to a Freedom of Information Act request by Robert Davis, a local labor activist with a troubled history. Davis faces federal corruption charges over school board funds that were spent on an advertising campaign. When the charges were filed in 2012,Davis called them politically motivated and said he is innocent.

One January exchange shows Orr reluctant to take on the emergency manager job, and concerned that the law empowering Gov. Rick Snyder (R) to appoint such officials “is a clear end-around the prior initiative that was rejected by the voters in November.” One January 31, Orr wrote that the entire emergency manager system “appears to merely adopts [sic] the conditions necessary for a chapter 9 filing.”

Orr’s assessment of the emergency manager process reinforces retiree advocates’ arguments that Orr’s actions once appointed were not good-faith negotiations with city employees, but an effort to check necessary boxes prior to filing for bankruptcy. In June, when Orr issued a proposal to retirees and bondholders in lieu of declaring bankruptcy, analysts wrote that the proposal appeared designed to be unpalatable, paving the way for the bankruptcy filing. Orr and Snyder have made clear that the bankruptcy resolution will include some cuts to retiree benefits, which are about $1,600 per month for most of the city’s 21,000 pensioners. “They made me some promises, and I made them some promises,” 76-year-old retired police sergeant William Shine told the New York Times. “I kept my promises. They’re not going to keep theirs.

Some legal hurdles may prevent the city from reneging on pension promises in bankruptcy, but the outlook is uncertain.

This article originally posted on ThinkProgress on July 23, 2013.  Reprinted with permission. 

About the Author:  Alan Pyke is the Deputy Economic Policy Editor for ThinkProgress.org. Before coming to ThinkProgress, he was a blogger and researcher with a focus on economic policy and political advertising at Media Matters for America, American Bridge 21st Century Foundation, and PoliticalCorrection.org.

Indiana Working Families Win Dramatic Improvements In Workers' Compensation Insurance

Wednesday, July 24th, 2013

Kenneth-Quinnell_smallThe Indiana State AFL-CIO fought for and won dramatic improvements in the workers’ compensation system this year. Over the next three years, several major increases in benefits and new workers’ rights will be phased in. This will mitigate the effect of workplace injuries on those hurt on the job and their families in the Hoosier State, the Indiana State AFL-CIO reports.

The first part of the new legislation will increase wage replacement benefits. Starting in July 2014, the cap (currently at $975) will be raised by 20% over the following three years to a total of $1,170 in 2016. More workers will receive a full two-thirds of their weekly wage.

The next effect of the legislation deals with increasing compensation for people permanently impaired from a work-related injury. Current law requires doctors to determine how much the injuries impair the employee and compensation is paid to the injured party based on the severity of the impairment. Starting in July 2014 and phased in until 2016, the compensation for work-related injuries will be increased 18 to 25% (based on the severity of the impairment).

Finally, the last new effect of the law will be to place a cap on the amount hospitals will be paid for their services. Hospitals will be paid 200% of the amount Medicare would pay for the same service. Injured employees will not be charged for medical services, which are paid by the employer or the employer’s insurer.

Nancy J. Guyott, president of the Indiana State AFL-CIO, applauded the changes as a move in the right direction via press release:

“Let’s be clear: it’s never OK when your job hurts. And we have a long way to go to make our worker’s compensation system what it should be for workers and their families when an injury does happen. However, these increases are the largest increases workers have won in decades and they begin to move us in the right direction. “

This blog originally appeared in AFL-CIO NOW on July 23, 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.

The Most Injurious Job in America

Tuesday, July 23rd, 2013

Mike ElkWhile hospitals are better known for treating injuries than causing them, statistics show that for workers, hospitals can be a dangerous place. A new report put out by Public Citizen found that in 2010, healthcare workers (including hospital staff) reported 653,900 workplace injuries and illnesses. That’s approximately 152,000 more (a 432 percent higher rate) than the industry with the second highest number of injuries—manufacturing—even though the healthcare sector is only 134 percent larger than the manufacturing sector.

Part of the reason that healthcare workers’ injuries may have flown under the radar is because of the type of injury involved. Unlike manufacturing and construction, where injuries are more likely to result in death, healthcare workers mainly suffer non-lethal musculoskeletal disorders. The rate of musculoskeletal disorders among workers in the healthcare industry is seven times higher than among other workers—a trend that Suzy Harrington, director of the American Nurses Association’s Department for Health, Safety and Wellness, calls “alarming.” Although these conditions aren’t fatal, if untreated, they can lead to permanent disability.

The most common cause of musculoskeletal injuries for healthcare workers is lifting patients by hand instead of using a mechanical device. Yet while ten states, including Washington, California and Maryland, have dramatically reduced injuries by passing safe patient handling laws, which mandate that hospitals “furnish mechanical lifting and transfer devices,” no nationwide standard exists to protect healthcare workers.

Another major danger for healthcare workers is workplace violence. Workers in the healthcare sector suffer 45 percent of all incidents of workplace violence, and nursing home employees are especially affected, with seven times the average rate of injury from workplace violence. Violence in medical settings may arise from interactions with belligerent patients, who may be drunk, drugged or emotionally disturbed. Yet the Occupational Safety and Health Administration (OSHA) has never made a rule to require healthcare facilities to implement safeguards for their employees (such as metal detectors, security guards or even locked doors to isolate patients in guarded areas.) This is part of a larger problem: There are no federal OSHA rules requiring employers to ensure workplaces are safe from violence.

But workplace safety advocates say that OSHA’s particular lack of focus on the healthcare sector is symptomatic of the agency’s slow response to the shift to a service-based economy.

“OSHA has not been able to keep pace with the way the economy has shifted over the last 20 years,” says Keith Wrightson, worker safety and health advocate for progressive watchdog group Public Citizen. “The economy has shifted away from one that is industrially-based to one that is service-based. They are hardly any rules that directly affect the healthcare industry. We counted them out and there are only nine rules, but if you look at construction and manufacturing, there are literally hundreds—and rightly so, those industries are highly dangerous.”

OSHA, for its part, insists that it is very concerned about safety in the healthcare industry.

“Employers have the legal responsibility to provide workplaces free of recognized hazards.  They must take ownership over this issue, and our role is to see that they do,” says Assistant Secretary of Labor for OSHA David Michaels. “OSHA has a variety of tools at its disposal to hold employers accountable for safety and health, and we are committed to improving safety and health conditions for our nation’s healthcare workers. Under this administration, OSHA has done more than any previous administration to address the issues that persist in this industry.”

In response to questions from Public Citizen, OSHA elaborated on these efforts, explaining that it has instituted recent programs “to encourage employers in hospital and healthcare facilities to reduce hazards. For example, Assistant Secretary for OSHA David Michaels launched an OSHA initiative to work with hospitals and nursing homes to recognize the close link between patient safety and worker safety.”

However, when it came to passing concrete rules regulating the musculoskeletal injuries that plague the healthcare industry, OSHA ran up against a major stumbling block: Congress. In 2000, OSHA passed a rule aimed at reducing musculoskeletal injuries by making employers adopt measures shown to reduce ergonomic injuries. But in 2001, a Republican-led Congress repealed the rule. OSHA has since attempted to use the general duties clause under the Occupational Safety and Health Act to cite employers whose ergonomic conditions present a clear danger to workers, but that poses a trickier legal case to make than if there was were a specific rule, and in the past two fiscal years OSHA has only done so seven times, according to the report put out by Public Citizen.

In response to questions from Public Citizen about whether or not the agency intended to issue a another ergonomic rule, OSHA said, “At this time, OSHA is not pursuing a rule on safe patient handling for healthcare workers. We continue to be concerned about this serious issue and promote sensible solutions through the  NEP [National Emphasis Program] guidance and outreach activities. However, OSHA does not have resources to move forward on all rulemaking necessary to address all the pressing workplace health and safety hazards.”

Rules, however, are only the first step. For instance, while OSHA has rules in place to prevent healthcare workers from being accidentally stabbed, they still suffer an alarming 400,000 stab wounds a year from surgical instruments and needles. Public Citizen’s Wrightston says that such injury rates are unnecessarily high because OSHA, with its limited budget of only $565 million, has few resources—and what resources it does have are not focused nearly enough on healthcare workers, he says.

“OSHA has devoted relatively little effort to addressing the safety risks in healthcare compared to other highly afflicted industries,”  says Wrightson. “For example, health care workers outnumber construction workers more than 2 to 1, but OSHA conducts only about one-twentieth as many inspections of health care facilities as construction sites.”

Indeed, statistics show that OSHA conducted 52,179 inspections of the construction industry in 2010, which employs 9.1 million workers and saw 74,950 injuries that caused workers to take at least one day off work. In comparison, last year OSHA conducted only 2,540 inspections of the healthcare industry, though it employs more than twice as many workers and saw 176,380 such injuries.

Some of the differential is due to the higher mortality rate for construction injuries, which cause five times as many deaths on the job. However, according to the Public Citizen report, “Even if fatalities were the only factor considered, healthcare inspections would need to be increased by about a factor of four to bring them into parity with construction sector inspections.”

Another gap in OSHA coverage, advocates say, was built into the agency’s NEP iniative, which was created in 2011 to focus on nursing home occupational safety—but not hospitals. “We want the National Emphasis Program to focus on hospitals. OSHA could do this right now with the swipe of pen,” says Wrightson. “The reason that they have not concentrated on hospitals is due to industry lobbyists.”

OSHA did not answer Working In These Times’ inquiries about why the National Emphasis Program (NEP) has not been expanded to target hospitals, but did point to its educational programs on workplace safety for hospitals.

Advocates insist, however, that Congress and OSHA must go beyond education to better enforcement and rulemaking in order to prevent injuries in the healthcare workplace. At the end of the day, advocates say, those that suffer the most from injuries to healthcare workers are patients.

“[Musco-skeletal injuries are] a primary reason healthcare workers leave direct patient care,” says Harrington. “We can’t afford to lose healthcare workers to injury and still meet rising demands for healthcare services.”

Article originally posted on Working In These Times on July 22, 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.

80% of Low-Wage Workers Lack Even One Paid Sick Day a Year

Monday, July 22nd, 2013

Jackie TortoraMore than four in 10 private-sector workers and 80% of low-wage workers do not have paid sick days. This means people, especially women who are more likely to work in low-wage jobs, constantly have to choose between their health and a paycheck.

A post in Jezebel, brought to you by the AFL-CIO, explains why the lack of paid sick days causes a ripple effect on our health and communities:

In fact, more than 80% of low-wage workers don’t receive a single paid sick day all year. This contributes to the creation of a sickness loop: contagious kids go to school because mom can’t stay home with them; expensive emergency room trips are made that could’ve been prevented; employees show up to work and spread viruses to their customers and co-workers.

When young women can’t stay home to get their sleep and soup on, they venture out into the world where they touch handrails with contaminated hands and sneeze on things. This is the sick, sad world Daria warned us about.

The National Partnership for Women & Families reports that adults without paid sick days are 1.5 times more likely to come to work sick with a contagious illness like the flu:

For example, more than three in four food service and hotel workers (78%) don’t have a single paid sick day—and workers in child care centers and nursing homes overwhelmingly lack paid sick days. This threat to public health is clear.

Last week, House Democrats released a women’s economic policy agenda that including expanding paid sick and family leave.

Originally posted on AFL-CIO NOW on July 22, 2013.  Reprinted with permission

About the Author: Jackie Tortora is the blog editor and social media manager at the AFL-CIO.

Will immigration reform protect workers?

Friday, July 19th, 2013

eidelson_100As House Republicans mull maiming the Senate’s immigration bill, a thousand pundits are asking what their moves will mean for future elections. Meanwhile, far from the spotlight, some courageous immigrant workers are asking whether Congress will finally disarm employers who use immigration status to silence employees. If Congress punts on immigration reform, or merely passes an industry wish list, it will have doubled-down on complicity in a little-discussed trend that’s driving down working conditions for U.S.-born and immigrant workers alike: For too many employers, immigration law is a tool to punish workers who try to organize.

The workers watching Congress include Ana Rosa Diaz, who last year was among the Mexican H-2B visa guest workers at CJ’s Seafood in Louisiana, peeling crawfish sold by Walmart. Accounts from workers and an NGOassessment suggest the CJ’s workers had ample grievances, from the manager that threatened them with a shovel, to the worms and lizards in the moldy trailers where they slept, to the swamp fungus that left sticky blisters on their fingers as they raced through shifts that could last twenty hours.
To maintain that miserable status quo, workers allege, management regularly resorted to threats. The most dramatic came in May 2012, when they say CJ’s boss Mike LeBlanc showed up at the start of their 2 a.m. shift to tell them he knew they were plotting against him, and that he knew “bad men” back in Mexico, and to remind them that — through labor recruiters there — he knew where their families lived. Then LeBlanc ticked off some names, including Diaz’s daughter. Diaz told me the threat of violence was all too clear: “I’ve never been so afraid of anybody in my life.”

Long before that speech, CJ’s workers say their managers deployed an all-too-common threat, what they call the “black list”: not just being deported back to Mexico, but being prevented by recruiters there from ever working in the United States again. “That’s what makes us the bosses’ subjects,” Diaz told me in a 2012 interview. “We’ve realized most bosses use the same tactics…” said her co-worker Martha Uvalle. “‘I’ll send you back to Mexico. I’ll report you to immigration. You’ll never come back.’” (CJ’s Seafood did not respond to various reporters’ requests for comment last year, including mine. Efforts to reach the company for comment last week were unsuccessful.)

Guest workers aren’t the only immigrants whose bosses can wield their immigration status as a weapon. Too often, employers who’ve happily gotten rich off the labor of undocumented workers develop a sudden interest in those employees’ legal status once they start speaking up. A few days after three-year subcontracted food court employee Antonio Vanegas joined a strike in the government-owned Ronald Reagan Building, he was detained by Homeland Security and placed in a four-day immigration detention. The same day that workers at Milwaukee’s Palermo’s Pizza plant presented their boss with a union petition, management presented workers with letters stating they’d need to verify their legal status. Ten days later, Palermo’s fired 75 striking workers, arguing it was just following immigration law.

For every immigrant worker that risks retaliation, there are others that choose not to, chastened by a well-founded fear that their status will be used against them. (There’s a risk of retaliationanytime U.S. workers try to exercise workplace rights, but the threat for undocumented or guest workers is particularly acute.) That vulnerability holds back the efforts of unions and other labor groups to organize and transform low-wage industries — or even to ensure employers pay minimum wage to their workers, immigrant or otherwise. It helps explain why the center of gravity in organized labor — long the site of struggles between exclusion and equality — has swung decisively in recent decades to support immigration reform. Rather than pushing to deport immigrants, unions (including my former employer) are mostly trying to organize them. The less leverage employers have over immigrants’ legal status, the more leverage immigrant and U.S.-born workers will have to wrest dollars and dignity from their bosses together.

The Senate’s immigration bill takes a few key steps to make that easier, each of which activists expect will face strong opposition in the House. The bill features a path to citizenship that organizers expect will help disarm deportation-happy bosses by allowing millions of workers to obtain secure and equal legal status. It creates a new “W visa” program with more labor protections that advocates hope will become a template to someday replace existing guest worker programs like the H-2B. And the bill includes several anti-retaliation measures designed to stem abuse: from more chances for workers who exposed crimes to get special visas or stays of deportation, to language overturning a Supreme Court decision that prevented illegally fired undocumented workers from getting back pay.

Those pro-labor provisions already come with painful sacrifices. Even before the Senate pegged it to a militarized “border surge,” that path to citizenship was long and littered with obstacles. Those include a requirement of near-continuous employment that advocates warn could still leave immigrants especially vulnerable to retaliatory firings, and an exclusion based on criminal convictions that — combined with a mandate that employers use the controversial status-checking software e-Verify — could leave some workers more vulnerable than ever. And advocates note that the H-2B program could at least temporarily more than double in size during the bill, though it would be subject to some modest new protections.

Facing a hostile House, labor officials are framing those Senate compromises as a floor for labor language in immigration reform: “There can be no further erosion of rights, and we’re protecting that as it goes to the House,” says Ana Avendaño, the AFL-CIO’s Director of Immigration and Community Action. But the Senate provisions are more likely to be treated as a ceiling. “We’ll lose all of the worker protection stuff in the House,” said a different advocate working on immigration for a union, and then “hope that reason prevails in the conference” committee tasked with reconciling Senate and House legislation.

The CJ’s Seafood story has an unusual ending: After their boss’s implied threat to their families, Diaz and seven of her co-workers mounted an against-the-odds strike. “We felt,” Diaz told me, “that if we didn’t do something to stop this, sometime in the future, it would be our children going through it.” You won’t find much such courage in Congress.

Article originally published on Reuters on July 17th, 2013.  Reprinted with permission
 
About the Author: Josh Eidelson is a reporter covering labor as a blogger for The Nation and a contributing writer for Salon. He worked as a union organizer for five years.

Why the Revival of US Labor Might Start with Nonunion Workers

Thursday, July 18th, 2013

abdFor workers in America, it can be hard to know where to turn when a boss pays you late or not at all, doesn’t provide benefits, or just yells at you for no good reason.

That’s why a Working America, a “community affiliate” of the AFL-CIO that focuses specifically on nonunion workers, launched a website last month that makes it easy to get that kind of information. FixMyJob.com is a bit like WebMD, but instead of typing in your aches and pains, you tell it about problems at your workplace. Launched on June 5, the site has already garnered 5,000 visitors, according to Working America organizer Chris Stergalas.

After choosing from a comprehensive list of workplaces and problems, visitors to FixMyJob.com get a set of resources and options for taking action. While unionization is a part of the solution for many problems, the site also informs workers about labor laws and instructs them on how to advance proposals to defend their rights. The site is a part of Working America’s expanded new campaign to organize people in their communities in all 50 states, says Executive Director Karen Nussbaum.

In both online and offline campaigns, Nussbaum said, the aim of Working America is to reach beyond the workplace and rally support at the local level for a pro-labor agenda. Working America’s list of priorities includes living wage laws, expanded health care, adequately funded public schools, and the protection of voting rights.

Before the launch of Working America, Nussbaum had served as founder and director of 9to5, National Association of Working Women; as director of the Women’s Bureau of the U.S. Department of Labor; and as an advisor to former AFL-CIO president John Sweeney. I recently spoke with her about her vision for Working America, about FixMyJob.com, and about what the 50-state expansion means for the prospects of union revival.

Working America was founded in 2003 partly as an answer to the question of how to mobilize people who are not union members but would benefit from activism by and for working people. Nussbaum said that, from the beginning, her staff “concentrated on talking to workers in their communities.” Scoring success in mobilizing blue-collar voters for electoral campaigns, the organization created a foundation of members, and it is increasingly attempting to mobilize them around broader issues like working conditions, paid sick leave, and the right to join unions.

She added that the ultimate goal of Working America is “finding the connections with collective bargaining.” But she’s experimenting with different ways of organizing that might lead there. “It’s about taking whatever path opens on the way.”

In past years, Working America focused on battleground states during elections. But regional and statewide labor federations have pushed the organization to expand to all 50 states over the next five years. At first, Nussbaum said, that goal seemed “preposterous,” but she has come to embrace it. Ultimately, she said, she appreciated the strategic value of supporting local labor structures as they connect with community allies and work on issues that go beyond a single workplace.

One reason why the 50-state strategy is necessary is the national proliferation of so-called “right-to-work” laws and attacks on voting rights, two issues that Working America has taken up in Pittsburgh, Penn..

Nussbaum describes the approach taken by activists leading the Pittsburgh campaign:

These are a group of mostly white people in their 40s and 50s. They decided that voter protection actually was the key issue for them. Their group set a goal of reaching a million people in the Pittsburgh area on the issue. Part of that million was going to be reached by doing letters to the editor and circulation of the newspaper and so on. It also included things like a guy who said, “I go to my hardware store every weekend and everybody there knows me, so I will set up a table at the hardware store every weekend,” which is what he did. Another woman said that she dropped her father off at adult daycare every day, and so she would talk to the workers and other people at the adult daycare center.

This type of organizing taps into the existing frustrations that people have—in the Pittsburgh case obstacles to voting—and showing them how they can make a difference. “It’s everybody recognizing their own networks,” Nussbaum said. “I think that’s the key to organizing, isn’t it?”

She explained that Working America encourages people to see themselves as leaders within their own social circles, and, as it did in the case of the man in the hardware store, this recognition makes it easier to take action.

Nussbaum sees FixMyJob.com as a complement to these offline campaigns and as a means for introducing people to the labor movement. “Some people who use these tools will get turned on and they will become activists for life,” she said. “Some will fail, but it will help create a new environment that I think supports what we’re already beginning to see bubble up.”

This article was originally posted on Yes! Magazine on July 8th, 2013.  Reprinted with permission. 

About the Author: Amy B. Dean is a fellow of The Century Foundation and principal of ABD Ventures, an organizational development consulting firm that works to develop new and innovative organizing strategies for social change organizations.  Dean has worked for nearly two decades at the cross section of labor and community based organizations linking policy and research with action and advocacy

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