Archive for March, 2017
Friday, March 31st, 2017
On César Chávez Day, lost in all the news about the Trump administration’s criminalization and scapegoating of immigrants and attempts to withhold federal funds from cities with policies that protect immigrants, are the 450,000 low-wage-earning migrant workers employed in the United States through the H-2A, H-2B, and J-1 visa temporary foreign worker programs. Many of the workers in these temporary visa programs are in a precarious situation and vulnerable to abuse and retaliation at the hands of employers and their agents.
These “guestworkers” often arrive in the United States in debt, and are tied to and controlled by their employers. Research shows guestworkers are often paid lower wages than similarly situated U.S. workers, and earn wages similar to those of undocumented immigrant workers. This is reminiscent of the Bracero Program—a large guestworker program in the 1940s, 50s, and 60s that admitted hundreds of thousands of Mexican workers to work temporarily on U.S. farms and in other low-wage occupations—and which César Chávez fought against. Chávez knew that exploited, indentured, and underpaid workers would degrade labor standards for all workers in the United States, including immigrants. After scandals, political pressure, and President John F. Kennedy campaigning against it, the program was terminated in 1964.
Sadly, America has not learned its lesson. The United States is repeating an historical mistake, once again admitting large numbers of guestworkers in low-wage occupations. With the possibility looming that the Trump administration will reduce enforcement and oversight in guestworker programs—which will be further exacerbated if Trump’s proposed 21 percent budget cuts to the Department of Labor (DOL) are enacted—the United States may once again face scandals like the one where the bodies of guestworkers who died in a traffic accident were not immediately claimed, because farm labor contractors and agricultural growers argued over who their employer was.
A snapshot of today’s low-wage guestworker programs
The H-2A program allows employers to hire workers from abroad for agricultural jobs that normally last less than one year, including picking crops and sheepherding. There is no numerical limit on H-2A visas, and in recent years, the H-2A program has grown sharply, doubling over the past five years to 134,000 workers, and accounting for nearly 10 percent of the crop labor force.
H-2B workers are employed in seasonal (nine months or less) low-wage nonagricultural jobs like landscaping, forestry, food processing, hospitality, and construction. There is an annual numerical limit of 66,000, but workers often stay longer than one year or have their stay extended. Despite the cap on the H-2B program, a “returning worker exemption” allowed 85,000 new visas to be issued in 2016.
The J-1 visa is part of the Exchange Visitor Program, a cultural exchange program run by the State Department that has 14 different J-1 programs, including programs that permit Fulbright Scholars to come to the United States, but also five de facto low-wage guestworker programs. J-1 workers in low-wage occupations are au pairs, camp counselors, maids and housekeepers, lifeguards, and staff restaurants, ice cream shops and amusement parks and national parks like Yellowstone. Only one of the five programs is numerically limited: the Summer Work Travel program is capped at 109,000 per year.
Numerous media reports and legal proceedings have documented how H-2A, H-2B, and J-1 guestworkers are treated poorly. For example, Buzzfeed News asked whether H-2A and H-2B are “The New American Slavery?” and Politico Magazine reported this week that the State Department covered up and lied about thousands of complaints received from J-1 workers. Immigrant worker advocates have been sounding the alarm bells about all three programs for years, but the employers who hire guestworkers continue to lobby for more visas and fewer rules that protect workers.
So, how many workers are employed in these three programs? Calculating the number of workers is not straightforward, and the government does not publish reliable data by visa. Using the same methodology I developed in this report, I estimate in Table 1 below that there were over 270,000 low-wage workers employed in the H-2A and H-2B programs in 2016.
Table 2 shows that the number of J-1 workers in low-wage occupations was 167,960 in 2015, and the number in 2016 was likely similar (2016 data on J-1 are not available).
Modern-day low-wage guestworker programs larger than Bracero at its peak
The grand total of guestworkers employed in low-wage occupations in all three programs in 2016 is 438,190 (Table 3), close to half a million, but many were not employed in the United States for the entire year. On average, H-2A workers were in jobs certified to last for seven months, more than half of the H-2B workers counted were employed for the entire year, and most J-1 workers counted were employed for four months, but one-third worked for the entire year.
Comparable estimates for the number of temporary Bracero workers are difficult to come by. The most commonly cited statistic is that there were almost 450,000 Braceros “admitted” in the peak year of 1956, meaning that this many workers authorized through the Bracero program entered the United States. However, using admissions to count unique workers, as many reports have done, is misleading. For example, the number of H-2A workers admitted in 2015 was more than 2.5 times the number of visas (a proxy for the number of workers) issued that year, in part because some H-2A workers live in Mexico and commute daily to jobs in the Arizona and California deserts, generating an individual, counted admission each time they enter the United States.
A Bracero worker’s job could last from six weeks to six months, also making it difficult to count the actual number of workers. To get a better measure of how many Bracero workers there were and what their impact was on the labor market, the DOL calculated the average annual number of Bracero workers, generating an estimate of full-time equivalent workers. The table below, from a 1973 study, shows 125,700 full-time equivalent (FTE) Bracero workers in 1956, the peak year for admissions, suggesting a ratio of 3.5 Bracero admissions per FTE job. The peak year for FTE Braceros was in 1959, at 135,900. (Ignore the number of “immigrants” below, which represents Mexican nationals who became permanent residents in those years.)
A similar “annual average” calculation of temporary, low-wage foreign workers present in the United States in 2016 would be lower than 438,000; but how much lower depends on the length of time that each individual worked in the United States. However, no matter how you count, there’s no question that there are more low-wage guestworkers today than there were Bracero guestworkers in the peak year for either Bracero admissions or FTE workers.
Lobbying blitz around guestworker programs is already underway, and will be exacerbated by the Trump administration’s immigration enforcement
Through an executive order, President Trump has already redefined the priorities for deportation so broadly that nearly every unauthorized immigrant is now considered a priority for detection and removal, and his administration is expected to step up enforcement against unauthorized migration on the southern U.S. border and at worksites within the interior of the United States. This will impact the five percent of the U.S. labor force that is comprised of unauthorized immigrant workers. Two-thirds of the entire unauthorized population has lived in the United States for at least 10 years, and unauthorized migration over the Mexico-U.S. border is at historically low levels, which means the Trump administration will mostly be trying to remove long-term residents who are integrated into the United States through employment and family ties.
If a significant number of unauthorized immigrants are removed and fewer new workers arrive, employers are likely to request more guestworkers, particularly in agriculture, landscaping, hospitality, and construction. Employers seeking new workers are likely to pressure the Trump administration and Congress to create new temporary foreign worker programs and/or expand the current programs, as well as to loosen and curb the enforcement of rules that protect migrant and U.S. workers. Specifically, employers are pressing Congress to eliminate the requirement to provide housing for H-2A workers and they want to remove the cap on H-2B visas.
This corporate lobbying blitz has already gotten underway, as many low-wage employers have become addicted to having indentured employees who can’t complain or legally search for a better U.S. job. Just yesterday, the Wall Street Journal editorial board called for more guestworkers in low-wage jobs, warning of a “growing labor shortage” in agriculture and construction. But they failed to mention that the earnings of most farmworkers are still extremely low and that the latest JOLTS data from the Bureau of Labor Statistics show there are three unemployed construction workers for every job opening—not exactly signs of a dire shortage.
Both Democrats and Republicans seem to have a soft spot for employers seeking low-wage guestworkers. At a recent hearing, Republican Governor Sonny Perdue and Democratic Senator Kristen Gillibrand discussed and described the H-2A program as too “cumbersome” for farm employers, even though there is no limit on the number of H-2A workers they can hire and DOL has processed 99 percent of applications in a timely way in 2017. Low-wage nonfarm employers persuaded 32 legislators to sign a bipartisan letterasking the Department of Homeland Security (DHS) to audit the H-2B program in an effort to build support to expand the program (by exempting returning workers from the 66,000 a year cap). Republican-sponsored legislation to do just that—exempt returning H-2B workers from the annual cap—was introduced in the House this month, with two Democratic co-sponsors.
Does the United States need to expand its modern-day Bracero programs?
Changing and loosening the rules in work visa programs could lead to a quick doubling of the number of low-wage guestworkers in the United States. Is one million low-paid, exploitable, indentured workers—who have no path to lawful permanent residence and citizenship—what the U.S. economy needs? César Chávez would say, “No!” Migrants who come to the United States and contribute to the economy should be afforded civil, human, and labor rights, and a chance to become American.
Furthermore, the number of jobs for workers with a high school degree or less has not yet recovered to the pre-recession levels of late 2007, and wages for less-educated workers have stagnated. In other words, labor market indicators do not suggest the United States needs more low-wage guestworkers. Then why are employers and Congress fixated on this? Changing the low-wage labor market in this manner deserves a fully informed public debate and Congress should be held accountable. Any expansion of low-wage guestworker programs should not occur through deregulation at the federal agency level or via must-pass omnibus appropriations legislation, as has occurred time and time again over the last decade.
This article was originally posted at EPI.org on March 31, 2017. Reprinted with permission.
Daniel Costa has been director of immigration law and policy research since 2013, having joined EPI in 2010 as an immigration policy analyst. An attorney, his current areas of research include a wide range of labor migration issues, including the management of temporary foreign worker programs, both high- and less-skilled migration, immigrant workers’ rights, and forced migration, including refugee and asylum issues and the global migration crisis.
Thursday, March 30th, 2017
The U.S. women’s national hockey team has triumphed before the world championships even begin. The women had said they would not play in those world championships—after winning the event six of the last eight times it was played—unless USA Hockey stepped up its support of women in the sport and moved toward fair pay. Now, team members and USA Hockey have announced a deal just in time for the championships:
USA Hockey, the sport’s American federation, and the U.S. women’s team announced in a joint press release that they had reached an agreement “that will result in groundbreaking support for the U.S. Women’s National Team program over the course of the next four years.” […]
The two sides agreed to keep financial terms of the deal private. But the deal includes the formation of a new advisory group made up of current and former players that will “assist USA Hockey in efforts to advance girls’ and women’s hockey,” the release said.
“Our sport is the big winner today,” said Meghan Duggan, the team’s captain. “We stood up for what we thought was right and USA Hockey’s leadership listened. In the end, both sides came together.”
USA Hockey had gone looking for scabs, but women’s hockey players across the country had refused to bite, and NHL players were reportedly ready to stand with the women.
This article originally appeared at DailyKOS.com on March 29, 2017. Reprinted with permission.
Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.
Wednesday, March 29th, 2017
An executive order President Trump signed Monday rescinded an executive order President Obama implemented that would have required companies that contract with the federal government to provide documentation about their compliance with various federal laws. Some have argued that this will make it harder to enforce the LGBT protections President Obama implemented for employees of federal contractors—as well as many other protections those workers enjoyed.
Trump rescinded the Fair Pay and Safe Workplaces order, also known as Executive Order 13673, that President Obama issued in 2014. That order required companies wishing to contract with the federal government to show that they’ve complied with various federal laws and other executive orders. Notably, Obama issued that order in tandem with Executive Order 13672, which prohibited contractors from discriminating on the basis of sexual orientation or gender identity.
Executive Order 13673 was enjoined by a federal judge in Texas back in October, but had it been implemented, it would have improved accountability for businesses that contract with the federal government. Enforcement of 13672, the LGBT protections, does not require this order, but would have been stronger with it. Whatever its fate in court may have been, it’s now gone forever.
LGBT people are particularly vulnerable to discrimination, even with 13672 still in place. Obama’s LGBT executive order amended previous presidential orders that also protected the employees of contractors on the basis of race, color, religion, sex, national origin, disability, and age, but all of those other categories are also afforded protection under various federal laws (the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act). Sexual orientation and gender identity are the only identity categories without explicit nondiscrimination protections under federal law, and fewer than half the states offer LGBT protections at the state level. That means Obama’s executive order is the only legal force protecting over a million workers.
Camilla Taylor, senior counsel at Lambda Legal, was the first to raise concerns that this change would impact the LGBT community. As she explained to Keen News Service, “It’s sending a message to these companies…that the federal government simply doesn’t care whether or not they violate the law.”
National Center for Lesbian Rights Executive Director Kate Kendell also said in a statement, “President Trump’s quiet take-down yesterday of federal safeguards against employment discrimination for millions of LGBT Americans is yet another example of why our elected officials, advocates, and our community must remain vigilant and continue working together to stop this administration’s regressive and harmful policies.”
When a draft of a “religious freedom” executive order that would have licensed discrimination against LGBT people was circulating, the White House tried to stir up some positive press by promising that it would “leave in place” Obama’s 2014 order protecting LGBT workers.
“President Trump continues to be respectful and supportive of LGBTQ rights,” the statement read. The New York Times’ Jeremy Peters fell over himself to praise the statement for using “stronger language than any Republican president has before in favor of equal legal protections for gay lesbian, bisexual, and transgender people.”
It’s not a surprise, however, that Trump is walking back other executive orders that weaken the LGBT protections. Trump promised to undo all of Obama’s executive orders.
That “religious freedom” executive order hasn’t gone away either. A month after the draft leaked and the White House assured LGBT people it wasn’t signing it at that time, White House Press Secretary Sean Spicer told The Heritage Foundation’s Daily Signal that it was still coming. “I think we’ve discussed executive orders in the past, and for the most part we’re not going to get into discussing what may or may not come until we’re ready to announce it,” he said at the time. “So I’m sure as we move forward we’ll have something.”
This article was originally posted at Thinkprogress.org on March 29, 2017. 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.
Wednesday, March 29th, 2017
Who could be against fair pay and safe workplaces? Give you one guess.
President Trump just signed a bill, passed by the Republicans in the House and Senate, that repealed President Obama’s Fair Pay and Safe Workplaces executive order.
“Fair pay and safe workplaces” says it all. The rule stated that our government should contract with companies that have “a satisfactory record of integrity and business ethics.”
It required companies to report if the had violations of workplace laws covering wage theft, discrimination and safety, when applying for new government contracts of $500,000 to $1 million. The federal procurement officers would take that into consideration, and work with the companies to remedy the problems.
That is what President Trump and the Republicans repealed. This Trump/Republican government does not care if companies that have “a satisfactory record of integrity and business ethics.” In fact, repealing this rule signals to companies that it is OK to “save money” by stealing pay from employees, violating their civil rights and threatening their safety.
This rule was a big deal, because companies that get federal contracts employ one in five American workers.
This is the Republicans, not just Trump. This is who they are.
But, of course, the “working class” voters who helped elect Trump and the Republicans all voted for this, right? They all clearly understood that electing Republicans meant that their pay and civil rights and job-safety were going to be rolled back so that the giant corporations could pass ever-higher profits to their “investors.” Right?
Of course they did. And they understood that the things our government does to make our lives better would be rolled back so that investor class could get huge tax cuts. Right? Of course they did.
But wait, there’s more.
The Occupational Health and Safety Administration’s (OSHA) “recordkeeping rule” is also under the gun. This rule requires employers with more than 10 workers to keep records of safety incidents for five years. The Republicans in the Senate voted last week to gut that rule, too.
UAW President Dennis Williams called it “a slap to the face of American workers” and urged Trump to veto it. Williams said if employers can legally dispose of incident records after six months, “it will be extremely difficult to identify and fix hazards and incident patterns that cause illnesses, severe injuries, or even deaths on the job.”
“It will now cross the desk of President Donald Trump, who is expected to sign it.”
But this is only right, because this is clearly what the country voted for. Right?
This post originally appeared on ourfuture.org on March 28, 2017. 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.
Tuesday, March 28th, 2017
Atlantic City, New Jersey, may be the gambling capital of the East Coast, but there are certain things that shouldn’t be left up to chance, namely public safety. However, bureaucrats in charge of the state takeover of Atlantic City are now ready to impose drastic budget cuts that will result in 50% fewer firefighters and the smallest police force since 1971.
The New Jersey State AFL-CIO has joined with various labor and community allies to oppose these cuts that threaten safety and also undermine the economic recovery of Atlantic City. This community-based coalition has launched a campaign called “Don’t Gamble on Safety AC” that seeks to raise awareness of the impact of budget cuts.
During the campaign launch last week, one of the most salient voices was that of Officer Joshlee Vadell, who was shot in the head while heroically intervening in an armed robbery last year. Under the plan proposed by the state of New Jersey, disability payments for officers like Vadell could be cut, and the officers who rushed to save his life would face layoffs.
Watch Officer Vadell’s press conference speech, and be sure to check out highlights from the event.
Without ensuring safety, residents, businesses, visitors and workers are all put at risk. The New Jersey State AFL-CIO will stand with our brothers and sisters and the Atlantic City community to ensure that this fundamental community need is met.
The campaign will include billboards, direct mail, online advertising and multiple grassroots activities, including leafleting on the boardwalk and door-to-door canvassing to inform residents. For more information on the campaign, visit DontGambleOnSafetyAC.com.
This blog originally appeared in aflcio.org on March 28, 2017. Reprinted with permission.
Monday, March 27th, 2017
A lot of companies are working on self-driving cars, hoping they’ll reshape a range of industries. That could provide benefits on some fronts, including the environment and road safety, but a lot of people work as drivers, so self-driving cars could have a massive impact on the jobs landscape. The Center for Global Policy Solutions has a report on autonomous vehicles, driving jobs, and the future of work, laying out the likely employment effects of such a shift and offering policy suggestions to protect workers during that transition.
“More than four million jobs will likely be lost with a rapid transition to autonomous vehicles,” according to the report. And that will hit some demographic groups particularly hard, starting with people with less than a bachelor’s degree.
Men would be hardest hit. They number about 6.5 times the share of the working female population in driving occupations and earn 64 percent more than women in these jobs. Although nearly as many women as men are bus drivers, men are the vast majority of those employed as delivery and heavy truck drivers and as taxi drivers and chauffeurs.
Whites hold 62 percent of the 4.1 million jobs in driving occupations, so they would experience the largest hit. However, Blacks, Hispanics, and Native Americans, groups who are overrepresented in these occupations and who earn a “driving premium”—a median annual wage exceeding what they would receive in non-driving occupations—would also be hard hit.
- With 4.23 percent of Black workers employed in driving occupations, Blacks rely on driving jobs more than other racial/ethnic groups. This is true in every driving occupation category.
- With 3.25 percent of Hispanic workers in driving occupations, Hispanics have the second heaviest reliance and are especially overrepresented as delivery drivers and heavy truck drivers and very slightly as taxi drivers and chauffeurs.
But if self-driving cars are going to happen—and are going to have some benefits—how do you prevent disaster for these millions of workers whose jobs disappear? The report suggests automatic unemployment insurance and Medicaid eligibility, a progressive basic income, education and retraining, and expanded support for entrepreneurs.
This article originally appeared at DailyKOS.com on March 25, 2017. Reprinted with permission.
Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.
Thursday, March 23rd, 2017
Data in the newly released 2016 Disability Statistics Compendium are highlighting a pernicious, and complex, disparity for the disability community: unemployment. In 2015, less than 35 percent of disabled Americans between 18-64 living in the community were employed, in contrast with some 76 percent of their non-disabled counterparts.
This is not just a disparity of disabled and non-disabled, though, but also one determined by state of residence. In Wyoming, for example, nearly 60 percent of disabled people are employed, while at the other end of the spectrum, in West Virginia, the disability employment rate is around 25 percent.
Understanding why employment outcomes for disabled people are so widely variable is important because such knowledge may contribute to a fresh approach to getting disabled people who are ready and willing to work into fulfilling jobs.
Officials from South Dakota Advocacy Services (SDAS), an agency charged with disability advocacy, shed some light on the subject. Their state has a disability employment rate of slightly more than 50 percent, an accomplishment they’re proud of. While the path to getting to that number takes work, officials argue, it’s achievable.
“South Dakota has a lot of things other states could look to,” says Tim Neyhart, executive director at SDAS.
Officials’ work starts at the high school level. As disabled students get closer to graduation, community agencies start working with them to prepare them for the workforce to ensure they don’t fall through the cracks as they move into adulthood.
Cole Uecker, also of SDAS, explains that the goal is “integrated competitive employment,” with disabled people entering the job market alongside their non-disabled peers, instead of being shunted to sheltered workshops. Under the sheltered workshop model, disabled people are segregated in facilities where they complete basic, repetitive tasks for low pay—often subminimum wage—and don’t achieve autonomy and independence.
Disabled students in South Dakota are paired with rehabilitation specialists who help them acquire job skills and learn about the programs and services available to them. To address the “benefits trap” that keeps disabled people unemployed because they fear losing services, the state offers Medical Assistance for Workers with Disabilities, a Medicaid buy-in program that allows them to retain benefits while working.
Elsewhere in the country, some areas use job programs like Project SEARCH, which originated at Cincinnati Children’s Hospital Medical Center in 1996 when a nurse—frustrated with high turnover among hospital support staff—got the idea of bringing in disabled people, providing them with vocational rehabilitation at the hospital and encouraging them to enter the workforce. The formalized program now has some 3,000 graduates per year, says Maryellen Daston, a program specialist, and a very high success rate, with participants in Project SEARCH finding employment after the program at a rate of 77 percent in 2015.
Neyhart and Daston echo each other when they talk about getting disabled people into the workforce. Both assume that disabled people are capable of work and want to be part of the community. Both prioritize integrated competitive employment and early intervention to identify needs before people leave school.
But lots of states have similar goals and programs, so why are some states having such radically better outcomes than others?
One answer lies in demographics. South Dakota, for example, is not a highly populous state, which makes the personalized, thoughtful intervention needed for successful employment programs functionally possible. Moreover, just 12.5 percent of the state’s residents identify as disabled in the American Community Survey. By comparison, nearly 20 percent of residents in West Virginia identify as disabled. Neyhart also acknowledges that South Dakota has a low unemployment rate overall.
States with higher disability unemployment rates often have a larger disabled population. They also tend to be more populous overall, in addition to more racially diverse. Administering effective support programs may be more challenging with heavier demands on state resources—especially in states struggling with poverty, like much of the South, where disability employment rates are low.
Programs that enable a smooth transition from school to the workplace have documented results, as does allowing people to enter the workplace while retaining critically important healthcare benefits. This may be a challenge of scale, which could be a good thing, because that means it’s a problem with the potential to be solved.
“In order to improve, you always have to be looking at areas in which the numbers aren’t as good,” notes Neyhart.
This blog originally appeared at inthesetimes.com on March 21, 2017. Reprinted with permission.
S.E. Smith is an essayist, journalist and activist is on social issues who has written for The Guardian, Bitch Magazine, AlterNet, Jezebel, Salon, the Sundance Channel blog, Longshot Magazine, Global Comment, Think Progress, xoJane, Truthout, Time, Nerve, VICE, The Week, and Reproductive Health Reality Check. Follow @sesmithwrites.
Tuesday, March 21st, 2017
Ahead of Wednesday’s confirmation hearing for Alexander Acosta as Secretary of Labor, workers and workers’ advocates have been vocal about their concerns with his appointment. Workplace Fairness, the Leadership Conference on Civil and Human Rights, and Senator Elizabeth Warren, among others, are seeking assurances from Mr. Acosta about how he intends to protect workers and carry out the mission of the Department of Labor.
While we haven’t seen the level of outrage with the Acosta nomination that we saw with former nominee Andrew Puzder, Mr. Acosta still has a lot to answer for, and his relative lack of a record on workers’ rights issues is cause for concern. Will he protect against political influence and work to uphold the Department’s mission to promote worker welfare and assure workers’ benefits and rights? Or will he toe the line of the Trump administration, fail to aggressively pursue investigations and litigation, and leave American workers out in the cold?
Earlier this month, Workplace Fairness sent a position statement to the Senate HELP committee in charge of the confirmation hearing. Workplace Fairness focuses generally on advocating for workers’ rights, and more specifically on ensuring that America workers have access to comprehensive, easy to understand, information about their legal rights and remedies in the workplace. Workplace Fairness made clear that in light of recent issues with information going missing from government websites, Mr. Acosta should commit to ensuring that DOL continually provides transparency about his intentions going forward, and provides comprehensive information to the public about our rights in the workplace and how to enforce them.
Another issue sparking a call for assurances from Acosta is the potential for politicized hiring at the Department of Labor. The Trump administration is actively promoting an anti-worker agenda, from appointing a cabinet full of millionaires, to cutting the budget for programs that help workers, and working to repeal the Affordable Care Act which will dramatically impact all workers’ health benefits, even those insured through their employers. It is vital that the Secretary of Labor guard against politicized hiring that would turn the Department into an ally of the current administration rather than an agency committed to protecting workers. Acosta will most certainly have to answer questions about the 2008 report from the Office of the Inspector General which implicated him in politicized hiring at the Department of Justice when he was an Assistant Attorney General. The report found that he failed to properly supervise his deputy assistant who was clearly engaged in politicized hiring, in violation of civil service laws. He will need to explain to the HELP Committee how he intends to ensure that this type of hiring doesn’t happen at the Department of Labor. The Leadership Conference on Civil and Human Right recently issued a statement (joined by Workplace Fairness and 86 other organizations) specifically asking how Acosta would prevent political interference with the Office of Federal Contract Compliance, the Wage and Hour Division, and the Bureau of Labor Statistics as they carry out their missions to enforce rules and laws like the Fair Labor Standards Act and the Overtime Rule, and report vital statistics and information to the American public.
Senator Elizabeth Warren also raised grave concerns about a variety of issues, including politicized hiring and budget cuts at the DOL in her 23-page letter to Acosta, asking him to respond by March 27. Senator Warren asks Acosta to detail how he intends to continue the work of investigating and litigating labor law violations under Trump’s proposed 21% cut to the DOL budget. She says
“I am also concerned about how you will respond to President Trump’s plan to cut more than 20% of DOL’s budget-the third biggest cut to any agency after the State Department and the Environmental Protection Agency…These draconian cuts will hobble your ability to run core parts of the agency, including the divisions that investigate and enforce the federal health and safety standards that keep workers safe on the job and the federal wage and hour laws that ensure that workers are paid fairly.”
The cut would bring the DOL budget to its lowest level since the 1970’s, according to the New York Times.
It is expected that Acosta will be confirmed, as confirmation only requires a simple majority vote, and the Republicans have 52 seats in the Senate. Democrats and workers’ rights advocates hope to use this confirmation hearing as an opportunity to get some important assurances and commitments from Acosta on the record.
Many workers’ rights groups and other organizations, like the Economic Policy Institute, with its Perkins Project, are poised to pay close attention to what the Department does in the coming years, and to hold the Secretary of Labor accountable for the promises he makes. And as always, Workplace Fairness will continue to maintain free, up-to-date, comprehensive, easy to read information for the public about what their rights are in the workplace, and how to enforce them. These efforts will become even more critical in the days ahead as government agencies are forced to eliminate staff positions and enforcement activities, and potentially lessen their commitment to protecting the rights of workers.
SHANNON RUSZ has been associated with Workplace Fairness since 2009. Since 2014 she has worked as Content Manager for Workplacefairness.org, and most recently has taken on the role of Acting Executive Director of Workplace Fairness. Shannon is an attorney practicing in the Annapolis, Maryland area. She received her undergraduate degree from Virginia Commonwealth University and her Law degree from The George Washington University Law School.
Tuesday, March 21st, 2017
Last week, lawmakers laid the groundwork for a battle over consumer rights and forced arbitration that likely will play out through the spring.
First, congressional Democrats introduced several bills to restore consumers’ right to hold corporations accountable in court for wrongdoing. Led by U.S. Sen. Al Franken (D-Minn.), lawmakers on March 7 introduced a slate of bills aimed at ending the use of forced arbitration in various sectors. Forced arbitration provisions, also known as “ripoff clauses,” block consumers from challenging illegal corporate behavior.
Lawmakers were joined at a packed press conference by people who had been harmed by forced arbitration: a veteran illegally fired from his job while serving in the military and blocked from suing his employer; a victim of Wells Fargo fraud whose class action was kicked out of court; and former news anchor Gretchen Carlson, barred from speaking out about sexual harassment she had suffered at Fox News.
Among the bills introduced were Franken’s Arbitration Fairness Act, which would prohibit forced arbitration in consumer, employment, civil rights, and antitrust cases and Sen. Sherrod Brown’s (D-Ohio) Justice for Victims of Fraud Act, which would close the “Wells Fargo loophole” by restoring consumers’ right to sue when banks open fraudulent accounts without their knowledge.
However, in stark contrast to this push to strengthen rights and restore corporate accountability, GOP lawmakers began pressing to make it harder for consumers to band together when harmed and take corporations to court.
Two days after the Franken press conference, the House passed H.R. 985, the so-called “Fairness in Class Action Litigation Act” would effectively kill class actions by imposing insurmountable requirements to file group lawsuits. This would make it nearly impossible for consumers to hold corporations accountable for illegal and abusive behavior.
Among other onerous provisions, H.R. 985 would require that each harmed person suffer the “same type and scope of injury.” Under this absurd standard, a Wells Fargo customer with two fake accounts opened in his or her name could be barred from joining together with customers who had three fraudulent accounts. The bill also would build in costly and unnecessary delays and appeals, limit plaintiffs’ choice of counsel, and drastically restrict attorneys’ fees.
Joining together in a class action often is the only chance real people have to fight back against widespread harm, including corporate fraud and scams – particularly when claims involve small amounts of money, where it would be too costly for an individual to pursue a separate claim. Class actions have also been critical vehicles for overcoming race- and gender-based discrimination and have been instrumental in achieving victories as momentous as desegregation of our schools, as was the case in Brown v. Board of Education.
Beyond protecting the rights of the disadvantaged, class actions act as a crucial check on corporate misbehavior by returning money to harmed consumers and workers. Removing the threat of class liability would encourage systemic fraud, as banks and lenders that pad their bottom lines by committing fraud would have a competitive advantage in the marketplace.
In the financial sector, the proposed CFPB arbitration rule is a major target of financial industry lobbyists precisely because it would restore the right of consumers to join class action lawsuits. According to the CFPB’s arbitration study, class actions returned $2.2 billion in cash relief to 34 million consumers from 2008-2012, not including attorneys’ fees and litigation costs. While the CFPB rule is expected to be finalized this spring, it would be rendered largely ineffective should H.R. 985 become law.
You can watch our video against H.R. 985 here and follow developments on Twitter using the hashtag, #RipoffClause.
This article originally appeared at FairArbitrationNow.org on March 17, 2017. Reprinted with permission.
Amanda Werner is Arbitration Campaign Manager with Public Citizen and Americans for Financial Reform, where her work focuses on the Consumer Financial Protection Bureau (CFPB)’s arbitration rulemaking. She represents a broad coalition of consumer, civil rights, labor, and community groups as part of a robust public campaign in support of a strong final rule against the #RipoffClause.
Monday, March 20th, 2017
Asking female applicants whether they were married and planned to have children in a job interview. Telling female employees how to dress (and show more skin). Overtly and concretely penalizing female employees for taking maternity leave. Promoting low-performing men over the highest-performing women. Asking women employees to have sex with their boss to advance their careers. Penalizing female employees for not taking part in alcohol-fueled corporate partying when they were pregnant or breastfeeding. Bragging about how many female subordinates a male executive had had sex with.
This sounds like the bad old days but, unfortunately, it isn’t. Just a few years ago, current and former female sales representatives at a medical cosmetics company, Medicis Pharmaceutical (now owned by Valeant Pharmaceuticals), banded together to bring a class action against their employer for regularly doing all of these things, and more, including unequal pay and retaliation for reporting discrimination and harassment. Each of the approximately one hundred women in the class who filed claims received an average of $44,000 in back pay and damages, and the attorney’s fees were not taken out of that compensation. That’s not small change.
But there’s more. In theory, an individual woman could have brought the case and gotten back pay and damages. What an individual woman could almost certainly not have done was force Medicis to change its practices – Medicis could have paid her money and washed its hands. Here, though, the class was able to use its leverage to get Medicis to agree to, among other things, create anti-discrimination policies and training; establish systems for investigating reports of discrimination and harassment; be transparent about how it set and measured sales goals; eliminate penalties for taking parental leave; and establish policies about alcohol at corporate events and intra-office romantic and sexual relationships. In other words, it took a class action to ensure that Medicis follows the law not just with regard to the women who sued, but with regard to all the women who come after.
In the minefield of workplace discrimination and harassment, there’s another advantage to class actions, too. One woman bringing these types of claims may (unfortunately and wrongly) be easily dismissed as too sensitive, as not qualified for the promotion she sought, or as subject to one-off comments from a single troublesome executive. She may also be retaliated against for speaking out – as many of the women in this suit were. But where woman after woman after woman tells the same story, she cannot be so easily dismissed.
And yet Congress is on the verge of wiping away the ability for women to band together and challenge such discrimination and harassment in the workplace. Last week, the House GOP narrowly approved the so-called “Fairness in Class Action Litigation Act.” The bill would drastically roll back the ability to bring class action lawsuits like the one against Medicis. Fourteen Republicans opposed the bill, along with every single Democrat in the House, but that wasn’t enough to defeat it. After being pushed through the House Judiciary Committee – without a hearing, and with a nighttime vote – the bill now makes its way to the Senate, where a record 21 female Senators will be among those deciding its ultimate fate. While the Senate has not yet scheduled any action on the issue, civil rights groups and their allies are mobilizing to ensure the House proposal never becomes law.
There are a lot of big, important and downright frightening ideas making the rounds on Capitol Hill these days, from taking away Americans’ health insurance to eliminating Meals on Wheels and turning the Environmental Protection Agency over to oil and gas lobbyists. But it’s imperative that voters insist their Senators give proper attention to this all-out assault on the courts. Unless they do so, a key tool in battling discrimination could quickly disappear. That threat is too real, too serious and has too many dire consequences for too many Americans for Senators to do anything other than give it the deliberative attention – and debate – that it deserves.
This article originally appeared at DailyKOS.com on March 19, 2017. 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.
Leah Nicholls joined Public Justice’s D.C. office in September 2012 as the Kazan-Budd Attorney. She was previously senior staff attorney for civil rights and general public interest at the Georgetown University Law Center’s Institute for Public Representation. Leah had also been a teaching fellow and adjunct law professor at the Law Center.