Outten & Golden: Empowering Employees in the Workplace

Archive for September, 2013

Bold Policies Will Solve Retirement Inequality

Friday, September 27th, 2013

seiu-org-logoRondell Johnson is a 23-year-old baggage handler at the Philadelphia International Airport. He aspires to one day attend business school and prepare for a career as a real estate entrepreneur. But he, like many other low-wage workers who work full time for minimum wages, brings in “just over $15,000 a year before taxes.”

The poverty line for one person who lives alone is $11,490.

The latest Census Bureau data on poverty is a sobering reminder of America’s need to address income inequality. It’s also a wake-up call for lawmakers to create bold policies to strengthen our nation’s retirement system.

Under our current policies, retirement has become one of the greatest examples of income inequality in America. The availability of retirement savings is often tied to income for today’s workers who have fewer savings options than previous generations.

For low-wage workers such as Johnson, obtaining a secure job with decent wages feels difficult, and achieving a secure retirement is virtually impossible.

“I don’t want to retire where I started,” he says. “I started broke. I started in poverty. I’m going to retire into poverty, too? Then what has my life been about at that point?”

A recent report from the Economic Policy Institute shows Rondell’s story is more common today than it was 20 years ago. Our shift from traditional pensions to more individualized savings plans such as the 401(k) has helped spur retirement income inequality in America.

The majority of our most affluent workers have savings sitting in a 401(k) or similar retirement savings account which averaged $308,674 in 2010.

In contrast, only 52 percent of middle-class Americans have savings in retirement accounts where the average balance was only $34,981.

Retirement savings options and balances are severely low for America’s poorest workers who are less likely to have access to a retirement plan at work or cannot afford to contribute enough out of their own stagnant wages. Only 11 percent of workers, representing the lowest quartile, have any 401(k) savings. Their average savings balance is just $7,543.

The rise of the 401(k) has also helped lead to a greater reliance on Social Security. Although Social Security benefits were never intended to be a stand-alone retirement plan, it is the primary source of income for 65.3 percent of retirees.

Perhaps one of the boldest, income gap closing policies lawmakers can implement is strengthening Social Security by making everyone pay their fair share.

If wealthy bankers, CEOs, athletes and celebrities contributed the same percentage of their income to fund Social Security as the 99%, we would also be able to significantly improve benefits for current low-income retirees receiving $1,200 or less a month, deliver retirement security to more workers, and help close the wealth gap.

This article was originally printed on SEIU on September 27, 2013.  Reprinted with permission.

Author: KEIANA GREENE-PAGE.

 

SEC Issues Rule on CEO-to-Worker Pay Ratio Disclosures

Thursday, September 26th, 2013

secunda-paulLast week, the Securities and Exchange Commission (SEC) released a rule requiring companies to disclose the CEO-to-worker pay ratio.  Despite objections by many corporations, the rule covers all employees including seasonal, international, and part-time workers.  The SEC provides companies the option of using the entire workforce or a representative sample in the calculation.

There will now be a 60-day comment period.  The SEC voted for the rule 3-2, with the two Republican Commissioners who voted against the proposal calling it a special interest provision and proclaiming “shame on the SEC.”

Proponents of the rule argue that it will give shareholders and other stakeholders a clear line of sight into human capital management and worker pay.  For instance, CalPERS, the California State Pension Plan, has issued a release, welcoming the rule as a valuable tool which will “help shareholders to keep management accountable” and “shed light on an element of pay which is currently shrouded from view.”  John Liu, the NYC Comptroller, stated that the rule would allow “shareowners to make informed decisions about compensation and may rein in excessive corporate practices.”

Numerous news outlets have covered this story, including the Wall Street JournalBloomberg, and the New York Times.  Things are only going to get more interesting from here on out.

From my point of view, and quoting Justice Brandeis, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

This article was originally printed on Workplace Prog Blog on September 23, 2013.  Reprinted with permission.

About the Author: Paul Secunda is an associate professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

2015 Will Usher In Increased FLSA Liability for Home Health Care Agencies

Wednesday, September 25th, 2013

Patrick J. FazziniOn Tuesday, September 17, 2013, the U.S. Department of Labor (DOL) issued a final rule extending the Fair Labor Standard Act’s (FLSA) minimum wage and overtime protections to an estimated two million home health care workers. Scheduled to take effect on January 1, 2015, this amendment narrows the FLSA’s “companionship” exemption.

In 1974, Congress extended the FLSA’s wage protection provisions to virtually all domestic service workers; however, it provided a limited exception for workers who provided for the care, fellowship, and protection of persons who, because of advanced age or physical or mental infirmity, could not care for themselves. These “companionship” services, which are widely and popularly used for the in-home care of loved ones, most often include assistance with household work such as meal preparation, bed making, clothes washing and other similar personal services.

U.S. Secretary of Labor Thomas E. Perez recently summarized these types of services, stating, “Many American families rely on the vital services provided by direct care workers. Because of their hard work, countless Americans are able to live independently, go to work and participate more fully in their communities.”

The DOL points out that the home health care industry has grown significantly over the last 35 years and that the in-home care services provided to individuals today are markedly different from when the companionship services regulations were first promulgated. As a result, and in an effort to extend the FLSA’s protection to this ever-growing in-home workforce, the final rule removes the ability of third-party employers to avail themselves of the companionship exemption. However, it does permit the individual, family or household employer directly employing the worker to continue to take advantage of the exemption—so long as the employee still primarily provides the fellowship and protection contemplated by the exemption. Further, and among other amendments, the final rule explains that direct care workers who perform medically-related services for which training typically is a prerequisite, are not companionship workers and therefore are entitled to the minimum wage and overtime pay.

As a result of the final rule, many third-party employers—specifically home health care agencies—should be on the lookout for potential FLSA liability stemming from improper exemption classification and compensation issues. Why the delayed start date? The DOL indicates that the January 1, 2015 start date is intended to give employers “time to adjust” and as such, employers should begin conducting internal FLSA audits to ensure their continued legal compliance when the transition takes effect.

This article was originally printed on Ogletree Deakins’ Wage and Hour Blog on September 20, 2013.  Reprinted with permission.

About the Author: Patrick Fazzini is an associate in the Pittsburgh office of Ogletree Deakins.

A “Like” is a Like, Court Says, and is Protected Free Speech

Wednesday, September 25th, 2013

portrait-schwartzIn a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1? on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

This article was originally printed on Connecticut Employment Law Blog on September 19, 2013.  Reprinted with permission.

About the Author: Daniel Schwartz is an experienced employment law attorney, a Bar leader, an award-winning author, and a noted speaker. He is a partner at Shipman & Goodwin LLP.

Treasury Rejects Labor’s Top Obamacare Demand

Monday, September 23rd, 2013

David MobergOn Friday afternoon, following a major labor convention at which many union leaders forcefully advocated revisions in the Obama administration’s interpretations of the Affordable Care Act (ACA), the Treasury Department released a letter that effectively dismissed at least one of labor’s key demands.

A major concern at the quadrennial AFL-CIO conference in Los Angeles this week was the ACA implementation looming in October, particularly the exclusion of multi-employer health plans—which are jointly administered by unions and employers in many industries—from the state health exchanges. UNITE HERE, the United Food and Commercial Workers and the Teamsterswere particularly concerned because many of their members use the multi-employer plans.

As the administration had promised, President Obama met on Friday with a labor delegationheaded by AFL-CIO president Richard Trumka to discuss labor’s request for administrative changes to address their problems with ACA. Obama told the delegation that their multi-employer union plans would not  be eligible for participation in the exchanges, according toForbes. Then shortly afterwards, the Treasury letter, addressed to Sen. Orrin Hatch (R-Utah), came to public attention. Hatch had previously written to the Treasury asking if they agreed with him that multi-employer plans should be kept out of the exchange.

Originally made possible by the predominantly anti-labor Taft-Hartley law in 1947, the multi-employer, non-profit plans allowed workers in fields such as construction—who may work in short stints and for multiple employers—to have a steady source of insurance. Union analysts think the lack of subsidies will put Taft-Hartley plans at a disadvantage, incentivizing employers to abandon the plans and buy insurance directly from exchanges. This would leave workers in the lurch when they are between jobs.

The Taft-Hartley plans would also be put at other disadvantages in the new insurance market. Even though the non-profit multi-employer plans have never discriminated on the basis of pre-existing conditions, they will still have to help pay for for-profit insurance companies to newly cover people previously excluded on this basis. Unions argue that this arrangement unjustly increases the costs of their Taft-Hartley plans. Some union plan officials also want more time to adjust to the cost of eliminating caps on how much any insured individual can receive in insurance payments over a year or a lifetime. There are other concerns, ranging from insurance requirements for federal contractors to definitions of part-time workers, for whom employers do not have to provide insurance.

Most union leaders have not commented on the letter. Staff-level talks between unions and the administration are scheduled for this week, and many leaders apparently still hope to salvage some ACA reforms, even if they don’t win everything.

Union passions on the subject run hot, and some leaders, such as LIUNA president Terry O’Sullivan, wanted the AFL-CIO to pass a resolution at the conference calling for the repeal of the ACA if the administration did not agree to reforms. Instead, the resolution endorsed single-payer insurance as labor’s ultimate goal, but called for improvements in the ACA (and in Medicare as well). Meanwhile, most unions appear ready to continue negotiating with the Obama administration and see what they—like big business, which won huge exemptions recently (notably a year delay in implementing the key mandate to provide insurance)—can finally win from their frustrating talks.

This article was originally printed on Working In These Times on September 18, 2013.  Reprinted with permission.

About the Author: David Moberg is a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy.

Unless Something Changes, it Will Take Women 45 Years to Earn as Much as Men

Friday, September 20th, 2013

Jackie TortoraWomen will not receive the same median annual pay as men until 2058, if current earnings patterns continue without change, announced the Institute for Women’s Policy Research (IWPR) this week.

“Progress in closing the gender wage gap has stalled during the most recent decade. The wage gap is still at the same level as it was in 2002,” said Heidi Hartmann, president of IWPR. “If the five-decade trend is projected forward, it will take almost another five decades—until 2058—for women to reach pay equity. The majority of today’s working women will be well past the ends of their working lives.”

IWPR released a new fact sheet that tracks the pay gap from 1960 to today and analyzes changes during the past year by gender, race and ethnicity.

“While there is no silver bullet for closing the gender wage gap,” said Ariane Hegewisch, a study director at IWPR and author of the fact sheet, “strengthened enforcement of our EEO laws, a higher minimum wage and work–family benefits would go a significant way toward ensuring that working women are able to support their families.”

This article was originally printed on AFL-CIO on September 20, 2013.  Reprinted with permission.

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

 

Working Women Need a Fair Shot

Thursday, September 19th, 2013

seiu-org-logoWhen I think of working women, I think of SEIU 32BJ District 615 member Yocelin Ratchell.

Yocelin works part-time as a baggage agent with Logan Airport in Boston. Her dream? To have benefits that include sick paid leave so that when her children are sick, she can take care of them and not have to worry about losing a day’s pay or even losing her job.

Yocelin is a strong, inspiring woman. Yet her struggle to support her family and get ahead is not unique. Across the country, millions of working people are trying to keep their heads above water and women are overrepresented in low-wage jobs.

Yesterday, I had the opportunity to share Yocelin’s story during an event to announce the launch of a major new initiative, “A Fair Shot: A Plan for Women and Families to Get Ahead.”SEIU is joining with the Center for American Progress, American Women and Planned Parenthood Action Fund to call for bold policies that will improve women’s economic, health and leadership outcomes.

I was proud to be part of the event as an ambassador for the millions of hardworking women who just want to be able to work, earn a living wage and take care of their families. But, unfortunately, for too many women, that’s easier said than done. Just look at the statistics:

  • Women represent nearly two-thirds of minimum wage workers; a woman working full time, year round at the federal minimum wage will still need to come up with an extra $4,000 a year to make it to the poverty line.
  • Eight of the 12 fastest growing occupations over the next 10years are low-wage. Seven of these jobs, including home care provider and child care providers are in industries in which women are disproportionately represented.
  • Women make up nearly two-thirds of workers in tipped occupations and the federal minimum cash wage for tipped workers is $2.13 per hour.

Working women are the sole or co-breadwinner in two out of three families in America.

The question we should be asking is what can we do to ensure that women get a fair shot so that they are not only getting by, but also getting ahead? How do we ensure that Yocelin and millions of other working women like her don’t have to choose between caring for her children and losing her job?

We can start by advocating and implementing policy initiatives like paid sick leave and raising the minimum wage. The good news is that we are already moving forward.

In my home state of Massachusetts for example, we have taken steps put minimum wage increase and paid sick leave up for a vote via a ballot initiative. These initiatives benefit all workers and are also especially important to the economic viability of women. If the federal minimum wage is increased, 5.5 million working mothers with children under 18 will have more money to support their families.

We also have some victories under our belt.

This week, after decades of lobbying, marches, and protests, the Obama Administration announced that minimum wage and overtime protections will be extended to two million homecare workers, 90 percent of whom are women. Before the announcement, homecare workers in the majority of states did not receive the same basic protections provided to most U.S. workers.

Policy initiatives like the one announced by the President aren’t only the right thing to do, but also makes economic sense because our country can no longer afford to leave American women behind. And it is proof that when policymakers, business leaders and working people come together, we can make a difference in the lives of working people.

A fair shot for women is a fair shot for all working people, communities and families.

Read more about the initiative launch in The Washington Post, ThinkProgress and The Huffington Post. SEIU’s statement can be found here.

This article was originally printed on SEIU on September 19, 2013.  Reprinted with permission.

About the Author: Rocio Saenz is the District Leader of SEIU 32BJ New England District 615.

Dylan’s Candy Bar Not So Sweet to Us, Workers Say

Wednesday, September 18th, 2013

davidyamadaWorkers at Dylan’s Candy Bar in Manhattan, the flagship location of a small chain of boutique candy stores opened by Dylan Lauren (daughter of fashion designer Ralph Lauren), are going public with their efforts to challenge low pay and erratic, part-time work schedules. Their claim: A store that serves as a “required stop” for celebrities and entertainers such as “Mary-Kate and Ashley Olsen, Katie Holmes, Janet Jackson, and Madonna,” with annual revenues around $25 million, isn’t all that interested in meeting with its workers to discuss their concerns.

After rebuff, a public petition

The workers have posted a public petition to build awareness and support:

Most of us started at less than $10/hour, with some of us even making as low as $8.50. We’re supposed to get annual reviews for raises, but they often forget to give us those.

On top of the low wages, our schedules and hours change week to week. Nearly the entire sales staff is part time, yet they expect us to have open availability, making it nearly impossible for us to juggle other obligations such as second jobs, school, and family. They refuse to give us any guarantee of the amount of hours we will work each week, and yet they get angry with us when we look for a second job.

. . . Unfortunately, when we got together to deliver our own petition to management, they shrugged it off. Ignoring our concerns, they simply told us that any issues regarding compensation could only be addressed in one-on-one meetings with managers and not together as a group.

The company’s willingness to meet only in one-to-one meetings is telling: It speaks of a divide-and-conquer (or perhaps divide-and-intimidate) approach, one that also makes it harder for workers to claim the protections of federal labor laws. These laws extend to employees engaged in “concerted activities for mutual aid and protection” but do not apply to employees acting solely as individuals.

The workers have reached out to the Retail, Wholesale and Department Store Union (RWDSU). This is the latest evidence of an emerging movement coming from members of America’s low-paid retail workforce, and it couldn’t come at a more important time.

Maybe Dylan’s unpaid HR intern can lend insights

It appears that Dylan’s employee relations philosophies apply to its interns as well. Earlier this year, Dylan’s posted a long announcement seeking an unpaid intern for its human resources department:

We are looking for a Human Resources Intern to join our team. The right candidate will be exposed to a dynamic and exciting opportunity for learning and growing in all disciplines in the Human Resources body of knowledge.

. . . Compensation: This is an unpaid internship, MetroCard will be provided

Among the minimum requirements was this ironic nugget: “Knowledge of the US labor regulatory environment and reporting requirements related to Human Resources.” Of course, an intern with such knowledge might rightly comprehend that the unpaid internship, with its long list of anticipated duties, probably violates minimum wage laws, as this U.S. Department of Labor fact sheet suggests. (A New York federal district court’s June decision on a lawsuit against Fox Searchlight Pictures provides further illumination on that point.)

Hmm, even with the huge, generous perk of a MetroCard, if I was the intern, I’d be giving serious consideration to joining the rest of the workers in circulating the petition.

This article was originally printed on Minding the Workplace on September 16, 2013.  Reprinted with permission.

About the Author: David Yamada is a tenured Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston.  He is an internationally recognized authority on the legal aspects of workplace bullying, and he is author of model anti-bullying legislation — dubbed the Healthy Workplace Bill — that has become the template for law reform efforts across the country.  In addition to teaching at Suffolk, he holds numerous leadership positions in non-profit and policy advocacy organizations.

Ban Ki-Moon Accused of Union-Busting at UN

Tuesday, September 17th, 2013

Michelle ChenUnited Nations workers spend their time on the front lines of the global struggle for human rights, but now they are battling for rights in their own workplace. The UN has come under fire for union-busting, and the labor standoff could undermine its ability to uphold the rights of others around the globe.

All summer, the United Nations’ staff unions have been clashing with management over a new policy aimed at curtailing the staff’s collective bargaining rights. The Staff Coordinating Council, the union leading the opposition campaign, contends that the loss of this negotiating power, enacted by Secretary-General Ban Ki-moon, would deal an unprecedented blow to the union’s power to negotiate contracts and working conditions.

The dismantling of union power, in turn, may signal a gradual shift away from democracy and toward neoliberalism throughout the institution often hailed as the world’s watchdog.

The conflict began last spring, after the General Assembly issued a general order for the secretary general to revise rules for the Staff-Management Coordinating Committee, the current forum for collective bargaining talks. Ban then issued reforms that reduce the committee’s role in the negotiations to, essentially, an advisor—which the Council says is tantamount to “removing the right of staff unions to negotiate.”

According to the unions, when they declared the reforms unacceptable, management broke off talks. In July, the UN went ahead and enacted the rules. According to the Staff Coordinating Council , Ban had made far more drastic policy revisions than what the General Assembly had mandated. They say the order simply serves as a pretext for Ban to undermine the union’s influence, and that he has operated outside of the UN legal framework, which would require him to “seek mediation before consolidating this mandate.”

Now, UN employees—from office staff to peacekeepers to humanitarian aid workers—are waiting anxiously to see how the reforms will affect their power to determine the conditions of their work in a massive global governing structure.

Prior to the new policy, UN staff’s contract negotiations were similar to that of civil service unions in many member states, though the negotiations were not completely binding since the General Assembly could technically override the labor agreements. The loss of these collective bargaining rights has provoked international outcry from labor advocates, including the International Trades Union Congress.

Collective bargaining: A human right?

Union advocates say cutting collective bargaining will impact workers’ ability to respond effectively to crises, especially in war and disaster zones, where the UN is often the most dependable source of relief:

In order to continue this work, staff must feel valued and treated with the same dignity the UN encourages other organisations to treat their staff. Without a fully motivated and engaged staff, the results on the ground will change dramatically. The workforce of the UN is dedicated to its mission…. Everyone has the same goal.

Many labor issues are effectively on hold due to the breakdown of the talks. The staff union had wanted to address concerns over the UN’s the growing reliance on private security contractors in its military missions. Unions were also demanding “better protection for whistleblowers” and stronger oversight mechanisms, and “a workable screening system” to prevent agencies from employing people convicted of war crimes and other human rights violations.

Critics have stressed the irony that the UN’s own humanitarian campaigns often cite labor rights and collective bargaining as part of its founding human rights principles. (By contrast, the staff of the International Labour Organization, the global labor-rights monitoring body, is unionized with collective bargaining.)

The anti-union shift at the UN seems to run counter to its outspoken stance on labor rights in the private sector, such as its recent criticism of Bangladesh’s weak worker protections following the Rana Plaza factory disaster. The UN Global Compact, an initiative that advises businesses on human rights issues, proclaims that “Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining.”

The Staff Coordinating Council cites longstanding decrees on the right to union representation that enshrine collective bargaining as a universal right for all workers. Speaking by phone from Geneva, Staff Management Committee Vice President Ian Richards tells Working In These Times, “We think it’s clear that whether you’re bound by national laws or not, you should have the right to collective bargaining.”

Neoliberal humanitarianism?

This is, of course, not the first time the UN has come under fire for political hypocrisy—in recent years, agencies, both staff and leadership, have been scandalized by various cases of human rights violations, including misconduct by peacekeeping forces.

But the new labor policy is more than just the UN’s failure to walk the talk on labor rights. The reforms seem to reflect a global neoliberal trend among some member states. The undermining of collective bargaining at the UN follows labor crises in public sector unions in Europe and echoes Wisconsin’s pivotal anti-union law.

Unions argue that it reflects a general pattern of eroding job quality and security at critical agencies, and ultimately, will damage the staff’s effectiveness. In Richards’s view, UN workers’ rights have been quietly deteriorating amid a trend toward privatization: While agency budgets are threatened by deep cuts, the UN’s military missions increasingly rely on controversial private contractors like UK-based security firm G4S. Many staff have chafed at the administration’s restrictive “mobility policy,” which governs staff members’ freedom to change positions within the organization.

The situation is especially precarious for local field office workers. In conflict or disaster-stricken areas, Richards says: “For those who are locally employed… those [UN jobs] are about the only reliable kind of jobs you can get, especially if you have some kind of education.” But they are vulnerable to violence and the volatility of geopolitics. In Iraq, for example, if the UN withdraws foreign personnel and local workers are left behind, Richards warns, “Who looks after them? Are they going to be retaliated against?… There’s no current way of negotiating with [the management] on that.”

Ironically, the labor dispute has emerged just as the UN revisits a historical moment of crisis facing its workers: Last month the UN marked the tenth anniversary of the bombing in Baghdad that killed 22 staff members. Ban’s commemoration speech, quoted in the New York Times, specifically referenced the need to address security threats to field staff : “We have learned from our losses… We are changing the way we operate around the world.”

But the UN staff’s advocates see the loss of collective bargaining rights as a change in exactly the opposite direction—a measure that will make staff physically, as well as economically, less secure, in working conditions that are by definition fraught with instability.

Given its symbolism on the global stage, Richards says, “The UN is supposed to set an example to the world. Right now on labor rights, it isn’t.”

This article was originally printed in Working In These Times on September 16, 2013.  Reprinted with permission.

About the Authory: Michelle Chen is a contributing editor at In These Times, a contributor to Working In These Times, and an editor at CultureStrike. She is also a co-producer of Asia Pacific Forum on Pacifica’s WBAI.

9th Circuit: Garcetti Does Not Apply to Public University Employee's Teaching and Academic Writing

Tuesday, September 17th, 2013

secunda-paulFor those of you like me that follow the development of First Amendment law in the public employee space, times have recently been depressing for employee advocates in this post-Garcetti world that we now inhabit in the United States.

Now comes a pro-employee decision (yes from the 9th Circuit) concerning the application of Garcetti to a public university professor’s teaching and writing at school.  Readers may recall that the Garcetti decision itself punted on the issue of whether the new standard – no First Amendment speech protection for public employees speaking pursuant to their official duties – also applied to the university academic setting where substantial issues of academic freedom also exist (this is less of an issue in the K-12 environment where public school teachers have less discretion in conveying the curriculum and do not generally do scholarship).

In Demers v. Austin (9th Cir. Sept. 4, 2013), the Ninth Circuit considered a case in which “a tenured associate university professor (at Washington State University]. . . alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled ‘The Ivory Tower of Babel.’” The case focuses primarily on the pamphlet, as not enough evidence was put in the record concering the book.

Judge Fletcher, writing for the unanimous panel, came to four important conclusions:

1.  Garcetti does not apply to teaching and writing on academic matters by teachers employed by      the state.  In other words, Garcetti is basically silent on this issue as mentioned above, and the 9th Circuit found that matters of academic freedom play a more prominent role in this context that requires a different legal test. (“We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court [on academic freedom elucidated in Keyishian and other cases].

2.  Instead, teaching and writing by university professors comes direclty under the Pickering balancing test, whereby the rights of the public employee to speak on matters of public concern are balanced against the employer’s right to run an efficient government service. (“We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.”).

3.  So although the university professor here prepared and circulated the pamphlet pursuant to his official duties as a university professor (and thus, would normally have no First Amendment protection under Garcetti), the 9th Circuit concludes that speech was on a matter of public concern (thus satisfying the Connick test) and that there was a chance that the Pickering balancing of interests could come out in favor of the employee.  The court therefore remands on this and a few other related issues.

4.  In any event, the individual defendants in the case would not be held liable because of the unsettled nature of this area of the law.  In short, they enjoy qualified immunity.

This is not the first case finding that there is an exception to Garcetti for teaching and academic writing.  TheFourth Circuit came to a similar conclusion in the Adams public university professor case of 2011. Nevertheless, it will be interesting to see if this represents a growing consensus among the lower federal courts on this issue and whether this case will be subject to review en banc or by the Supreme Court.  My thought is that although en banc review is certainly possible, there is not yet enough division and consideration of this issue by other circuit courts to warrant Supreme Court review.

This article was originally printed on Workplace Prof Blog on September 9, 2o13.  Reprinted with permission.

About the Author: Paul Secunda is an associate professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

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