Outten & Golden: Empowering Employees in the Workplace

Archive for February, 2014

GAP Does Right By Its Workers: Other Corporations Should Take Notice

Monday, February 24th, 2014

seiu-org-logoExecutives at GAP heard President Obama’s State of the Union call for businesses to raise wages loud and clear. The retailer announced today that by next year, all of its workers will be making at least $10 an hour.

While GAP is making the right move and doing right by its 90,000 workers around the country, Congress must follow suit to lift millions out of poverty. There are bills in both the House and the Senate that would raise the federal minimum wage for 16 million workers and lift 900,000 Americans out of poverty. Yet, hardline Republicans in Congress continue using the same tired excuses against giving Americans a raise.

When even Wal-Mart is considering raising wages, when the President increases the minimum wage for federal contracted workers and makes raising wages a cornerstone of his national agenda and when an overwhelming majority of Americans support an increase in the minimum,it is definitely time for Congress to take action.

But government action isn’t the only answer to raising wages. That’s why today’s move by GAP is an example that corporations should follow.

This article was originally printed on SEIU on February 20, 2014.  Reprinted with permission.

Author: Jumoke Balogun

UAW Appeals Volkswagen Vote Over Threats from Republican Officials

Monday, February 24th, 2014
Laura ClawsonThe UAW is appealing its narrow loss in the recent union representation vote at a Tennessee Volkswagen plant, citing Republican politicians’ threats against jobs if workers unionized. The union is asking the National Labor Relations Board to hold a new election. For his part, Sen. Bob Corker remains on the offensive, blasting the union as being “only interested in its own survival and not the interests of the great employees at Chattanooga’s Volkswagen facility nor the company for which they work.” Because threatening to block support for VW’s expansion if workers did unionize shows that Tennessee Republicans were entirely focused on the workers’ interests, don’t you know.It’s very uncertain whether the UAW’s appeal will be successful. Lydia DePillis points tocompeting precedents. On the one hand:

… the Board has seen the reverse situation, in which politicians endorsed a union. In 2011, for example, the Communications Workers of America won an election at Affiliated Computer Services, which New York State had retained to set up its EZPass system for road tolls. The company objected, saying that a U.S. congressman and a New York State senator had influenced the election by making statements in favor of the union — and also by pointing out that they sat on committees that oversaw the company’s business.The Board disagreed, ruling that “public officials, even public officials involved in the regulation of the employer’s industry, like other third parties, are not required to remain neutral and may properly seek to persuade employees.”

On the other hand:

… in 2000, the Board ruled that politicians in the Northern Mariana Islands had sullied an election by targeting non-residents who voted to join a hotel union. The D.C. Circuit reversed its decision for lack of evidence, but didn’t touch the principle that lawmakers had the power to create an untenable environment of fear.

Getting a new vote is a long shot, and winning it is an even longer one, given the dedication to intimidation shown by Republicans and outside groups, as well as the fact that some significant chunk of the plant’s workers would be unlikely ever to vote for a union, given the anti-union environment of the south. The threats from Corker and other Tennessee Republicans were all upside down—they weren’t going to face any personal penalties, and they had the opportunity to make a difference in a close election.

This article was originally printed on the Daily Kos on February 24, 2014.  Reprinted with permission.

About the Author: Laura Clawson is the labor editor at the Daily Kos.

Arizona Legislature Votes to Legalize Discrimination. Urge Governor to Veto

Monday, February 24th, 2014

Image: Mike HallLast week in Arizona, the tea party-dominated legislature passed a bill that will allow businesses to slam their doors shut on anyone they say doing business with would violate their religious beliefs. While the bill was aimed primarily at the LGBTQ community, in effect, it could allow business owners to discriminate against anyone.

Gov. Jan Brewer (R) has until Friday to sign or veto the bill. Call 888-968-2464 and urge Brewer to veto the bill.

When the bill passed, Anna Tovar, the state Senate Democratic minority leader, said:

With the express consent of Republicans in this Legislature, many Arizonans will find themselves members of a separate and unequal class under this law because of their sexual orientation. This bill may also open the door to discriminate based on race, familial status, religion, sex, national origin, age or disability.

Sate Rep. Chad Campbell (D) told CNN Friday:

Let there be no doubt about what this bill does. It’s going to allow people to discriminate against the gay community in Arizona. It goes after unprotected classes of people and we all know that the biggest unprotected class of people in the state is the LBGT community. If we were having this conversation in regard to African Americans or women, there would be outrage across the country right now.

Aside from the outrageousness of virtually legalizing discrimination, if signed into law, the bill is likely to have a serious negative economic impact on the state. Arizona AFL-CIO Secretary-Treasurer Rebekah Friend says it “could prompt an economic backlash against the state, similar to what occurred when the state passed the controversial immigration law, Senate Bill 1070, in 2010.”

It’s estimated those boycotts cost the state tens of millions of dollars in lost tax revenue and hundreds of millions in spending that would have gone to local businesses.

U.S. Sens. John McCain (R) and Jeff Flake (R) of Arizona have urged Brewer to veto the bill, and a large part of the business community has lined up against the bill. In a letter to Brewer urging her to veto the legislation, the Greater Phoenix Economic Council said:

The legislation will likely have profound, negative effects on our business community for years to come….The legislation places businesses currently in Arizona, as well as those looking to locate here, in potentially damaging risk of litigation, and costly, needless legal disputes.

It also warned Brewer that four unidentified companies have vowed to locate elsewhere if the legislation is signed.

Other businesses have spoken out against the measure. In Tucson, Anthony Rocco DiGrazia, owner ofRocco’s Little Chicago Pizzeria, posted a sign (see above) that reads, “We Reserve the Right to Refuse Service to Arizona Legislators.” He told The Huffington Post:

I just want to serve dinner and own and work in a place I’m proud of. Opening the door to government-sanctioned discrimination, regardless of why, is a huge step in the wrong direction.

Shannon Austin Zouzoulas, co-owner of a brewery and winery call Arizona Hops & Vines, called the bill “pro-hate” and posted the picture below of a rainbow liquid swirling in a wine glass on their Facebook pageFriday with the caption:

Arizona Hops and Vines Loves ALL our customers!

Apparently some other Arizona businesses hate certain types of their customers and will be able to discriminate against them if Brewer signs the bill into law.  Call 888-968-2464 and urge her to veto the bill.

This article was originally printed on AFL-CIO on February 24, 2014.  Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

AFL-CIO To Put ‘Laser Focus’ On Raising Wages

Monday, February 24th, 2014

David MobergThe labor movement has a new driving message for its legislative, educational and political work that should resonate with most American workers, especially those who have the least: Your pay is too damn low!

AFL-CIO president Richard Trumka put it less colloquially this week than the New York gubernatorial candidate who once ran on a single message: “Rent is too damn high.” Organized labor will put “a laser focus on raising wages,” Trumka told reporters in Houston at the start of the winter quarterly meeting of the federation’s executive council.

Whatever the words, the case for action is strong. Wages have stagnated for all but the rich for more than a decade and fallen for low-wage workers, according to theEconomic Policy Institute, a leading research institution on labor markets. Adjusting for inflation over the past four years, hourly wages for workers in the bottom 30 percent have fallen an average of 68 cents an hour.

Those trends, mirrored by the top 1 percent capturing 95 percent of all the new income growth following the end of the Great Recession, explain why inequality is growing, according to University of California, Berkeley economist Emmanuel Saez.

However, as Trumka notes, the general public, as well as leaders from “the Pope to the president,” have begun to express outrage over inequality. A minimum-wage boost has been increasingly on the U.S. agenda, with a $10.10 federal minimum proposed by Congressional Democrats and supported by Obama. Although the AFL-CIO is promoting the $10.10 minimum, Trumka says he favors a “living wage” standard set around $17 an hour, indexed to inflation.

“Wages are about what connects us all,” he told reporters, suggesting that labor’s campaign for a raise for all workers could bring old and new allies together in a powerful movement for economic fairness.

It’s no surprise that unions want workers to earn more, and this is not the AFL-CIO’s first call for higher wages across the board. The labor federation adopted much the same focus after John Sweeney and Trumka first won the top posts in the AFL-CIO in 1995. (Sweeney authored a book titled America Needs a Raise: Fighting for Economic Security and Social Justice.) But progress has been slow. Despite some victories on minimum wages, living wages (which typically mean a higher minimum for certain workers, such as public contactors), and other measures, workers need a raise now even more than two decades ago.

The AFL-CIO campaign to raise wages centers on supporting legislation that would raise the federal and state minimum wages (including the minimum for tipped workers, frozen at $2.15 since 1991). But it goes further than that, to backing a broad swath of local, state and national proposals that would help workers prosper, including measures to establish living wages, strengthen enforcement against employer wage theft, guarantee paid sick days and bolster basic federal social safety-net programs, such as Social Security, Medicare and the Affordable Care Act. (Unions in many industries are seeking to preserve their non-profit healthcare plans jointly administered with management, which are threatened to be crippled by the ACA’s denial of subsidies and incentivization of limiting workers’ hours.)

Trumka did not outline any new tactics beyond labor’s standard ones: political education and mobilization to try to make wage and inequality issues central to the election this fall.

But he thinks the conditions are ripe to build public support for a wage boost. “Workers are sick and tired of wages being flat, not growing, and they’re working harder and harder and harder and getting by on less and less,” Trumka said. In this climate, if progressive politicians focus on raising incomes through cash or benefits, they will beat right-wingers, he says. Even the ACA, which has taken the brunt of Republican attacks, has millions of beneficiaries, and those ranks are growing every day. Without a viable alternative, the Right’s attacks on the ACA are likely to backfire, he said.

Championing immigrants

Trumka also passionately embraced a stronger campaign on immigrant worker rights, an issue on which unions and most immigrant rights organizations have already been working closely. The AFL-CIO has become much sharper in its criticisms of the deportation of immigrants, which has soared under Obama. “I think there is a rationale to stop the deportation,” Trumka said. “The system is broken. Three and one-half minutes of due process is a broken system,” he said, citing the average time for a legal deportation hearing with translation time factored out, drawing on a report by a deportation hearing judge to an AFL-CIO committie.

The AFL-CIO also intends to continue its work with “civic engagement” of immigrants, particularly by encouraging the naturalization and voter registration of the approximately 9.7 million legal immigrants eligible to become citizens, and eventually the registration of the 15 million U.S.-born children of immigrants who will become eligible to vote as they turn 18.

On an ideological level, he combined emphasis on fighting deportation and encouraging citizenship represents labor’s growing identification with a broader democratic movement. And on a pragmatic level, fighting deportation removes a tool employers often use to threaten migrant workers and depress wages, while naturalization and voter registration of immigrants, who tend to be progressive, increase the odds of electing liberal politicians.

Although prospects for passing any federal immigration bill appear dim, the AFL-CIO will continue to push for it, if for no other reason than to make the Republicans’ political quagmire over immigration deeper and stickier at election time.

The AFL-CIO executive council, which is made up mainly of presidents of affiliated unions, also is working to implement two other convention resolutions: how to make the AFL-CIO’s state federations and local central union bodies more accountable for following federation strategies and for fostering mutual support among unions, and how to expand and strengthen alliances with other progressive groups.

RoseAnn DeMoro, head of National Nurses United and a member of the executive council, applauds Trumka’s efforts to mobilize labor for a larger challenge to corporate power. “Rich wants to change how we’re doing our work completely,” she said. “He wants everyone working collectively. He wants us in low-wage areas. He wants us mobilized in every street. He’s talking about a completely reformed, far more aggressive labor movement. We’re at a crossroads. We either completely transform or continue in the same direction.”

This article was originally printed on Working In These Times on February 24, 2014.  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.

Tackling Political Speech in the Workplace: What We Can Learn from Chris Kluwe

Monday, February 24th, 2014

nicolasChris Kluwe was back in the headlines this week for his public support of Michael Sam, a top NFL draft prospect, who announced on Sunday that he is gay.  Chris Kluwe, a former punter with the Minnesota Vikings, claimed earlier this year that he was released from the team for his public support of gay marriage.

As high profile athletes, Kluwe and Sam command the attention of the media and the electorate when they speak up on important societal issues. Michael Sam has indicated that he will not engage in activism in support of gay rights and will choose instead to focus on his fledgling NFL career.

While I do not know him nor pretend to know his motives, I can’t help but think: is the fear of losing out on a high draft pick or not being signed by an NFL team driving his decision not to engage in political activity outside the locker room?  Losing a job should not be a concern that employees have when considering whether to engage in political activities outside the workplace.   Which brings us back to Kluwe’s situation and the question of whether the Vikings had the right to terminate him, assuming his allegations are true, for voicing his political views on gay rights?

With politics a part of daily life, it is only natural that the world of work and politics will collide.   Unfortunately, it is not uncommon for employees to be terminated when the political opinions within these worlds also collide.  Recently, Dick Metcalf, a well known gun journalist, was fired from his job writing for Guns & Ammo magazine after he wrote a column calling into question the absolute right to bear arms.

And take the recent case of Maria Conchita Alonso, a Latin-American actress, who was to participate in a Spanish language version production of “The Vagina Monologues.”  After voicing her support for a Republican California gubernatorial candidate, Tim Donnelly, she was met with fierce protest and basically forced to resign from the production.

The difficulty lies in how to draw the boundaries around protected speech so that the political beliefs and activities of both the employee and the employer are respected.  Employers will argue their own right to political expression and that they should be able to regulate disruptive political activity in the workplace.  However, employers should not have the power to make employment decisions solely based on the political activities outside the workplace.  An employee should simply be able to take a personal stand on political issues (rightly or wrongly) without fear of retribution.

Like Chris Kluwe, most workers who engage in political activity do so on their own time and outside of the workplace.  But without any statutory protection, employers are able to misuse their economic power to influence the political activities of their employees no matter where those activities take place.

Now, if Chris Kluwe played for the Raiders, 49ers or Chargers — all based in California — his right to political speech would be protected.  Two statutes (sections 1101 and 1102 of the California Labor Code) make it unlawful for private employers to retaliate against employees because of their political affiliations or political activities.  California seems to be one of the very few states that protects employees from retaliation for engaging in political discourse outside of work or while at work.

So where does our punter, Mr. Kluwe, stand?  As a result of his allegations, the Vikings are now investigating his claims and have interviewed Mr. Kluwe about his allegations.  However, there is no guarantee that the team will corroborate what he alleges.  And because he does not live in California, there is also no guarantee that the Vikings will remedy any wrongdoing.  While I hope that the Vikings will do the right thing, the natural tendency is for large employers and institutions to close ranks and do nothing to change.  We’ll see soon enough whether the Vikings decide to punt the issue or tackle the issue head on.

This article was originally printed on CELA Voice on February 13, 2014.  Reprinted with permission.

About the Author: Nicolas Orihuela is a founding partner of the employment law firm of Hurwitz, Orihuela & Hayes, LLP and has been practicing since 2002. He represents employees in race discrimination, sex harassment, wrongful termination and disability discrimination related cases. He also handles wage and hour cases. Mr. Orihuela is a member of the California Employment Lawyers Association and the Consumer Attorneys Association of Los Angeles, which are organizations dedicated to protecting the rights of employees and consumers. He is a graduate of Loyola Law School and Loyola Marymount University. While at Loyola Law School he served as a Staff Writer and Articles Editor of the Loyola of Angeles Law Review. Prior to founding Hurwitz, Orihuela & Hayes, LLP in 2007, he worked at Lim, Ruger & Kim, LLP where he handled employment matters, including wage and hour class actions, on behalf of employees.

Duff on ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain

Monday, February 17th, 2014

Paul SecundaMichael Duff (Wyoming) has posted on SSRN his forthcoming piece in the Catholic University Law Review entitled: ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain.

Here is the abstract:

Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy.  Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose.  Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker.  This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond to ALT-Labor in a historically typical manner — by seeking labor injunctions and civil damages in courts.

Labor injunctions are available under certain sections of the Labor Management Relations Act (LMRA) when “labor organizations” violate those sections. This article specifically considers whether ALT-Labor groups, though not unions in the traditional sense, are nevertheless “labor organizations” under the LMRA capable of violating the secondary boycott provisions of the statute. If ALT-Labor groups have the requisite status to commit these violations, they may be subject to federal court injunction and civil damages under the LMRA.

The article concludes that ALT-Labor’s labor organization status is uncertain and will turn on a given group’s explicit statement of a “labor organization-like” purpose, and on whether it behaves like a statutory labor organization. Litigation premised on the labor organization status of an ALT-Labor group therefore poses risk for both sides, business and ALT-Labor.

The article accordingly proposes that unions and business strike a deal by agreeing to narrow the labor organization definition. Employers have wanted to narrow the definition for decades in order to establish workplace committees that have consistently been found presumptively unlawful. Unions, on the other hand, have historically resisted a narrowing of the definition because of the 1930s historical specter of the “company union”: “fake” unions set up by employers to confuse workers into thinking they have real representation when they do not. However, the article contends that the companies in which fake unions were once a concern are vanishing artifacts, and that unions should therefore compromise on the labor organization definition to protect a dynamic, emerging new type of workforce from labor law used as a sword.

This is really a must-read for anyone thinking seriously about labor law reform in the United States and a presents a realistic way forward for unions in the current political and legal environment.

Check it out!

This article was originally printed on Workplace Prof Blog on February 13, 2014.  Reprinted with permission.

About the Author: Paul Secunda is a 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.

Altoona Nurses Strike As UPMC Continues to Put Profits Before Patients

Monday, February 17th, 2014

seiu-org-logoSEIU Healthcare Pennsylvania‘s registered nurses at University of Pittsburgh Medical Center (UPMC) Altoona are on a one-day strike today. UPMC rejected proposals for better staffing ratios, which is shown to improve patient outcomes, decrease the length of hospital stays, and increase patient satisfaction scores, among other issues.

“It comes down to patient care and safety,” explains Kim Heverly, who has been an RN at the hospital for 22 years. “If we don’t have good ratios, nursing becomes just a series of tasks, and you may miss subtle changes in a patient’s condition that could be an early indicator of complications. You also lose those one-on-one moments of caring and compassion, which is so important in nursing.”

Today’s strike is a part of a larger campaign effort by Make It Our UPMC, a coalition of UPMC employees, faith and community leaders, elected officials, healthcare providers and activists, parents and teachers, bus-riders and people across the region whose goal is to ensure that UPMC plays by the rules, partners with the community to build great neighborhoods, and makes every job a family sustaining job. UPMC, the $10 billion global health enterprise based in Pittsburgh, acquired Altoona Regional Health System on July 1.

Nurses, joined by community members, hosted a candle light vigil in December, launched a petition calling on the Board at UPMC to address community concerns, and are planning a Valentine’s Day Action where nurses from across the country will send Valentine’s Day cards to management asking them to “have a heart” and put patients before profits.

Share this on Facebook to show you’re standing with these nurses.

Stand up for SEIU Healthcare PA nurses on strike against UMPC

This article was originally printed on SEIU on February 11, 2014.  Reprinted with permission.

Author: SEIU Communications

Tennessee Republicans Celebrate Union Loss at Volkswagen by Talking Subsidies

Monday, February 17th, 2014

Laura ClawsonSen. Bob Corker’s (R-TN) threats against jobs may or may not have changed the outcome of a union election at a Tennessee Volkswagen plant, in which the UAW lost a narrow victory. We’ll probably never know exactly how many workers decided to vote against unionizing after the Republican senator claimed that if they voted no, Volkswagen would quickly expand production at the plant. But Corker is certainly pleased with himself:

Corker, who had originally announced he would refrain from making public comments during the election, changed course last week after he said the union tried to use his silence to chastise other critics. Corker said after the vote that he was happy he joined the fray.“I have no idea what effect we may or may not have had,” Corker said. “But I think I would have forever felt tremendous remorse if … I had not re-engaged and made sure that people understand other arguments that needed to be put forth.”

“Other arguments that needed to be put forth” equaling Corker’s assertions, plus other politicians’ similar threats. In fact:

Corker said the day after the vote that he and other state officials planned to restart discussions with Volkswagen officials this week about state subsidies for expanded production in Chattanooga.

Those are subsidies that were explicitly threatened if workers had voted to unionize. There were, of course, other factors in the loss. As Erik Loomis points out “There were almost certainly several hundred no votes from the beginning” in a workforce with a lot of white southerners. Douglas Williams and pseudonymous organizer Cato Uticensis also argue that the UAW made significant organizing errors.

Whatever the combination of causes leading to the 712 to 626 loss, though, Tennessee Republicans made clear that their opposition to having a significant workplace organized is strong enough to threaten jobs over. Which makes total sense: Republicans want workers weak and scared. Defeating unions and keeping jobs scarce both contribute to that goal.

This article was originally printed on the Daily Kos on February 17, 2014.  Reprinted with permission.

About the Author: Laura Clawson is the labor editor at the Daily Kos.

IBEW Father and Daughter’s Long Journey to Sochi Short Track

Monday, February 17th, 2014

Image: Mike HallSpringfield, Mo., Electrical Workers (IBEWLocal 453 member Craig Scott is in Sochi, Russia, this week watching his daughter Emily compete for Olympic gold in several short track speed skating events.  But it wasn’t an easy journey for father or daughter

Emily, 25, was a world champion inline skater before taking up short track speed skating about five years ago. But with the U.S. Speedskating cutting her funding last year, a part-time job not bringing in enough to pay the bills or give her time to train and a crowdfunding effort falling short, Emily was on the verge of giving up her dream.

But a USA Today profile of her struggles sparked nearly $50,000 in donations and allowed her to quit her job and focus on training and making the Olympic team.

Now with Emily whose events run through this week, and with Scott in Sochi to cheer her on, he says:

It’s taken a little while to sink in. It’s 20 years of hard work, and finally everything has sort of come together.

Read more coverage from the News-Leader here and here, and check the paper’s website for updates.

See Six Fun Facts About Short Track Skater Emily Scott from NBCOlympics.com and more from U.S. Speedskating.

This article was originally printed on AFL-CIO on February 17, 2014.  Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

Court Okays Labor Department Rule: Guestworkers Must Earn Prevailing Wages

Monday, February 17th, 2014

Michelle ChenEach year, tens of thousands of immigrant “guestworkers” come to the United States on special employer-sponsored visas to work temporary jobs in landscaping, hotel housekeeping and other low-wage sectors. But for decades, these workers have beendemonized and scapegoated, accused of hurting “native” U.S. workers by driving down wages. At the same time, the immigrants themselves have spoken out about their poor wages and working conditions, and have even gone on strike and organized independent labor movements to demand the same rights and wages as that of their American counterparts. It seems the only people who like this system, in fact, are the bosses who rely on a surplus army of imported temporary labor, denied the labor protections and legal rights of citizens.

In 2011, the Department of Labor (DOL) issued major reforms to a flagship guestworker program known as H-2B, which funnels tens of thousands of migrants annually into low-wage jobs in workplaces from Florida hotel chains to crabmeat canneries. Business groups, predictably, sued to block the regulations—but last week, an appeals court finally put their arguments to rest.

The reforms, which the DOL based upon an assessment of wage rates and labor market conditions for U.S. workers, mandate pay high enough to maintain prevailing wages in sectors that recruit guestworkers, and thus sustain current working conditions. The wage rules are part of a package of guestworker program reforms proposed by the DOL, that has long been stalled by Congress and court challenges but, with this court victory, can finally be implemented.

In Louisiana Forestry Association v. Secretary, U.S. Department of Labor, business associations representing the forestry, seafood processing and hotel industries, among others, argued that the Labor Department lacked the legal authority to imposethe reforms and was impinging upon employers’ control over wages.

However, Meredith Stewart, an attorney with the Southern Poverty Law Center (SPLC), which represented the workers’ groups that joined the Labor Department in fighting the suit in court, points out that employers supported the previous, laxer regulations that made it easy to pay substandard wages. “It really wasn’t until the Department of Labor issued a wage rule that would lead to substantial increases for workers that employers decided to challenge their authority to issue any regulations for the program,” she tells Working In These Times. The new rules, she says, simply mandate that “to the extent that employers are going to employ foreign workers, those foreign workers and U.S. workers need to be treated equally and fairly.”

In court, the Labor Department and workers’ advocates cited the agency’s legal mandate, which explicitly directs regulators to protect workers from wage suppression and displacement by unscrupulous bosses. On February 4, the Third Circuit Appeals Court unanimously agreed that the Labor Department had the authority to make the reforms, rejecting the employers’ arguments.

While the pending regulations would hardly be a comprehensive overhaul, they strengthen the meager existing H-2Bprotections by barring employers from paying H-2B workers so little as to undercut existing wage levels for non-visa workers who do “substantially the same work.” Essentially, the prevailing wage standard, set according to the Labor Department’s economic assessments, aims to preserve working conditions in a given sector by preventing employers from manipulating immigrants to cheapen labor costs. It also would block employers from unfairly cutting hours and from deducting transportation or equipment costs from workers’ pay. Employers would be required to disclose more information up front in the recruitment and hiring process, about job requirements and workers’ legal rights. The regulations also help shield workers from discrimination if they complain about mistreatment—a critical protection because they depend on their employer’s sponsorship for their U.S. visa authorization and are thus easily coerced into silence.

Most controversy over guestworkers stems from the popular misconception that immigrants are to blame for supposedly “stealing” jobs. In fact, migrants often work jobs that complement, rather than displace, the employment of U.S. workers. But even in the labor markets where the importation of guestworkers has resulted in declining labor conditions, the process isdriven primarily by the labor abuses and rampant exploitation of employers—thus all workers, native and immigrant, documented and undocumented, have an interest in equalizing labor rights across the board, to resist attempts by corporations to divide and exploit the workforce with impunity. To that end, the grassroots labor organizing among guestworkers highlights a shared labor struggle in a system that robs U.S. and immigrant workers alike of dignity. Several labor scandals, such as the recent case of seafood processing workers in the massive supply chain of Wal-Mart, have shed light on the common practice of underpaying H-2B immigrants. In a 2012 report by the National Guestworker Alliance (NGA) on abuses in guestworker programs, NGA co-founder Daniel Castellanos-Contreras recalled his experience of exploitation as an H-2B worker in the aftermath of Hurricane Katrina, lured to the U.S. from his native Peru on the promise of a decent hotel-industry job.

Instead of hiring [local] workers from the displaced and jobless African American community, he sent recruiters to hire us. At around $6.00 an hour, we were cheaper. As temporary workers, we were more exploitable. We were hostage to the debt in our home countries; we were terrified of deportation…

The report details various forms of mistreatment that guestworkers like Castellanos-Contreras have suffered, such as wage theft and labor trafficking. In an email to Working In These Times, Castellanos-Contreras says of the Third Circuit Court ruling, “The court has caught up with what thousands of guestworkers have been saying since Hurricane Katrina: to stop exploitation in guestworker programs, we need higher prevailing wages, and we need protections from employer retaliation to make sure that the rules of the program are enforced.”

The H-2B reforms still face legal roadblocks, however. Another, related set of H-2B rule changes has been held up by a preliminary injunction issued by a Florida court in a separate suit, brought by Bayou Lawn & Landscape Services, which might potentially lead to a conflicting ruling by the 11th Circuit Court of Appeals—one more hurdle that has so far impeded full implementation. Outside the courts, conservative lawmakers stalled the implementation of the wage rules in 2012 by voting to block the required funding for the Labor Department to carry out the regulations. (The block was lifted in the 2014 budget legislation, which should clear the way for the new standards, according to the SPLC.) Meanwhile, tepid attempts in Congress to pass more comprehensive overhauls of both guestworker programs and the entire immigration system have foundered amid political gridlock.

Stewart says that, despite the incremental legal victories, “There’s still a long way to go to making these programs even remotely functional, from a worker advocates’ standpoint.”

On top of their demand for stronger wage standards, the fight will continue for more safeguards against abuses like fraud in the labor recruitment process, as well as protections for their right to organize. And progressive advocates for immigrant laborers ultimately want to move away from the precarious temporary labor of the current visa system–and toward an equitable immigration policy that provides genuinely equal employment opportunities and the ability to gain full citizenship. For now, though, the court’s affirmation of their basic right to fair pay marks a modest milestone in the migrants’ long journey.

This article was originally printed on Working In These Times on February 13, 2014.  Reprinted with permission.

About the Author: 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. Her work has appeared on Alternet, Colorlines.com, Ms., and The Nation, Newsday, and her old zine, cain.

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