Outten & Golden: Empowering Employees in the Workplace

Archive for August, 2015

China Protects its Workers; America Doesn’t Bother

Wednesday, August 19th, 2015

Leo GerardConfronted with a dire situation, a world power last week took strong action to secure its domestic jobs and manufacturing.

That was China. Not the United States.

China diminished the value of its currency.  This gave its exporting industries a boost while simultaneously blocking imports. The move protected the Asian giant’s manufacturers and its workers’ jobs.

Currency manipulation violates free market principles, but for China, doing it makes sense. The nation’s economy is cooling. Its stock market just crashed, and its economic powerhouse – exports – declined a substantial 8.3 percent in July ­– down to $195 billion from $213 billionthe previous July. This potent action by a major economic competitor raises the question of when the United States government is going to stop pretending currency manipulation doesn’t exist. When will the United States take the necessary action to protect its industry, including manufacturing essential to national defense, as well as the good, family-supporting jobs of millions of manufacturing workers?

While China lowered the value of its currency on three consecutive days last week, for a total of 4.4 percent, the largest decline in two decades, a respected Washington think tank, theEconomic Policy Institute, released a report detailing exactly how the United States lost 5 million manufacturing jobs since 2000.

The report, “Manufacturing Job Loss: Trade, Not Productivity is the Culprit,” clearly links massive trade deficits to closed American factories and killed American jobs. U.S. manufacturers lost ground to foreign competitors whose nations facilitated violation of international trade rules. China is a particular culprit. My union, the United Steelworkers, has won trade case after trade case over the past decade, securing sanctions called duties that are charged on imported goods to counteract the economic effect of violations.

In the most recent case the USW won, the U.S. International Trade Commission (ITC) finalized duties in July on illegally subsidized Chinese tires dumped into the U.S. market. The recent history of such sanctions on tires illustrates how relentless the Chinese government is in protecting its workers.

Shortly after President Obama took office, the USW filed a complaint about illegally-subsidized, Chinese-made tires dumped into the U.S. market. The Obama administration imposed duties on Chinese tire imports from September 2009 to September 2012.

Immediately after the tariffs ended, Chinese companies flooded the U.S. market with improperly subsidized tires again, threatening U.S. tire plants and jobs. So the USW filed the second complaint.

Though the USW workers won the second case as well, the process is too costly and too time consuming. Sometimes factories and thousands of jobs are permanently lost before a case is decided in workers’ favor. This has happened to U.S. tire, paper, auto parts and steel workers.

In addition, the process is flawed because it forbids consideration of currency manipulation – the device China used last week to support its export industries.

By reducing the value of its currency, China, in effect, gave its export industries discount coupons, enabling them to sell goods more cheaply overseas without doing anything differently or better. Simultaneously, China marked up the price of all imports into the country. American and European exporters did nothing bad or wrong, but now their products will cost more in China.

Chinese officials have contended that the devaluation, which came on the heels of the bad news about its July exports, wasn’t deliberate. They say it reflected bad market conditions and note that groups like the International Monetary Fund have been pushing China to make its currency more market based.

Right. Sure. And it was nothing more than a coincidence that it occurred just as China wanted to increase exports. And it was simply serendipity that in just three days, “market conditions” wiped out four years of tiny, painfully incremental increases in the currency’s value.

If the value of the currency truly is market based and not controlled by the government, then as Chinese exports rise, the value should increase. That would eliminate the artificial discount China just awarded its exported goods. Based on past history, that is not likely to happen. So what China really is saying is that its currency is market based when the value is declining but not when it rises.

China did what it felt was right for its people, its industry and its economy. The country hit a rough spot this year. Though its economy is expected to grow by 7 percent, that would be theslowest rate in six years. Its housing prices fell 9.8 percent in June. Car sales dropped 7 percent in July, the largest decline since the Great Recession. Over the past several months, the Chinese government has intervened repeatedly to try to stop a massive stock market crash that began in June.

In the meantime, the nation’s factories that make products like tires, auto parts, steel and paper continue to operate full speed ahead and ship the excess overseas. As a result, for example, the international market is flooded with underpriced Chinese steel, threatening American steel mills and tens of thousands of American steelworkers’ jobs.

This is bad for the U.S. economy. The U.S. trade deficit in manufactured goods rose 15.7 percent ­– by $25.7 billion ­– in the first quarter as imports increased and exports slipped. In the first half of this year, the trade deficit with China rose 9.8 percent, a total of $15 billion.

As EPI points out, that means more U.S. factories closed and U.S. jobs lost. If China had bombed thousands of U.S. factories over the past decade, America would respond. But the nation has done virtually nothing about thousands of factories closed by trade violations.

The United States could take two steps immediately to counter the ill-effects of currency manipulation. Congress could pass and President Obama could sign a proposed customs enforcement bill. It would classify deliberate currency undervaluation as an illegal export subsidy. Then the manipulation could be countered with duties on the imported products.

The second step would be to include sanctions for currency manipulation in the Trans-Pacific Partnership trade deal that the administration is negotiating with 11 other Pacific Rim countries. The deal doesn’t include China, but it could join later. The deal does, however, include other countries notorious for currency interventions.

American manufacturers and American workers demand rightful protection from predatory international trade practices.

This blog originally appeared at OurFuture.org on August 18, 2015. Reprinted with permission.

Leo W. Gerard, International President of the United Steelworkers (USW), took office in 2001 after the retirement of former president George Becker.

Missouri Lawmakers Propose Ending Sexual Harassment By Telling Interns To Dress Modestly

Wednesday, August 19th, 2015

tara-culp-resslerSome Missouri state lawmakers have a controversial idea for preventing future sexual harassment cases in the legislature: Imposing a new “modest” dress code for teenage interns.

State representatives are trying to figure out how to respond to several incidences of harassment among their ranks. In July, State Sen. Paul LeVota (D) resigned amid allegations that he sexually harassed two interns. And in May, House Speaker John Diehl (R) — perhaps the most powerful lawmaker in the state — stepped down after the Kansas City Star reported that he exchanged sexually explicit text messages with a 19-year-old intern.

In response, lawmakers are attempting to make changes to the current internship program to provide more oversight. And at least two state legislators — Reps. Bill Kidd (R) and Nick King (R) — have thrown their weight behind an intern dress code.

“We need a good, modest, conservative dress code for both the males and females,” King wrote in an email to the rest of his colleagues after Kidd made the initial suggestion. “Removing one more distraction will help everyone keep their focus on legislative matters.”

The idea was met with derision from Kidd and King’s Democratic colleagues, as well as roundly mocked on Twitter. Critics pointed out that changing interns’ dress codes won’t get at the fundamental issue of lawmakers potentially harassing their staff or colleagues. Plus, they argued there isn’t anything inherently distracting about interns’ bodies that should prevent their bosses from being able to go about doing their jobs.

“If my plaid jacket or the sight of a woman’s bare knee distracts you from your legislative duties, I would look for other work,” Rep. Jeremy LaFaver (D) responded.

Missouri’s legislature isn’t the first to wade into this fight. Last year, Montana lawmakers madenational headlines for approving new dress code guidelines that stipulated “leggings are not considered dress pants” and women should be “sensitive to skirt lengths and necklines.” Female politicians in the state objected, saying the new rules created “this ability to scrutinize women” and were “totally sexist and bizarre and unnecessary.”

The argument over gender-based dress codes has also spread to middle schools and high schools across the country, as female students push back against the assumption that the way they dressmay distract their male peers from concentrating in class. Critics say this approach to dress codesreinforces the idea that women’s bodies are inherently tempting to men and that women are responsible for covering themselves up. The implicit message, then, is that it’s women’s job to change their behavior to prevent men from committing sexual crimes.

“Maybe voters should insist on a special requirement for men applying to be a Missouri lawmaker,” Kansas City Star columnist Yael Abouhalkah wrote on Tuesday. “It could rule out any men who consider themselves to be lascivious, salacious and simply indecent.”

This blog originally appeared on ThinkProgress.org on August 18, 2015. Reprinted with permission

Tara Culp-Ressler is a Senior Editor at ThinkProgress. She was previously a Health Editor, Health Reporter, and Editorial Assistant for the site. Before joining the ThinkProgress team, Tara worked at several progressive religious nonprofits, including Faith in Public Life, the National Religious Campaign Against Torture, and Interfaith Voices. Tara graduated from American University and is originally from Lancaster County, Pennsylvania.

 

THE ADA AT 25: A CELEBRATION

Wednesday, August 12th, 2015

Gary-PhelanTwenty-six years ago, Joseph Garrison, the senior partner at the law firm  where I worked in New Haven, CT, asked me to speak to a potential client  who claimed he was being discriminated against in his job because of his  multiple sclerosis.  As a new associate and a relatively recent law school  graduate, I had not yet handled any clients on my own.  However, Joe  enthusiastically supported my idea of carving out a niche in the area of  disability discrimination in the workplace, and this potential client provided the first opportunity for my first solo flight.

After hearing more details about how the potential client’s thriving career with this employer had stalled after his MS diagnosis, I suggested that we meet for a consultation.  “Are you accessible?” he asked.  “Absolutely,” I confidently replied, since our law office in New Haven was less than one block off the exit from the I-91 Highway and we had plenty of parking behind our office.

As I eagerly awaited the arrival of my first ADA client, the office manager stormed into my office and said, “Your new client is outside in the parking lot and he is very upset.”  When I went outside, I saw that he had arrived in a large van with a lift and used a wheelchair.  “I thought you said you were accessible,” he angrily asked.  As I looked at the steep staircase to the three-story brownstone building where our offices were located, I realized that perhaps there was more that I needed to learn about disabilities besides case law and legislative history.

Over the past 25 years, I have represented over 750 individuals with disabilities in litigation and negotiations.  I co-authored an ADA treatise, wrote too many supplements to the treatise, and read hundreds of ADA cases.  I taught disability law for six years as an adjunct law school professor.  I spoke about the ADA at over 100 conferences.

Therefore, when asked to say something to employment law practitioners about the ADA’s 25th Anniversary, I decided that the best contribution I could make – besides letting everyone know what accessibility means – would be to share what I have learned that you will not read in a case or in a treatise.

25 LESSONS LEARNED ABOUT THE ADA

  1. ADA cases require more interaction with other laws than any other law governing the workplace. ADA cases may involve issues under the Family and Medical Leave Act (“FMLA”), Social Security Disability Insurance law (“SSDI”), state workers compensation laws, the Genetic Information Non-Discriminate Act (“GINA”), the Employee Retirement Income Security Act (“ERISA”), the Pregnancy Discrimination Act (“PDA”) and the Affordable Care Act (“ACA”).  To handle ADA claims effectively, you need to become familiar with these other laws.
  2. The Job Accommodation Network continues to be the best source of information about workplace accommodations. It’s a free service of the U.S. Department of Labor’s Office of Disability Employment Policy.  This story illustrates its value.  A client of mine recently went into a meeting with her two supervisors and two HR representatives to discuss her request for an accommodation for an impairment that is relatively difficult to accommodate.  I provided her with a copy of JAN’s Fact Sheet which described both the impairment and the possible ways to accommodate it in the workplace.  I advised her to bring four copies of the three-page factsheet to the meeting.  She only had to distribute two copies – two attendees brought their own copy of the same fact sheet.  All five of them proceeded to brainstorm about what accommodations would most likely be effective – with the JAN fact sheet providing the road map.
  3. Employers that make some attempt to accommodate an employee with a disability are much more likely to prevail at summary judgment motion in a failure to accommodate case. For example, in Noll v. IBM, (2d Cir. May 21, 2015), a software engineer who was deaf used several accommodations provided by IBM, including on-site and remote ASL interpreter, communication access real-time translation (“CART”), internet-based real-time transcription and video relay series.  The Court upheld the dismissal of his claim that IBM failed to accommodate him because they refused to provide that all internal videos be captioned and all audio files have transcripts at the same time the videos were posted.  The Court reasoned that when the “employer has already taken (or offered) measures to accommodate the disability, the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is ‘plainly reasonable.’”
  4. Joe Garrison used to say that “a good job is better than a good lawsuit.” The adage applies to the ADA more than any other employment law statute.  A plaintiff’s lawyer should do everything he or she can to keep the person employed – if necessary, with a reasonable accommodation.  The job market for persons with disabilities is dismal.
  5. The ADA Amendments Act of 2008 expanded the scope of the definition of disability. However, the employee still must demonstrate that they meet the definition of disability.  I have heard some practitioners say that now almost every impairment is covered under the ADA.  They are mistaken.  For example, in Neely v. PSEG Texas, Ltd., 735 F. 3d 242 (5th 2013), the Court observed that the ADAAA “in no way eliminated the term “disability” from the ADA or the need to prove a disability or a claim of disability.  Although “the ADAAA makes it easier to prove a disability, it does not absolve the party from proving one.”  Also, in Felkins v. City of Lakewood, 2014 U.S. App. LEXIS (10th Cir. 2014), the court held that although the standard for proving that one has a “disability” is lower than it used to be, an individual must still show that one has an impairment that substantially limits a major life activity.  The plaintiff did not present adequate evidence that her avascular necrosis substantially limited any of her articulated major life activities (walking, standing, lifting, normal cell growth or circulatory functions).
  6. The reasonable accommodation requirement is not a “sliding scale” that varies based on the employee’s performance or personality. Employers continue to be both more flexible and reasonable in cases of “stellar” employees while often making little effort to accommodate an average or poor performing employee.  As a result, many ADA cases that have to be litigated will involve employees whose performance ratings are average.
  7. The ADAAA changed the law to say that when determining whether or not a person has a “disability” you look at them without the use of a mitigating measure. Due to medical and technological advances, there will continue to be mitigating measures that are developed and, for those that currently exist, improved.  Therefore, mitigating measures will become a bigger issues in ADA matters in the future.
  8. Retirement is gradually becoming a thing of the past. As employees live longer they are working longer – by choice or necessity.  The older someone gets, the more likely they will develop medical issues or impairments.  As a result, there will be an increase in the number of ADA matters due to our aging workforce.
  9. Employees are now likely to be more open about their hidden impairments – even when not seeking an accommodation. That could make those employers more vulnerable to termination.  However, employers are starting to realize that the positive effects of an impairment may provide the individual with an advantage in a specialized positon or field.  For example, 35% of entrepreneurs in America have dyslexia.  Individuals on the Autism spectrum often excel in technical fields.  Rather than discriminating against them, some progressive employers are recruiting them and adapting their work environments to help them thrive.
  10. While the ADAAA has expanded the scope of who may be covered under the ADA, it has also led to an expansion of the length of job descriptions. I am increasingly seeing very long job descriptions which include tasks which are rarely, if ever, performed.  The purpose of a job description is not to improve the employer’s odds of winning a summary judgment motion.  It also can be very transparent and can backfire.
  11. Unlike other discrimination cases, ADA cases provide the plaintiff’s lawyer with an opportunity to persuade the employer. Employers rarely acknowledge that they discriminated against an employee because of their race or gender or that an employee was sexually harassed.  However, the same employer may be willing to acknowledge that they acted out of fearing or lack of knowledge about the medical condition or that the condition can be accommodated.
  12. Despite the ADAAA, many judges still rely on pre-ADAAA case law and conclude that a person did not meet the definition of a “disability.” Never assume that either the court or defense counsel is familiar with the ADAAA’s changes.
  13. Attorneys should focus less on the name of the employee’s disability and more on how it effects the employee on a day-to-day basis.
  14. The reasonable accommodation process is a two-way street. Employees must be willing to disclose their disability.  Although the employee does not need to provide their entire medical file, they need to be willing to provide enough information to demonstrate that she has a disability and/or is able to perform the essential functions of the job, with or without an accommodation.  If she does not provide enough information, she risks having a court say that her failure to provide enough information obstructed the ADA’s interactive process.
  15. When an employee requests an accommodation for a disability, the Third Circuit’s decision in Taylor v. Phoenixville School District, 184 F. 3d 296 (3d Cir. 1999) provides the best guidance on how an employer should respond to the request. According to Taylor, an employer can show that it exercised good faith in the interactive process in a variety of ways, such as (1) meeting with the employee seeking an accommodation, (2) requesting information about the employee’s condition or limitations, (3) specifically asking the employee what he or she wants, (4) sharing some indication that the employee’s request was considered, and (5) offering and discussing alternative accommodations when the one requested was too burdensome.
  16. As medical insurance costs continue to escalate, employees whose medical conditions require substantial costs will be more vulnerable. I have found that towards the end of the year when employees find out how much their health insurance rates will increase, the number of calls I get from potential ADA clients rises.  Also, there will be an increase in the number of ADA charges by employees who have an association or relationship with someone – such as a spouse or child with substantial medical expenses that are covered under the employer’s health insurance plan.
  17. Due to the expansion of the definition of the ADA, employees who fall outside the scope of the traditional definition of disability may be covered. For example, women with pregnancy-related medical conditions will be covered in some circumstances.  Accommodations and flexibility tend to make everyone’s lives better.  For example, when a building owner installs a ramp due to the requirements of the ADA’s Title III Public Accommodation section, parents using strollers and older individuals with limited mobility also benefit.
  18. Employees seeking accommodations should avoid getting in “email wars” with the employer. Appeals to guilt or threats of lawsuits are not effective.  Telling the employer what the employer “must” provide usually fails.  Suggest accommodations but acknowledge that the employer has the final say as to what, if any, accommodation will be provided.  Offer to meet with the employer.  Provide the doctor’s contact information and invite the employer to speak to him or her.  Try to persuade the employer that the accommodation will “pay for itself.”
  19. Plaintiffs’ lawyers must familiarize themselves with the impairment. That does not just mean googling medical conditions about which they have never heard.  Start with websites like WebMD.  Don’t assume, for example, that you know about multiple sclerosis because a friend has it.  What is the diagnosis?  What are the symptoms?  Is it chronic?  Does the condition tend to deteriorate over time?  How can it be accommodated?
  20. Accommodation requests that involve technological advances and/or progressive workplace changes will continue to be a challenge for plaintiffs when litigated in court. Don’t assume that our judiciary is up to date on the cutting-edge trends in the modern workplace.
  21. Employees seeking accommodations are not required to use the “magic words” of reasonable accommodations when seeking an accommodation. They are only required to request some kind of change in their work environment due to their impairment.  Saying “I can’t do this anymore” or “I need help” might be enough.
  22. Employees are not required to disclose medical records or any other information to show that they are entitled to an accommodation unless and until the employer asks them to do so. Defense counsel continue to often claim that the employee was not covered by the ADA because they never provided any documentation of the condition – even though the employer never asked them to do so.
  23. GINA will start to play a much more important role as the cost of genetic testing decreases and health care costs continue to escalate. Also, due to the prevalence of social media, employers have access to much more information about employees’ personal lives as well as medical conditions which the employee’s parents or family members may have.  I tell my clients to assume that their employers are familiar with whatever they have posted on social media.  For example, if they post a photo from a 5K race to raise funds for breast cancer research and post a photo saying they ran in the race to honor their mom, a breast cancer survivor, assume their employer might be concerned that they are likely to develop breast cancer.
  24. The medical profession continues to be a major problem when navigating the ADA. Attorneys should consider options like drafting a list of practical questions or scheduling an appointment with the doctor and paying them for their time.  Attorneys need to realize that physicians are very busy, do not like “paperwork” and are in the midst of a transformation of their industry.  The problems I have encountered with doctors include letters that are (1) illegible, (2) only says if the employee can or cannot work, (3) tells the employer what they have to do for the employee, (4) have no clue about the patient’s job duties and/or (5) vacillates to avoid taking any definite position.  The problems with letters from employees’ doctors I have encountered include (1) illegible, (2) do not take into account the employee’s job description, (3) assume that any risk is a “direct threat” and/or (4) make stereotypical judgments.
  25. The ADA will continue to be the most creative and exciting area of employment law. The law continues to evolve.  Problem solving skills are paramount.  Medical and technological advances continue to alter the terrain.  As a result of the passage of the ADAAA, the focus on the law is back to where it was intended – on whether the individual with a disability can do the job with or without an accommodation.  Be willing to take risks and make new law.

Gary Phelan is a shareholder at Mitchell & Sheahan, P.C. He represents employees and employers in a wide range of matters, including disability discrimination. He is the co-author of Disability Discrimination in the Workplace (West Group). Gary was selected by peer review in Best Lawyers in America (1995-2014). He has written and lectured on a wide range of employment-related topics. Gary taught disability law, employment discrimination law and alternative dispute resolution as an adjunct professor for six years at the Quinnipiac University School of Law.

He often serves as a commentator on employment law topics and has appeared on ABC’s Good Morning America, CNN, NBC Nightly News, CBS This Morning, CBS Evening News, Fox Business News, Court TV and MSNBC.  He previously served on the Executive Board of the National Employment Lawyers Association (“NELA”), was president of the Connecticut Employment Lawyers Association and was the co-chair of NELA’s Disability Rights Committee.  He is the Chair of the Connecticut Bar Association’s Labor and Employment Section.

Gary is on the Board of Directors of A Better Balance and Smart Kids with Learning Disabilities. He is also on the Board of Advisors for the New York office of Disability Rights Advocates.

Gary graduated from Siena College and Albany Law School.

You Can Bet on These Racetrack Workers To Fight for a Raise From Their Billionaire Boss

Wednesday, August 12th, 2015

Bruce VailBALTIMORE—Boosters of the Maryland horse racing industry cheered earlier this year when Baltimore’s annual Preakness Stakes attracted a record-breaking crowd of more than 130,000. The huge crowd thrilled to the victory of the bay colt American Pharaoh, who would go on to win the Triple Crown, and a place in thoroughbred racing history. At the betting windows, a total of $85.161 million was wagered, another record breaker in the 140-year history of the race.

But there’s a dark side of Baltimore’s sports and entertainment complex: Local residents toil at low-wage jobs to support the huge venues and the extravagant incomes of out-of-town performers, whether those performers are football players, rock stars, or even horses (who, of course, don’t pocket their own pay).

That disparity was on full display on August 4 as union members and their supporters rallied at a gritty Baltimore street corner to protest union busting by Maryland Turf Caterers, a unit of the horse racing empire of Canadian billionaire Frank Stronach, which owns the Preakness track, as well as other tracks in Maryland, Florida, Oregon and California.

Union workers at the company are fighting off concession demands in contract bargaining that would make most workers ineligible for company healthcare coverage (and raise costs for the rest), end retirement benefits and cut back on overtime pay, says Margaret Ellis, an organizer for UNITE HERE Local 7.

Those workers are a group of about 40 cooks, servers, bartenders, porters and concession-stand attendants who alternate between assignments at the Preakness’ Pimlico Race Course and nearby Laurel Park, both owned by the Stronach Group.

Louis Jones, who works as a porter for Maryland Turf Caterers for over 20 years, says his job quality has declined, with his hourly wage stuck at $9.35 for seven years and Maryland Turf Caterers doing away with the periodic bonuses that once made the job more livable. The workers typically earn $9 to $11 an hour and have not seen any negotiated pay raises since the old contract expired in 2008, Ellis says.

“In some ways, it’s the same old story,” remarks Roxie Herbekian, President of Local 7. Local governments shower benefits on businesses like Stronach with the promise of creating jobs and economic prosperity, yet many of the jobs pay so poorly that they trap workers in a cycle of near-poverty, or worse. In Stronach’s case, the company benefits from elaborate state-sponsored schemes to subsidize the Maryland horse racing industry, with little or no benefit trickling down to the low-income workers who live in the neighborhoods surrounding the racecourses, Herbekian says. The Maryland Racing Commission, for example, collected about $48 million last year in a special gambling tax to distribute to the state’s racetracks, with the money dedicated to plumping up purses, or for improvements to track properties.

The site of this week’s demonstration provides a case in point. The sprawling Pimlico complex borders several of Baltimore’s segregated residential neighborhoods. At one end is the affluent Mt. Washington neighborhood, a leafy, mostly-white enclave where few track workers can afford to live. At another end is Park Heights, a dreary and economically depressed area populated by low-income African Americans, including some of the track workers. Tuesday’s demonstration took place at the corner of Park Heights Ave. and Belvedere, with the gigantic Pimlico grandstand dominating the view to the east, and boarded-up storefronts, run-down residences and dirty streets spreading out to the west.

“They think this is a hoodlum neighborhood, a ghetto neighborhood,” says Jones, who tells In These Times that the quality of life in Park Heights has declined steadily even as billions of dollars in horseracing money has passed though the race track. The neighborhood is desperate for an infusion of decent jobs, Jones says, but has been continually disappointed at lack of action on job creation from elected officials. A plan floated several years back to open a slot machine gambling parlor at Pimlico seemed to offer the promise of local jobs, he says, but the plan was abandoned in favor of a new Caesars Entertainment Corp. casino in the downtown tourist district

For Maryland Turf Caterers, the plan seems to be not to promote good jobs, but to turn them into bad ones by bullying the union workers, Ellis says. “They put me off the property” at the Laurel Race Course earlier this year, she says, which she believes was retaliation for her role as a union organizer. The union is seeking the intervention of the National Labor Relations Board in that incident, and is weighing other actions at the labor board.

Stronach Chief Operating Officer Tim Ritvo defended the company’s labor policies, insisting that the Maryland race tracks were losing money and cuts in labor costs were necessary if the tracks are to remain open at all. “Listen, it’s true the Preakness makes a ton of money. The problem is that we lose money the other 355 days of the year. We lost $5 million last year [in Maryland],” he tells In These Times.

“I’m originally a Democrat from Boston, so I don’t have a beef with unions,” he says. “We have a race track in Hallandale [Florida] where we have UNITE HERE and we don’t have any problems. That’s because it is profitable so we have the money to pay people. We have a hell of a lot more union members in Florida than we do here [in Maryland].”

“We take responsibility—we are not going to take our financial problems out on the workers,” he says. “We only want [the union members] to have the same medical and pension that all of our other workers have. We treat our workers as well as any other company in the same [catering] businesses around here, and a hell a lot of better than most restaurants,” in the area, Rivko says.

“They get a tremendous amount of money from the state,” retorts Local 7’s Herbekian. “So I don’t think the Stronach Group is going to miss a beat if they just pay those workers for healthcare, and a decent raise. These workers are not making some huge salaries that are going to break the bank.”

This blog originally appeared at InTheseTimes.org on August 7, 2015. Reprinted with permission.

Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

The Union Behind the Biggest Campaign Against Walmart in History May Be Throwing in the Towel. Why?

Wednesday, August 12th, 2015

David MobergIn the pre-dawn chill of Black Friday 2012, a half-dozen yellow school buses pulled up at a South Side Chicago Walmart store, disgorging a small group of striking Walmart workers and nearly 250 supporters.

Along with strikers and allies in 100 other cities around the country, they had come out that day under the aegis of the year-old Organization United for Respect at Walmart (OUR Walmart), created to give Walmart workers a vehicle to protest their mistreatment—including low wages, skimpy benefits, erratic scheduling and aggressive management suppression of employees’ voices at work.

“Somewhere, somehow, down the line, it’s going to make a big difference,” said Tyrone Parker, a striking night-shift stocker, at that first Black Friday action.

“If you weren’t excited after some of those Black Fridays, you were dead,” says formerUnited Food and Commercial Workers (UFCW) President Joseph Hansen, who started OUR Walmart and the labor-community coalition Making Change at Walmart in 2005. “It was going to be a long haul, but I thought we had no choice.”

After Hansen’s retirement last fall, the union’s 55-member executive board elected Secretary-Treasurer Anthony “Marc” Perrone as the next president. Leading up to the vote, Perrone had questioned the amount of money that had been devoted to the Walmart campaign without gaining any new members for the union, whose membership has declined in recent years. Several sources close to the campaign, not named because they are not authorized to release financial information, estimate that the overall cost had been about $7 million to $8 million a year.

In April, four months into Perrone’s tenure, the Washington Post reported rumors of potential cutbacks to OUR Walmart. In These Times’s sources say the union plans to cut the campaign’s budget by as much as 65 percent.

Sources close to the new leadership say no cuts are planned, only realignments, such as spending more money on advertising and public relations campaigns to highlight Walmart’s faults. At the same time, UFCW will try to parlay the Walmart efforts into “a broader retail campaign,” according to new Executive Vice President Stuart Appelbaum, regarded as an ally of Perrone. This probably will encourage more organizing at other retailers to win contracts and dues-paying members.

As Buzzfeed reported in June, the union also removed two directors of the Walmart effort, Dan Schlademan and Andrea Dehlendorf, in May. Meanwhile, the board of OUR Walmart—five worker-members and the two directors—has sought and received new funding from two progressive donors, according to the director of a funders’ group to which both belong.

Most key labor leaders, whatever their view of OUR Walmart, are unwilling to talk very much, because they hope to continue to work with UFCW on the Walmart campaigns, if possible.

Although OUR Walmart and the Fight for 15 (the Service Employees International Union-backed fast-food workers’ campaign, which has targeted McDonald’s) have been expensive for the unions, they’ve stoked worker and public fervor against two of the mightiest global corporations.

“The union’s biggest accomplishment is the development of OUR Walmart,” says an ally in the campaign who feels that new spirit may be lost in the reshuffling.

How big is too big?

The UFCW largely ignored Walmart when it was a small-town, Southern five-and-dime chain. But as Walmart moved north and west and into groceries, the union had to challenge the mega-retailer to protect its contracts. A massive array of strategies has been tested, with little success: organizing department by department (when butchers at a Texas store voted for the union, Walmart eliminated all its butchers); organizing in Quebec, where laws favor unions (Walmart closed the store); organizing in strong union towns, like Las Vegas (several campaigns failed after supervisors intimidated a majority of workers out of unionizing).

UFCW has also tried educating the public about the high costs of Walmart’s low prices. In 2005, both SEIU and UFCW began publicity campaigns about the corporation’s misbehavior (called, respectively, Walmart Watch and Wake Up, Walmart). Walmart Watch revealed a 2005 internal company memo on how Walmart might cut its already low pay and benefits without incurring bad publicity by increasing the number of part-time workers. Such well-aimed, sharp darts wounded the company’s reputation and may have been a factor in declining profits, although customers have also faulted Walmart for badly stocked, disorganized stores, unattractive produce and poor service.

But these campaigns did not yield union members. By failing to organize the retail behemoth, which provides 8.9 percent of jobs in the sector (which in turn employs nearly 1 in 9 U.S. workers), unions lost power to set wage and labor standards. Since 1983, the percentage of retail workers who belong to unions has declined by half—to 4.4 percent.

When Schlademan started work at the UFCW in 2010 on what would become the new Walmart strategy, he tried to learn from workers and organizers in past campaigns, as he explained in an interview with In These Times in December. First, he concluded, the campaign had to break down the barriers isolating workers from each other, both within and among stores. Second, Walmart workers wanted to be “front and center” in the campaigns and in solving problems. Third, workers had to discover the power of collective action, primarily through strikes, which Schlademan called “probably one of the most liberating things labor does. Striking—just [the act of] striking—helps build leaders.”

Over the next three years, OUR Walmart’s key achievement was mobilizing workers to take direct action against the company. OUR Walmart members challenged management at both their workplaces and at shareholder meetings in Bentonville, Ark., often with work stoppages, sit-ins or similar protests. In the process, effective and committed rank-and-file leaders emerged.

The campaign also won praise for its effective use of online organizing. Organizers and members used the web to move workers into reallife collective protests, build small groups of leaders at individual stores, and arrange local and national direct actions. The online connections produced more direct, horizontal relationships between Walmart workers than in most unions, which have a more hierarchical organization.

OUR Walmart said the campaign was just trying to make Walmart a better corporate citizen, not organize a union. Technically that was true (and tactically necessary, given labor law restrictions on picketing employers for long periods). But in spirit, OUR Walmart resembled a strong minority union, without enough votes to win a formal union and collective bargaining, but with other tools that could be used to solve workers’ problems.

The campaign wrung several concessions from Walmart. Workers won a few pilot programs to reduce inconsiderate scheduling, and a worker-led campaign to “Respect the Bump” yielded better pregnancy accommodations. Accompanied by publicity campaigns attacking the company’s stinginess and its owners’ extreme wealth, worker actions undoubtedly helped prompt Walmart’s decision in April to raise its lowest wages to $9 an hour this year and $10 next year.

Hopes for transforming Walmart—and thereby the whole low-wage economy—rose among supporters.

OUR Walmart is “a little IWW-ish,” Schlademan said in December. In their early 20th-century heyday, the Industrial Workers of the World eschewed contracts in favor of direct action at work. In OUR Walmart, Schlademan sees a similar appetite for militant action and a more vigorous involvement in the collective, horizontal conversation.

At the time, Schlademan said, OUR Walmart was preoccupied with securing its right to exist without being attacked all the time: “Walmart must realize OUR Walmart is not going away.”

But sustaining an expensive campaign like OUR Walmart is difficult with voluntary dues of $5 a month per member. Schlademan has since been cut from the UFCW payroll but is still working with OUR Walmart. And rumors of UFCW withdrawing funds have begun circulating, although a network of progressive donors recently pledged money for OUR Walmart to maintain its work.

If UFCW, the organization’s sponsor, cuts back on OUR Walmart, how will managers—and workers—interpret the move?

Critics of the union’s focus on OUR Walmart believe that broadening the agenda to all retail will spread around organizing dollars more effectively, yielding more unionized shops and more dues-paying members. No organizing is easy, but looking beyond Walmart may provide more realistic targets. In New York—the historic stronghold of the Retail, Wholesale and Department Store Union (now a department within UFCW)—UFCW Vice President and RWDSU President Stuart Appelbaum has overseen successful organizing of clothing boutique workers, such as clerks at the Swedish-owned “cheap chic” H&M stores.

Victory at such companies will bring new members but will not necessarily transform the retail industry the way success at a major chain like Walmart or Home Depot could.

The union will almost certainly maintain some special focus on Walmart. “Nobody wants to walk away from or abandon effort on Walmart,” says one union staffer, who was not authorized to speak with reporters. But the union’s Walmart project “will be a more media-focused campaign,” relying on print and television ads, says the staffer.

Media buys can be very expensive, however. Forbes reported that UFCW “spent six figures” on a Fourth of July ad blitz portraying Walmart as unpatriotic for stashing $76 billion in 15 foreign tax havens. And if past attacks haven’t altered Walmart’s stance on unions, will more exposés do the trick?

On the other hand, the sweeping victories of the 1930s and 1960s in industries from automobiles to healthcare suggest the value of a sector-wide strategy for retail. But can one union take on a sector with 16 million workers?

It starts with the workers

Stephen Lerner is the architect of SEIU’s Justice for Janitors campaign, one of the most successful sector-wide organizing efforts of the past three decades. He argues that, with labor hanging by a thread, most U.S. unions have gone into defense mode—which only occasionally delays further slippage—rather than playing offense using creative, large-scale campaigns.

Though most analysts see the evershifting Walmart campaign as a defensive effort to keep Walmart from driving down labor standards at other, unionized grocery chains, Lerner believes OUR Walmart is an example of a sweeping, innovative effort. “It’s pretty impressive what workers in OUR Walmart have achieved so far,” he says. He notes that strikes have yielded concrete victories and that creative online organizing has allowed workers to help move people into action, not simply to “scream into the void.”

For workers to form a union against the will of an industry or a big company like Walmart requires “an enormous amount of time” to understand the issues, overcome fears, develop leaders, and formulate a “theory of how to beat the company,” which may vary from target to target, Lerner says. Justice for Janitors’ big breakthrough, in a 1988 organizing campaign in Denver, came in part from understanding that targeting building owners, for whom janitorial costs are minuscule, was essential to organizing the small, costsensitive cleaning companies. “There’s not one tactic or secret sauce to take on an entire industry,” he says.

As UFCW revises or expands its organizing mission, it would seem smart to look for ways to apply the strategy and style of work of OUR Walmart—that is, educating and empowering member-organizers and leaders—throughout its retail organizing. That includes recognizing the utility of the internet for real organizing, breaking barriers and building solidarity and expanding open, direct, horizontal lines of communication among members and workplace leaders. It also includes realizing the crucial role of strikes and direct action in building a sense of collective power and communicating with supporters and the public.

OUR Walmart member Tyfani Faulkner, 32, a high school graduate from Sacramento who knew nothing about the labor movement when she took her job, now loves going online to answer questions or solve others’ problems, or to work for legislation or a candidate she favors (most recently, Bernie Sanders). Her “proudest moment,” she says, was participating in a two-hour sit-in at Walmart this past November. OUR Walmart has produced many powerful worker-leaders and vocal progressives like Faulkner who organize effectively—and at no cost.

The emergence of leaders like Faulkner reinforces the urgency of taking seriously Lerner’s key advice, which is as simple as it is often ignored: “You can’t win without the workers.”

This blog originally appeared at InTheseTimes.com on August 11, 2015. Reprinted with permission.

David Moberg, 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. He can be reached at davidmoberg@inthesetimes.com.

Lacie Little: You’re Un-Fired

Wednesday, August 12th, 2015

Leo Gerard  Lacie Little won back last week everything Indiana University Health Inc. took from her –  except her job. Her beloved nursing job.

She got back wages and a formal public statement by the hospital corporation saying that it  removed the firing from her work record. So she’s un-fired.

But she’s not rehired. The hospital behemoth refused to consider restoring Lacie to her  nursing job for seven years, long enough, it hopes, to prevent her from helping form a union  there. Despite everything that has happened to her, Lacie hasn’t given up that goal. Now, she’s  working for my union, the United Steelworkers (USW), trying to organize nurses.

Indiana University (IU) Health fired Lacie on March 30, three days after she began trying to persuade her fellow nurses to unionize. Lacie wanted her co-workers to join together to collectively bargain with IU Health for the same reason many nurses want to negotiate with their hospitals. They love their profession; they’re devoted to their patients, and they want to help their hospitals be the best that they can be.

IU Health Inc. believed it knew what was best for the bottom line of the hospital system – and that wasn’t a nurses union. So like many employers, it took action to squash the nascent effort by employees to gain a voice at work by organizing. Firing workers for trying to form a union is illegal. But institutions – even ones supposedly dedicated to restoring health or to Catholic theology – do it all the time anyway because the penalties are so very paltry and the fear instilled is so very profound.

Corporations know they can stall an organizing campaign with just the threat of firing. Duquesne University in Pittsburgh recently used this tactic in a startling way. It included in a pleading to the National Labor Relations Board (NLRB) a threat to refuse to rehire for future semesters two adjunct professors who had testified at an NLRB hearing about efforts to organize at Duquesne, which holds itself out as a religious institution. One of the adjuncts described Duquesne’s written threat as bone chilling.

Lacie felt both unnerved and betrayed when the hospital corporation fired her. Her partner was five months pregnant with their second child. She had responsibilities, and the termination left her unsure how she would fulfill them. She could not believe the hospital system she so loved had done this to her.

The doctors and nurses and staff at Indiana University Health endeared themselves to Lacie when her grandfather, Robert Little, was hospitalized at Methodist, an IU institution, just after she graduated from high school. He was admitted to the cardiovascular critical care unit, where Lacie would later work.

Robert Little was having trouble breathing. To distract him, the nurses joked with him. They held his gargantuan hands. The doctor took the time to find out about Robert Little as a person. The physician learned that Robert Little was a union bricklayer who had worked hard all his life and who continued chopping wood as he fell increasingly ill in his 70s. Robert Little would not be happy bedridden, tube invaded, machine dependent.

At that time, Lacie’s mother was a nurse at IU Health. She had worked in its bone marrow transplant unit in the very early days when many patients did not survive. Lacie says her mother taught her an important lesson about that:

“She told me that taking care of someone in their last days and hours of life is an honor. You usher them out. And you can make it a great experience or an awful experience. You can truly take care of the patient and the family. I feel Methodist really did that for my family, took the time to get to know my grandfather and explain things to us. They were able to let him die with dignity. He was clean and warm and not in pain and had his family around him. Everyone has to die. It might as well be in a good way.”

Lacie started work at IU Health when she was just 19 years old. She earned bachelor’s degrees in psychology and biology. Then, while working as a secretary for the hospital system, she returned to college to get her nursing degree. She says she learned: “Nursing is caring for people. Great nurses care for their patients. They don’t just take care of them.”

In 2009, she launched her nursing career in the cardiovascular critical care unit where her grandfather had died. Every day, she challenged herself to care for her patients like they were her grandfather.

The stories she tells show that she reveled in accomplishing that. She talks about caring for an older farmer who had been injured in a tractor accident. At one point as he began to get better, he kept motioning toward his face. Still connected to a breathing tube, he could not talk. She knew he was trying to ask for a shave. Lacie recounts:

“I got some hot water and put some wash cloths in there. I sat him in a reclining chair and leaned him back and said, ‘Here we are at the barber shop’ and gave him a really good shave. He kept touching his face and giving me thumbs up. The shave wasn’t necessary to get him better, but we had fixed all of the acute things, and this was important for helping him feel better. We have to do some things to help them feel good mentally.”

When Lacie began in nursing, the hospital system enabled nurses to help patients feel better. But that changed.

In the fall of 2013, the hospital corporation laid off 800 workers, including Lacie’s mother, who had worked there 25 years. At about the same time, IU Health instituted a management method described as “going lean.” What that meant to Lacie was that the hospital system had the best doctors and nurses and staff but was setting them up to fail at meeting goals like treating their patients like their grandfathers.

“They wanted us to do more with less. And they would say that. Everything was about cost, cost, cost. But we care about patients over profits,” she said. It meant there was rarely time to give a farmer a shave.

Lacie says nurses began talking about being in moral distress, “People were leaving the hospital and going home and crying because they felt they did not take good care of their patients.” They did all the basics. They gave patients all of the medications but had no time to talk to them like they were human beings. “If you are not spoken to, you feel like a specimen, not a person,” Lacie explains. Feeling like a specimen does not help heal.

That’s when the union talk started. Because her father and grandfather were union men, Lacie said family experience had taught her that unions could put workers in a position to get CEOs to listen. “I knew unions were a way to stack up enough people so they were on a level playing field with the CEO,” she said.

Earlier this year, the IU nurses chose the USW to help them organize and began holding informational meetings, three a day, twice a week. Lots of nurses attended. They discussed problems at work and how organizing could be a solution. “People were encouraged because they wanted to do something, not just talk about it,” Lacie says.

In March, Lacie and several other nurses began asking co-workers if they were willing to sign a card petitioning for an election that would determine whether they could form a union.

Lacie was careful to do this only while she was on lunch and other breaks. She cautioned co-workers not to sign unless they too were on a break. She chatted with on-duty nurses but did not take their signatures. Even so, on her third day of doing this, IU Health Inc. officials accused her of accepting signatures from nurses who were on duty.

The hospital corporation suspended her, then fired her just days later. “I was dumbfounded,” she says, “I felt betrayed because I had given my loyalty to IU Health.” She had worked there a decade.

Not long after the hospital system terminated Lacie, the state Health Department issued a report saying the hospital was short staffed and that it adversely affected patient care.

The USW hired Lacie immediately after the firing, but the termination imperiled renewal of her nursing license. She knew if she fought the hospital corporation through the NLRB process and the courts, she would win. But that could take years. And she’d be unable to work as a nurse in the meantime.

So she took the settlement deal. It requires IU Health Inc. to post notices at its hospitals saying that it had rescinded Lacie’s firing and discipline against her and that federal law forbids the hospital corporation from threatening, interrogating, surveilling, disciplining, suspending or firing anyone for attempting to form a union.

Lacie’s firing steeled the commitment of some, who started a Facebook meme saying, “I’ve got a Little fight in me.” But for many others, the firing had the effect the hospital corporation intended. Nurses were fearful, and turnout at union meetings declined.

Studies show the number of illegal firings of union activists increasing and the number of union members in the United States dwindling. Workers like Lacie need legislation to stop it. This time last year U.S. Rep. Keith Ellison (D-Minn.) introduced the Employee Empowerment Act, which would do just that. It could be called Lacie’s Law. But that wouldn’t be fair to the thousands of other workers who suffered as a result of the same illegal corporate union-busting practice.

Lacie insisted on a provision in the agreement allowing her to apply to return to IU Health in seven years because, she said, “I still love the IU Health nurses and doctors and staff.”

This blog originally appeared at OurFuture.org on August 11, 2015. Reprinted with permission.

About the author: Leo W. Gerard is the president of the United Steelworkers International union, part of the AFL-CIO. Gerard, the second Canadian to lead the union, started working at Inco’s nickel smelter in Sudbury, Ontario at age 18. For more information about Gerard, visit usw.org.

Carly Fiorina Thinks Corporations Should Be Able To Deny Paid Leave To New Mothers

Wednesday, August 12th, 2015

 

Bryce CovertAfter Jake Tapper, host of CNN’s State of the Union, asked Republican presidential candidate Carly Fiorina about Netflix’s announcement that it will offer a year of unlimited paid family leave, the former Hewlett Packard CEO said she opposes any requirement that employers offer their workers paid leave.

“I don’t think it’s the role of government to dictate to the private sector how to manage their businesses, especially when it’s pretty clear that the private sector, like Netflix…is doing the right thing because they know it helps them attract the right talent,” she said. “I’m not saying I oppose paid maternity leave. What I’m saying is I oppose the federal government mandating paid maternity leave to every company out there.”

But the vast majority of private sector employers don’t seem to agree that offering paid leave is the right thing to do. Only 12 percent of workers in the private sector get paid family leave from work. These benefits are also far more likely to be offered to higher-income, white collar workers and not to the low-income workers who may need it the most to be able to afford time off. Just 5 percent of the lowest-paid 25 percent of employees get paid family leave, compared to 21 percent of the highest 25 percent.

Fiorina noted that while she was at Hewlett Packard, the company offered paid maternity and paternity leave. Current online versions of its employee handbook only refer to “several leave opportunities to provide additional time when you need it, including [unpaid] Family and Medical (FMLA) Leave, state family leaves, [and] parental leave” without specifying how much leave employees might get. But in response to a New York Times inquiry in 2013, the company said new mothers get six weeks of full pay under a short-term disability plan with additional weeks at lower pay, while new fathers get just 10 days.

Netflix and other technology companies have made headlines for far more generous leave: Netflixannounced unlimited paid leave for the first year after the arrival of a child, while Google offersfive months and many others offer 17. But they are the exception to the norm. And without a requirement, leave policies will differ wildly from workplace to workplace.

The lack of a federal law requiring maternity and paternity leave makes the U.S. a lonely outlier on the world stage. It is one of just three countries among 185 that doesn’t guarantee new mothers paid time off, while another 70 include new fathers.

Three states have decided to enact their own policies: California, New Jersey, and Rhode Island. And the evidence from those experiments goes against Fiorina’s claim that it would be “ineffective” and “hypocritical” for government to mandate leave when it “hasn’t gotten its basic house in order.” In California, the vast majority of businesses report that the paid leave law had either a positive impact or none at all on profitability, employee performance, and productivity and it helped reduce turnover. In New Jersey, the majority of businesses also say that it hasn’t hurt their finances, while some saw similar benefits.

Paid family leave is generally found to keep women in the labor force and to expand it. The savings in turnover can come to an estimated $89 million a year for the country’s employers. But the lack of paid leave is one of the reasons that the country’s rate of women in the labor force is being far outpaced by other developed countries.

Fiorina has also come out against issues related to women’s equality in the past. She opposes the Paycheck Fairness Act, which is aimed at closing the gender wage gap, and blames the gap on unions and government bureaucracies.

“This blog originally appeared at ThinkProgress.org on August 10, 2015. Reprinted with permission.”

Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Former Sports Broadcaster Thinks He Shouldn’t Have Been Fired Over Anti-Gay Statements

Wednesday, August 5th, 2015

Ian Millhiser Craig James is a former professional football player and longtime sports broadcaster who, in 2012, took time off from his broadcasting career to mount an unsuccessful bid for the United States Senate. During that campaign, according to a lawsuit James filed Monday, he opposed equal marriage rights for same-sex couples, and called upon “Christians” to “stand up” against the advance of marriage equality. Though he briefly worked as a broadcaster for Fox Sports following his campaign, James says he was fired shortly after Fox uncovered his past anti-gay statements.

James now works for the Family Research Council, an anti-gay organization that the Southern Poverty Law Center designates as a “hate group.”

The crux of James’s lawsuit are claims that Fox “discriminated against James because of his religionin violation of the Texas Commission on Human Rights Act.” Yet his complaint (which, admittedly, is only available to the public in a redacted form) cites no actual evidence that Fox’s decision to fire James was motivated by the fact that James identifies as a Christian. Nor does it claim that Fox Sports treated other employees who held similar anti-gay views differently because those employees are not Christian. Rather, James says that “Fox Sports informed James that his short off-the-cuff statement about his beliefs regarding marriage . . . was the sole reason Fox Sports terminated him,” and he does not appear to disagree with Fox’s alleged claim that they were motivated solely by their own opposition to James’s anti-gay statements.

Instead, James attempts a two-bumper bank shot to convert this anti-anti-gay firing into a kind of religious discrimination. James, his lawsuit emphasizes, holds anti-gay beliefs that are motivated byhis religious beliefs, and this, he claims, is enough to protect his job even if Fox would be allowed to fire an employee who made similar statements that were driven by a secular belief.

In other contexts, the Supreme Court has rejected attempts to use cries of religious discrimination to excuse acts of bigotry. Four years after Congress banned whites-only restaurants, for example, the owner of a South Carolina barbecue chain put up a sign protesting that “[t]he law makes us serve n***ers, but any money we get from them goes to the Ku Klux Klan.” He also claimed that the Civil Rights Act of 1964 “contravenes the will of God,” and that he should be exempted from having to follow it because of his religious beliefs. The Supreme Court disagreed, in Newman v. Piggie Park Enterprises, labeling the restaurant owner’s claim “patently frivolous.”

James’s case, however, was filed in Texas court, where the conservative Texas Supreme Court may see things differently than the justices of another era. It also arises under a different area of the law than Piggie Park. James sued under the Texas Commission on Human Rights Act, which, among other things, prohibits discrimination “because of or on the basis of any aspect of religious observance, practice, or belief, unless an employer demonstrates that the employer is unable reasonably to accommodate the religious observance or practice of an employee or applicantwithout undue hardship to the conduct of the employer’s business.”

There is surprisingly little Texas case law interpreting this particular provision. Nevertheless, Texas civil rights law explicitly tracks “the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” so federal court decisions examining similar cases should inform the Texas judges confronted by James’s case. At least one federal appeals court case, however, suggests that employers are not required to accommodate the anti-gay views of their employees, even if those views are motivated by religion.

In Peterson v. Hewlett-Packard Co., the United States Court of Appeals for the Ninth Circuit considered an employee who posted Bible verses that, among other things, said that men who have sex with men should be “put to death.” Admittedly, this is a more egregious case than theJames case, as James was not fired for saying that gay or bisexual men should be executed (when he was later asked about executing gay people, he responded tepidly). Nevertheless, the court inPeterson offered a sweeping dismissal of the idea that an employer is required to accommodate statements that could cause lesbian, gay or bisexual employees to feel unwelcome. It is an undue hardship, the court explained, to inhibit an employer’s “efforts to attract and retain a qualified, diverse workforce, which the company reasonably views as vital to its commercial success.”

James was an unusually visible employee who made his anti-gay statements in an unusually public forum. And James admits that Fox Sports was motivated by similar fears to the ones that concerned the employer in Peterson. He quotes a Fox spokesperson, who reportedly said that James was fired because “[w]e just asked ourselves how Craig’s statements would play in our human resources department” and concluded that “[h]e couldn’t say those things here.”

Nevertheless, the Texas judicial system is unusually conservative, so there is no guarantee that it will not give people like James a special right to make offensive statements about LGBT people with impunity.

This blog originally appeared in ThinkProgress.org on August 4, 2015. Reprinted with permission.

Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Bar Owner Eliminates Tips So He Can Pay Cooks And Dishwashers A Living Wage

Wednesday, August 5th, 2015

Bryce CovertPortland, Oregon’s new bar Loyal Legion doesn’t just offer customers 99 different beer choices. It also requires them to pay zero in tips.

When owner Kurt Huffman opened the bar, he wanted to figure out to deal with a problem plaguing all of his establishments: the nearly impossible search to hire talented staff in the back of the house cooking and prepping food and washing dishes. “I can’t find line cooks anymore,” he said. The search for a single cook takes his team three or four weeks, an eternity in the business. “I’ve got to figure out how to get the kitchen more money so we can keep talent.”

He noted that the cost of living in the city is so high that almost all of his dishwashers and line cooks have to work two jobs to get by. “The system is broken in terms of how people are paid,” he said.

So to create a new pool of money to be able to increase the wages in the back to be comparable with what the people serving customers in the front are making, he eliminated tipping and instead has raised prices by 20 percent — so a beer has gone from $5 to $6. That’s allowed him to increase the minimum pay for the back of the house to $15 an hour, which increases to $18 after three months. The front of the house will also get an $18 minimum wage.

Huffman himself used to work in the back of restaurants, and he noted that the new system allows him to address an “ethical dilemma” he faced when paying those positions less than servers and bartenders who also rake in tips. “I used to work with dishwashers and cooks, and everybody is busting our ass,” he explained.

A growing wave of American restaurants has been getting rid of tipping in favor of a variety of other models. While it started with high-end places on the coasts, it’s now extended to bars like Huffman’s, diners, coffee shops, and barbecue joints. One piece of the reasoning, which Huffman also noted, is that tipping is no longer an expression of gratitude for service but simply a given. “In the olden days, tips were actually an index of quality of service,” he said. “They aren’t anymore. People tip always the same.” In fact, the quality of service only accounts for a percentage point or so change in the size of tips; instead, they tend to fluctuate more on gender, race, and looks.

The no-tip model could also serve as an experiment for how his sit-down restaurants might address a higher minimum wage. Huffman expects a $15 minimum wage requirement will soon be enacted in Portland given that it’s already been passed in San Francisco and Los Angeles, the cityraised the wage for its own workforce to that level earlier this year, and voters will weigh in on an overall hike to that level come November. “I think everybody in the restaurant industry, everybody who’s paying attention, is thoughtful and mindful of how we’re going to address that change,” he said.

His company ChefsTable Group has 16 restaurants, and he estimated that for six of them, that sort of cost increase will be nearly impossible to contend with without other changes. One change he’s considering is adding an automatic gratuity to the bill — perhaps 5 percent — that would go to helping cover that cost, and customers would be able to add what they wanted on top of that.Some restaurants in other cities are instituting higher wages before they even go into effect by eliminating tips and raising prices.

This blog originally appeared in ThinkProgress.org on August 5, 2015. Reprinted with permission.

Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Catholic Teacher Fired For Being Lesbian Fights Back

Wednesday, August 5th, 2015

Jack JenkinsIn June, Margie Winters was fired from her job as director of religious education at Waldron Mercy Academy in Merion, Pennsylvania for being public about her same-sex marriage.

“What it was like inside, was like a death,” Winters told a local CBS affiliate in Philadelphia.

But Winters and a band of supporters are refusing to let that be the end of her story, or her teaching career. On Monday afternoon, the former schoolteacher and 50 of her supporters marched to the Archdiocese of Philadelphia’s Center City offices to deliver a petition demanding her reinstatement. She attempted to deliver the hefty box of papers, signed by more than 22,000 people, inside the building, but was denied entry by a security guard.

“Because I’m so threatening,” Winters joked.

Winters has been embraced by outraged local Catholics — and even the mayor of her city — who oppose her firing. Among other expressions of support for the veteran teacher, a group of parentshas formed the organization “Stand With Margie,” complete with a website, a Facebook pagesporting more than 11,000 “likes,” and a GoFundMe campaign that has raised $17,000 for Winters and her wife. In addition, the petition drive was organized by Faithful America, an online progressive Christian advocacy organization that claims over 300,000 active participants.

“Margie Winters’ firing was unjust and contrary to Catholic values, and she should be reinstated immediately,” the petition, addressed to Philadelphia Archbishop Charles Chaput, read. “Please inform the school’s leadership that you will not interfere with their staffing or threaten their status as a Catholic school.”

According to Philly.com, the Archdiocese of Philadelphia has denied it had anything to do with her firing. But Winters disputes this claim, noting she told school administrators when they hired her eight years ago that she was in a same-sex relationship. The only reason she was fired, she says, was because the archdiocese received an anonymous complaint about her sexuality in June — mere weeks before the Supreme Court declare same-sex marriage legal across the country, which Chaput publicly opposed.

“It wasn’t until the archdiocese was notified that something changed,” she told Philly.com. “You can draw your own conclusions.”

Regardless of archdiocese’s involvement with Winters’ termination, the archbishop has said he supports the school’s decision.

“I’m very grateful to the Religious Sisters of Mercy and to the principal and board members of Waldron Mercy for taking the steps to ensure that the Catholic faith is presented in a way fully in accord with the teaching of the church,” Chaput, speaking of Winters, told the Philadelphia Inquirer. “They’ve shown character and common sense at a moment when both seem to be uncommon.”

Winters’ struggle is frustrating for her family and her supporters, but it is by no means unique. Several Catholic schoolteachers and employees have been let go for being “publicly” gay over the past year in Iowa, Massachusetts, Missouri, and Illinois. The firings have sparked sustained protests led by students, teachers, and parishioners, and Catholic communities in California, Ohio, and Florida are pushing back against local Catholic leaders in their states who have threatened to terminate LGBT employees who have public relationships.

Catholic leaders, however, maintain that they have the legal right to discriminate against LGBT people in hiring, citing a 2011 Supreme Court case that expanded the so-called “ministerial exception.” The legal precedent traditionally only allowed religious groups free reign over who they hire for ordained positions, but now gives them to ability to bypass nondiscrimination policies for any position they deem to be a “minister” — including schoolteachers. In addition, Pennsylvania currently has no robust statewide LGBT workplace protection laws, although lawmakers areintroducing bills to change that.

Although the impetus for such terminations is ostensibly Catholic theology, the decision to fire people for being open about their sexuality ultimately rests with administrators and Catholic officials. Last month in New York City, for example, a newly-hired organist at a Catholic churchstoked controversy by openly posting about his marriage to another man on Facebook. But while an organist was fired for doing the exact same thing in Illinois, the archdiocese of New York has yet to issue a statement on the matter.

The decision to fire Winters is also oddly timed, coming just two months before a planned visit by Pope Francis to Philadelphia. Pope Francis has not changed traditional Catholic teaching opposing homosexual acts, but famously declared “Who am I to judge?” when asked about gay priests in 2013, and has asked the church to become less “obsessed” with same-sex marriage and abortion.

This blog originally appeared in ThinkProgress.org on August 4, 2015. Reprinted with permission.

Jack Jenkins is the Senior Religion Reporter for ThinkProgress. He was previously the Senior Writer and Researcher for the Faith and Progressive Policy Initiative at the Center for American Progress, and worked as a reporter and blogger for the Religion News Service. His stories and analysis have appeared in the Washington Post, Huffington Post, Real Clear Politics, National Catholic Reporter, and Christian Century, among other publications. Jack got his bachelor’s in history and religion/philosophy from Presbyterian College and holds a Master’s of Divinity from Harvard University. He also plays harmonica and ukulele.

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