Today we released a blueprint for how to rewrite NAFTA to benefit working families. This past election there was much-needed discussion on the impact of corporate trade deals on our manufacturing sector and on working-class communities. The outline below puts forward real solutions that should garner bipartisan support if lawmakers are truly serious about realigning our trade policies to help workers.
We need a different direction on trade. This movement has been largely driven by working people. As we approach the inauguration of a new president, it is important that everyday working people’s perspectives lead the debate, starting with how to rewrite NAFTA.
The AFL-CIO has long supported rewriting the rules of NAFTA to provide more equitable outcomes for working families. To date, the biggest beneficiaries of NAFTA have been multinational corporations, which have gained by destroying middle-class jobs in the U.S. and Canada and replacing them with exploitative, sweatshop jobs in Mexico. It doesn’t have to be this way. With different rules, NAFTA could become a tool to raise wages and working conditions in all three North American countries, rather than to lower them.
Key Areas for Improvement
1. Eliminate the private justice system for foreign investors.
NAFTA established a private justice system for foreign investors, thereby prioritizing corporate rights over citizens’ rights, giving corporations even more influence over our economy than they already have. This private justice system, known as investor-state dispute settlement, or ISDS, allows foreign investors to challenge local, state and federal laws before private panels of corporate lawyers. Although these lawyers are not accountable to the public, they are empowered to decide cases and award vast sums of taxpayer money to foreign businesses. Under NAFTA, these panels have awarded millions of dollars to corporations when local and state governments exercise their jurisdictional power to deny things such as municipal building permits for toxic waste processing facilities. ISDS gives foreign investors enormous leverage to sway public policies in their favor. Scrapping the entire system would help level the playing field for small domestic producers and their employees.
2. Strengthen the labor and environment obligations (the North American Agreement on Labor Cooperation and the North American Agreement on Environmental Cooperation), include them in the agreement, and ensure they are enforced.
The NAFTA labor and environment side agreements were not designed to effectively raise standards for workers or to ensure clean air and water. Instead, they were hastily patched together to quiet NAFTA’s critics. These agreements should be scrapped and replaced with provisions that effectively and robustly protect international labor and environmental standards. Violators should be subject to trade sanctions when necessary—so that we stop the race to the bottom that has resulted from NAFTA. Without stronger provisions, environmental abuses and worker exploitation will continue unchecked.
3. Address currency manipulation by creating binding rules subject to enforcement and possible sanctions.
Within months after NAFTA’s approval by Congress, Mexico devalued the peso, wiping out overnight potential gains from NAFTA’s tariff reductions. This devaluation made imports from Mexico far cheaper than they otherwise would have been and priced many U.S. exports out of reach for average Mexican consumers. Countries should not use currency policies to gain trade advantages—something China, Japan and others have done for many years. All U.S. trade agreements, including NAFTA, should be upgraded to create binding rules, subject to trade sanctions, to prevent such game playing.
4. Upgrade NAFTA’s rules of origin, particularly on autos and auto parts, to reinforce auto sector jobs in North America.
NAFTA’s rules require that automobiles be 62.5% “made in North America” to qualify for duty-free treatment under NAFTA. Even though 62.5% seems high compared with the Trans-Pacific Partnership’s inadequate 45%, it still allows for nearly 40% of a car to be made in China, Thailand or elsewhere. The auto rule of origin should be upgraded to eliminate loopholes (through products “deemed originating” in North America) and to provide additional incentives to produce in North America. This, combined with improved labor standards, will contribute to a more robust labor market and help North American workers gain from trade.
5. Delete the procurement chapter that undermines “Buy American” laws (Chapter 10).
NAFTA contains provisions that require the U.S. government to treat Canadian and Mexican goods and services as “American” for many purchasing decisions, including purchases by the departments of Commerce, Defense, Education, Veterans Affairs and Transportation. This means that efforts to create jobs for America’s working families by investing in infrastructure or other projects, including after the financial crisis of 2008, could be ineffective. This entire chapter should be deleted.
6. Upgrade the trade enforcement chapter (Chapter 19).
NAFTA allows for a final review of a domestic anti-dumping or countervailing duty case by a binational panel instead of by a competent domestic court. This rule, omitted from subsequent trade deals, has hampered trade enforcement, hurting U.S. firms and their employees. It should be improved or omitted.
This blog originally appeared at aflcio.org on December 20, 2016. Reprinted with permission.
Jackie Tortora is the blog editor and social media manager at AFL-CIO.
The income gap between the classes is growing at a startling pace in the United States. In 1980, the top 1 percent earned on average 27 times more than workers in the bottom 50 percent. Today, they earn 81 times more.
The widening gap is “due to a boom in capital income,” according to research by French economist Thomas Piketty. That means the rich are living off of their wealth rather than investing it in businesses that create jobs, as Republican, supply-side economics predicts they would do.
Piketty played a pivotal role in pushing income inequality to the center of public discussions in 2013 with his book, Capital in the Twenty-First Century. In a new working paper, he and his co-authors report that the average national income per adult grew by 61 percent in the United States between 1980 and 2014. But only the highest earners benefited from that growth.
For those in the top 1 percent, income rose 205 percent. Meanwhile, the average pre-tax income of the bottom 50 percent of workers was basically unchanged, stagnating “at about $16,000 per adult after adjusting for inflation,” the paper reads.
It notes that this trend has important political consequences: “An economy that fails to deliver growth for half of its people for an entire generation is bound to generate discontent with the status quo and a rejection of establishment politics.”
But the authors also note that the trend is not inevitable or irreversible. In France, for example, the bottom 50 percent of pre-tax income grew by about the same rate—32 percent—as the overall national income per adult from 1980 to 2014.
The difference? In the United States, “the stagnation of bottom 50 percent of incomes and the upsurge in the top 1 percent coincided with drastically reduced progressive taxation, widespread deregulation of industries and services, particularly the financial services industry, weakened unions, and an eroding minimum wage,” the paper reads.
Piketty and Portland
President-elect Donald Trump’s administration promises at least four years of policies that will expand the gap in earnings. But a few glimmers of hope are emerging at the local level.
The city council of Portland, Oregon, for example, recently approved a tax on public companies that pay executives more than 100 times the median pay of workers. The surtax will increase corporate income tax by 10 percent if executive pay is less than 250 times the median pay for workers, and by 25 percent if it’s 250 and over. The tax could potentially affect more than 500 companies and raise between $2.5 million and $3.5 million per year.
The council cited Piketty’s Capital in the Twenty-First Century in the ordinance creating the tax. Steve Novick, the city commissioner behind it, recently wrote that “the dramatic growth of inequality has been fueled by very high compensation of a few managers at big corporations, as illustrated by the fact that 60 to 70 percent of people in the top 0.1 percent of income in the United States are highly paid executives at large firms.”
Novick said that he liked the idea when he first heard about it because it’s “the closest thing I’d seen to a tax on inequality itself.” He also said that “extreme economic inequality is—next to global warming—the biggest problem we have in our society.”
Investing in children
There is also hopeful news in the educational realm. James Heckman, a Nobel Laureate in economics at the University of Chicago who has spent much of his career studying inequality and early childhood education, recently published a paper that lays out the results of a long-term study.
Predictably, perhaps, the effects of the programs weren’t limited to children. High-quality early childhood education also allowed mothers “to enter the workforce and increase earnings while their children gained the foundational skills to make them more productive in the future workforce,” a summary of the paper reads.
“While the costs of comprehensive early childhood education are high, the rate of return of [high-quality programs] imply that these costs are good investments. Every dollar spent on high quality, birth-to-five programs for disadvantaged children delivers a 13% per annum return on investment.”
The research is important because early childhood education has bipartisan support. Over the summer, the Learning Policy Institute released a report that highlighted best practices from four states that have successful early childhood education programs. Two of them—Michigan and North Carolina—are swing states in national politics. The others are Washington and a solidly red state, West Virginia.
Although it isn’t a substitute for other policy tools to address inequality, like progressive taxes, early childhood education has strong bipartisan support because it produces measurable payoffs for both children and the economy. One study found, for example, that the economic benefit of closing the educational achievement gaps between children of different classes would be $70 billion each year.
Early childhood education fosters an “increasingly productive workforce that will boost economic growth, provide budgetary savings at the state and federal levels, and lead to reductions in future generations’ involvement with the criminal justice system,” the Economic Policy Institute recently noted. “These benefits will, of course, materialize only in coming decades when today’s children have grown up. But the research is clear that they will materialize—and when they do, they are permanent.”
This blog originally appeared at inthesetimes.com on December 26, 2016. Reprinted with permission.
Theo Anderson, an In These Times staff writer, is writing a book about the historical and contemporary influence of pragmatism on American politics. He has a Ph.D. in American history from Yale University and teaches history and literature seminars at the Newberry Library in Chicago.
A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.
Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.
Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”
McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”
GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”
McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.
Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.
The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.
A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.
This article was originally posted at Thinkprogress.org on December 13, 2016. Reprinted with permission.
Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at firstname.lastname@example.org. Follow him on Twitter at @ZackFord.
With wage and hour lawsuits becoming increasingly common across the country, there was little reason for the lawyers at Amazon.com’s Seattle headquarters to be surprised when one landed on their doorstep recently. But they may have been concerned to learn that their newest legal adversary is “Sledgehammer Shannon” Liss-Riordan, a Boston attorney who gained legal fame by beating corporate giants like FedEx and Starbucks in just these kinds of contests.
The new lawsuit against Amazon is similar to one of Liss-Riordan’s best known cases—a suit against FedEx that charged the company was misclassifying delivery drivers as independent contractors when the workers were, as a matter of law, regular employees. Liss-Riordan won that fight and, this year, FedEx announced that it would give up on a series of related legal fights and pay $240 million to some 12,000 drivers in 20 states.
Liss-Riordan took the fight to Amazon in a suit filed October 4 in the U.S. District Court for the Western District of Washington. It charges Amazon and Amazon Logistics Inc. with violating the minimum wage law in Seattle, state labor law in Washington and the federal Fair Labor Standards Act (FLSA).
Liss-Riordan explains that Amazon is experimenting with a delivery system where the company contracts with individuals to use their own cars to pick up parcels at Amazon warehouses and deliver them to local customers. The drivers typically sign up for a specific work shift and are paid an hourly wage. They are not compensated, however, for expenses like gasoline, car maintenance, telephone calls, or other incidentals. When subtracting these expenses, drivers often end up earning less than the minimum wage and are denied overtime pay, she says.
That description of delivery methods was echoed by Stacy Mitchell, co-director of the advocacy group Institute for Local Self-Reliance. Along with co-author Olivia LaVecchia, Mitchell has just completed a major study of Amazon’s business practices that warns that the giant corporation is killing good jobs in local economies as it seeks to monopolize different sectors of the retail business.
“Amazon has substantially expanded its warehouses in recent years and is experimenting with the so-called ‘last mile’ of the delivery system. They are increasingly using on-demand drivers, and also regional couriers, to move goods,” Mitchell says. “In the past, this sort of ‘last mile’ delivery was typically done by the U.S. Postal Service or United Parcel Service. USPS and UPS jobs are good-paying union jobs, and Amazon is undermining these with its gig economy model.”
In These Times reached out to Amazon to comment on the lawsuit. Spokesman Jim Billimoria provided the following response:
“The small and medium sized businesses that partner with Amazon Logistics have their own employees and are required to abide by applicable laws and Amazon’s Supplier Code of Conduct, which focuses on compensation, benefits, and appropriate working hours. We investigate any claim that a provider isn’t complying with these obligations.”
Liss-Riordan says this sort of a defense is typical of large corporations, many of which have lost wage and hour lawsuits in court.
“It’s not what you say that counts, it’s what you do,” she said. “We’ve been able to demonstrate, time and time again, that a lot of these corporations just don’t live up to their stated policies when it comes to real-life employment practices on the ground. That’s why you see more and more of these suits.”
Indeed, a 2015 report from the law firm of Seyfarth Shaw LLP described an “onslaught” of litigation resulting in a record high number of federally-filed wage and hour cases in 2015. According to the firm, there were 8,781 such cases in 2015, compared to only 1,935 in 2000.
Asked about her nickname “Sledgehammer Shannon,” Liss-Riordan laughed out loud.
“It’s sort of silly. Mother Jones magazine did an article last year about a case I have against Uber, and I get a lot of jokes. I don’t care. The fact is, we will take on cases like this and fight them for 10 years if we have to.”
This blog originally appeared at Inthesetimes.com on December 12, 2016. 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.
Donald Trump’s claim that, because of him, SoftBank would be investing $50 billion in the U.S. and creating 50,000 jobs was greeted somewhat less credulously than his Carrier claims. But it’s still worth an extra look at the details. It’s not just that SoftBank had already planned a major investment fund before the election:
Worse yet, this deal is lose, lose, lose for the domestic economy. First, this inflow of foreign capital will bid up the U.S. dollar, which will reduce the competitiveness of U.S. manufacturing by making imports cheaper and exports more expensive. This will increase the U.S. trade deficit and reduce employment in U.S. manufacturing. The U.S. dollar has gained about 25 percent in the past two-and-a-half years, and one-fifth of that increase has occurred since the election. As a result, the trade deficit in manufactured goods increased sharply in 2015 and is poised for another increase after the recent run-up in the dollar. Meanwhile, the United States has lost 78,000 manufacturing jobs since the first of the year due, in part, to the rising trade deficit.
Second, foreign investment in the U.S. economy is dominated by foreign purchases of existing U.S. companies. Between 1990 and 2005, foreign multinational companies (MNCs) acquired or established domestic subsidiaries that employed 5.25 million U.S. employees. The vast majority (94 percent) of jobs associated with those investments were in existing firms acquired by foreign MNCs. However, 4 million of those jobs disappeared through layoffs or divestiture of part or all of those companies […]
SoftBank provides a clear example of plans to acquire and merge existing U.S. businesses.
This article originally appeared at DailyKOS.com on December 17, 2016. Reprinted with permission.
Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.
Coal miners, their communities and Faith groups are calling on President-presumed-Elect Donald Trump to honor his campaign promise to help coal workers. In an “Open Letter to President-Elect Donald Trump from coal miners,” hundreds of coal miners from Appalachia to Western coal lands asked for help for coal communities across the country.
They want Trump to take action to make sure coal CEOs and companies keep promises to restore the landscape and local environments by “reclaiming” the old mines, which would mean jobs in coal communities. They also asked Trump to protect the pension and health benefits they were promised. The companies and CEOs made millions from the mines and should not be allowed leave behind a devastated environment and ruined communities.
The letter was organized by Interfaith Worker Justice (IWJ), a network of Faith groups and worker centers working “to mobilize people of faith and work advocates in support of economic justice and worker rights at the local, state and national levels.” It asks Trump to stop coal CEOs and companies from abandoning their responsibility to clean up old mines.
The letters asks Trump to, “Ensure federal and state governments use every legal option to prevent coal companies from shirking their commitment to reclaim and repair the public lands mined for private profit.”
“I worked in the mines for 25 years until I had an accident and could not work anymore,” said Charles E. Boyd of McCalla, Alabama. “I am on disability due to my work injury. I also have black lung. My pension and health benefits was promised to coal miners by our government. Please keep the promise.”
Dear Congressman Zinke, nominee for Secretary of the Department of the Interior,
Anybody who works on American coal mines knows that the industry is rapidly changing. Mines are closing, coal companies are declaring bankruptcy, and many of us are losing our jobs and our livelihoods. For some of us, these are the only jobs that we’ve ever known – once assured of a lifelong and stable career with good pay and a community in which to raise a family. No more.
We all have strong opinions about why our industry is suffering: which politicians or whose agenda is to blame. Regardless of politics, the bottom line is that we need to take care of our brothers and sisters who are facing uncertain times.
That means ensuring that coal companies follow through on their commitments to coal miners across the country. As you take action to revitalize the coal industry, we urge you and Congressman Zinke to do everything possible to hold true to your promise on the campaign trail that you are beholden to “no special interest. My only interest is you, the American people.”
Here’s how the Trump Administration can be a champion for coal mining communities in crisis:
Ensure federal and state governments use every legal option to prevent coal companies from shirking their commitment to reclaim and repair the public lands mined for private profit.
Through bankruptcy proceedings, we have learned that several companies are working to drastically reduce their financial and legal responsibility to reclaim mined land.
Any new or expanded coal leasing should be in concert with the strongest possible assurances that coal companies will honor their obligations to communities to create jobs by reclaiming and rehabilitating mined land.
Work with Congress to increase revenue and funding for communities as well as programs that support local economies.
There are a number of pieces of legislation on the table in Congress that would invest in coal communities, fund reclamation and economic revitalization projects, and protect promised benefits to coal miners and their families.
We urge you to work with Congress to pass these laws if they do not move forward before your inauguration
We, the undersigned coal miners and concerned individuals from across the country, demand action that will bring relief to coal communities.
This post originally appeared on ourfuture.org on December 15, 2016. Reprinted with Permission.
Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.
Last month, the highest-ranking member of the Texas Senate, Jane Nelson, pre-filed 11 bills to be considered in the legislative session that begins on January 10. A former teacher, Sen. Nelson has often focused her legislative attention on protecting children, and her new bills are no different—with five of the 11 bills dealing with children. However, nestled between SB 74, which affects children with high mental needs in the foster system, and SB 76, which allows municipalities to prohibit sex offenders from living near a “child safety zone,” is SB 75, which seeks to protect children from labor unions.
The bill would prohibit unions from accepting as a member anyone under 18 years of age unless the union first procures a signed consent form from the minor’s parent or guardian. According to a statement from Sen. Nelson’s office, the bill “protects parental rights by requiring consent before a minor may join a union, and it protects minors from entering into a contract they may not fully understand.” (Nelson’s staff initially responded to a request for an interview with the senator by asking questions about specifics, but then ignored attempts to schedule one.)
If the bill passes, children as young as 14 will be able to enter into an employment agreement with most employers without parental consent, but they will not be permitted to join a union without a signed parental consent.
The purpose of such a bill is not immediately clear. There appears to be no problem for which this bill is a solution. Texas has long been a right-to-work state, which means that any worker who is represented by a union can choose to pay no dues. It is also not clear how many unions even have minors as members in Texas.
Still, the proposed bill may be both symbolically and practically important, and could represent a new front in state-level attacks on unions. Symbolically, the bill positions unions as something that children need to be protected from. It hardly seems coincidental that the bill “protecting” children from unions is in the same packet as bills protecting children from sex offenders or a parent who sexually assaults the other parent. The bill treats unions not as organizations that represent and work on behalf of workers, but as something that preys on innocent children.
Practically, the bill may also have a significant effect. The number of workers between the ages of 16 and 24 that are represented by a union has increased steadily each year since 2013. (The Bureau of Labor Statistics does not measure union membership for the subgroup of those between 16 and 18 years old). Furthermore, in the past few years, some of the major labor campaigns—from Fight for 15 to a push for the National Labor Relations Board (NLRB) to treat franchisors and franchisees as joint employers—have involved industries where younger workers represent a significant percentage of the workforce. Though workers at most fast food chains may still be far off from joining a union, a proliferation of bills such as the one being pushed in Texas would provide yet another roadblock in organizing.
Unfortunately, labor may be in a bind in terms of how best to respond to this bill. If it does not fight it, then the bill will likely become law in Texas and serve its onerous purposes. It may then spread to other states and become one more general state-level hurdle that labor has to contend with. However, if it does fight it, then it may serve to publicize the bill, and place itself in the loaded position of having to argue publicly that unions pose no harm to children.
The best approach may be to push a poison pill amendment that would either silently kill the bill, or, if passed, make the bill, on balance, a net positive. Such an amendment should similarly seek to protect young workers in the workplace, but from employers’ unscrupulous practices. It could take any number of forms, such as a just-cause provision for all workers under 24 years of age in order to protect young workers who may feel less confident in asserting their rights for fear of losing their jobs. A bill with such an amendment would have little chance of passing in Texas, but it would reframe the debate without publicizing the original bill’s faulty premise.
Conservatives have long tried, with some success, to portray unions as exploitative enterprises. Right-to-work laws position unions as organizations that stand as a barrier to work, while unfairly assessing dues. This proposed parental consent bill is of a similar vein—treating unions as something that harms or exploits workers, rather than as the representative of workers that they are.
This post originally appeared on inthesetimes.com on December 14, 2016. Reprinted with permission.
Companies in the nation’s second-largest city must stop requiring job applicants to disclose criminal convictions on hiring forms next year after Los Angeles Mayor Eric Garcetti signed a “Ban the Box” law there on Friday.
The law does not prevent companies from conducting background checks once they have made a conditional job offer to a finalist. But it eliminates a standardized checkbox question about previous run-ins with the law, a common feature of job paperwork that makes it much harder for people to get back on their feet after serving their time. Firms with fewer than 10 employees are exempt from the law.
Sometimes called fair-chance hiring laws, such restrictions on how hiring managers solicit information about applicants’ criminal histories have grown in popularity over the past few years.
But the laws have typically applied only to hiring that involves taxpayer money, at government agencies and vendors who do business with the government. When President Obama moved to ban the checkbox last year, the executive action he took was limited to federal government hiring.
Inmates at a crowded California prison. CREDIT: AP Photo/Eric Risberg, File
Out of 24 states with fair-chance hiring laws, just nine extend to the private sector. Los Angeles is the 15th local jurisdiction to extend ban-the-box thinking to private firms. Among the five largest American cities, only Houston has yet to ban the checkbox.
Between 60 and 75 percent of people coming out of prison are unable to find work in their first year back on the street. Research indicates that an applicant’s chances of a callback drop by half if they indicate a criminal record—though white applicants who check the box fare significant better than black ones. There is also evidence that people who get far enough into the process to actually meet with a company representative are much more likely to get an offer despite their record—a key argument for eliminating the check-box filtering mechanism.
The idea’s spread during the latter years of Obama’s tenure seemed emblematic of the broader re-evaluation of a criminal justice system that is more punitive than rehabilitative. Formerly incarcerated people and their supporters rallied in front of the White House in 2015 to call for action, sharing stories of the hardships they faced in finding legitimate work after re-entering society.
The administration’s eventual move on hiring paperwork was just one in a flurry of progressive reforms to the incarceration system, all of which may be in jeopardy once president-elect Donald Trump takes office in January.
Americans leaving prison face high hurdles to regaining their economic and social footing without returning to crime. These obstacles are complicated to dismantle, rooted as they are in societal and individual prejudices about people with criminal pasts.
Policy changes can’t will charity into people’s hearts, of course, and there’s even some evidence to suggest that personal prejudices around the formerly incarcerated are so entrenched that fair-chance laws trigger ugly unintended consequences.
But as the National Employment Law Project notes, that analytic conclusion gets things backward.
“Rather than identifying the root of the problem—which is both coupling criminality with being African American and the dehumanizing of individuals with records—the argument blames the reform,” NELP researchers wrote in response. “This distinctly economic framework, which views employers as entirely rational actors, fails to appreciate the extent to which negative racial stereotypes continue to plague the hiring process.”
It’s bad enough that a ton of corporations require their customers and employees to submit all their legal claims to private arbitration, a secretive system that is rigged against the individual. But to compound the unfairness, a growing number of corporations are hiding their forced arbitration clauses to make them more and more obscure. As corporations become more secretive, and try harder to slip these by consumers so they won’t notice, it makes it less and less likely that people will actually read and agree to them (or choose not to). Here at Public Justice, we are fighting back against this trend: we have repeatedly argued to courts around the country that arbitration clauses should be held to the same standards as other types of contract terms – people should never be bound by these clauses unless they agree to them.
Recently, in the case of Meyer v. Uber, federal judge Jed Rakoff, who is both nationally prominent and widely respected, held that Uber had failed to form an enforceable agreement to arbitrate with customers through its mobile app. Judge Rakoff looked at the two things that a corporation must do to form a contract – it must conspicuously disclose the contract term, and it must ensure that individuals unambiguously agree – and found that Uber had failed to do either of these things. This was a puzzling error by Uber, which has been able to meet this basic standard in its arbitration clauses with both customers and workers in a number of other parts of its business.
Now the case is on appeal to the U.S. Court of Appeals for the Second Circuit. Uber is essentially arguing (with support from the U.S. Chamber of Commerce) that the normal rules of contract do not apply to apps. Uber’s position is that arbitration clauses don’t need to be conspicuously disclosed in this setting, and that we can just assume that any customer who uses Uber has “agreed” to arbitrate even if they haven’t taken any step to indicate that this is so. Public Justice filed an amicus brief in this case, explaining both (a) why Uber’s position violates core principles of contract law, and (b) how arbitration clauses are not exempt from these basic rules of law. Even if courts have favored enforcement of arbitration agreements, they still insist that there BE an actual agreement.
Both of the basic legal rules – conspicuous disclosure and unambiguous agreement – are essential. If Uber wins that it need not conspicuously disclose information, that would open the door to arguments that even if an arbitration clause is hidden in ways that no (or almost no) consumers would ever find it, they’re still enforceable. In other settings, we’ve already seen corporations try increasingly bizarre ways to slip arbitration clauses past people (e.g., one car manufacturer put an arbitration clause deep in the manual for a car, wrapped up in fake leather in the glove compartment, and argued that all consumers should be “deemed” to have read it), and it’s crucial that courts draw the line against such adventurous mistreatment of consumers.
Similarly, courts should insist on an unambiguous signal from a consumer that they’ve agreed (like a signature on a contract, or clicking “yes, I agree” to terms and conditions). Uber’s position is that if the consumer does the same thing they would have done if they’d never known about the terms and conditions (essentially inferring consent from silence by the consumer), that’s enough. But assuming that people agree to something when they’ve never said so is dangerous and wrong. The silliness of reading consent into a consumer’s silence was made clear in a famous episode of The Simpsons:
Homer Simpson talking to God: “Here’s the deal: you freeze everything as it is, and I won’t ask for anything more. If that is OK, please give me absolutely no sign.”
“O.k., deal. In gratitude, I present you this offering of cookies and milk. If you want me to eat them for you, please give me no sign.”
“This will be done.”
(This scene was actually cited in Jude Boyce Martin’s dissent in Seawright v. American General Financial Services, Inc. [6th Cir. 2007]).
The upshot, as we set out in our amicus brief, is that courts need to insist that corporations trying to impose arbitration on consumers at least follow basic rules of contract law. Hiding arbitration clauses where no one will read them, and then assuming that consumers agreed if they just do nothing, is a recipe for enforcing a lot of fine print without any consent.
We are very grateful to the fantastic team of lawyers who wrote this amicus brief, spearheaded by Andrew Kaufman of Lieff Cabraser Heimann & Bernstein, along with Jonathan Selbin and Jason Lichtman also of Lieff Cabraser; and Jahan Sagafi, Nantiya Ruan, Paul Mollica, and Peter Romer-Friedman of Outten & Golden LLP.
This blog originally appeared on publicjustice.net on December 7, 2016. Reprinted with permission.
Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy. Follow him on Twitter: www.twitter.com/FPBland.
The recovery from the Great Recession has been long, slow and steady. But it has also contributed unexpectedly to an increase in involuntary part-time work, which needs new regulation to protect workers from abuse, according to a new study released this week by the Economic Policy Institute.
Author Lonnie Golden finds that voluntary part-time work has remained more or less stable since 2007, around the start of the recession. But involuntary part-time work has increased by about 18 times the rate of growth of all work, and five times faster than part-time work. Currently, some 6.4 million Americans who want full-time jobs are stuck working part-time hours, according to Golden.
“The increase is almost entirely due to the inability of workers to find full-time jobs, leaving many workers to take or keep lower-paying jobs with less consistent hours to make ends meet,” he says. “In several industries, relying more on part-time work seems to have become the ‘new normal.’”
Employers often play it cautious after a recession, waiting to restore full-time jobs and hiring more part-timers as their businesses pick up. But, as Golden points out in his study, the recession isn’t responsible for the rise in involuntary part-time work. Structural shifts are almost entirely at play in this change in employment.
Golden argues that such an expansion represents a change in the long-term strategy of businesses in four key sectors of the economy, specifically, retail trade, leisure and hospitality, professional and business services, and educational and health services.
He reports that about 54 percent of the growth of involuntary part-time employment since 2007 comes from retail and leisure and hospitality, while the remainder of the growth mostly stems from the other two types of industries.
Involuntary part-time workers are about equally men and women, but workers in other demographic groups—black, Hispanic and prime-age workers, for example—more commonly suffer from not being able to find full-time jobs.
Notably, Golden found no evidence that the Affordable Care Act’s employer mandate caused the rise in involuntary part-time work.
Involuntary part-time workers usually work about half the hours of full-timers, get lower rates of pay per hour and fewer, if any, benefits. Workers at fast-food chains and other employers that rely extensively on part-timers also report that managers often reward or punish workers by adjusting the number of hours they are given. Such irregular scheduling of involuntary part-time work can disrupt family life. On the other hand, if workers have control over their schedules, such variation is one of the principal appeals of part-time work.
Golden reports that some experiments in public policy suggest a way of regulating part-time work to improve the prospects for part-time employees. One approach used in many countries and recommended by the International Labor Organization (ILO) is to require employers to provide part-timers the benefits of full-time workers, prorated to the hours they work. The ILO recommends setting minimum standards for hours of work, as the Washington, D.C., city council did recently for janitors in large commercial buildings.
Following the lead of legislation such as San Francisco’s “Predictable Scheduling and Fair Treatment” ordinance, states and cities could enact rules giving part-time workers a right of first refusal if additional hours of work become available. Golden also recommends adjusting unemployment insurance to make sure that part-timers can benefit.
In the end, he argues, part-time work needs to make sense for workers at least as much as it does for employers.
“Although there has been a structural shift toward involuntary part-time labor, we can address it with specific policy solutions that will help workers,” Golden says. “We should use every tool in our toolbox to further the economic recovery and help benefit millions of workers with more stable, better-paying job opportunities.”
This blog was originally posted on In These Times on December 7, 2016. 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 email@example.com.