Outten & Golden: Empowering Employees in the Workplace

Archive for December, 2017

What #MeToo Can Teach the Labor Movement

Friday, December 29th, 2017

My first #MeToo memory is from the kitchen of the Red Eagle Diner on Route 59 in Rockland County, N.Y. I was 16 years old, had moved out of my home, and was financially on my own. The senior waitresses in this classic Greek-owned diner schooled me fast. They explained that my best route to maximum cash was the weekend graveyard shift. “People are hungry and drunk after the bars close, and the tips are great,” one said.

That first waitressing job would be short-lived, because I didn’t heed a crucial warning. Watch out for Christos, a hot-headed cook and relative of the owner. The night I physically rebuffed his obnoxious and forceful groping, it took all the busboys holding him back as he waved a cleaver at me, red-faced and screaming in Greek that he was going to kill me. The other waitress held the door open as I fled to my car and sped off without even getting my last paycheck. I was trembling.

Although there were plenty of other incidents in between, the next time I found myself that shaken by a sexual assault threat, I was 33 and in a Manhattan cab with a high-up official in the national AFL-CIO. He had structural power over me, as well as my paycheck and the campaign I was running. He was nearly twice my age and size. After offering to give me a lift in the cab so I could avoid the pelting rain walking to the subway, he quickly slid all the way over to my side, pinned me to the door, grabbed me with both arms and began forcibly kissing me on the lips. After a determined push, and before getting the driver to stop and let me out, I told the AFL-CIO official that if he ever did it again I’d call his wife in a nanosecond.

These two examples underscore that behind today’s harassment headlines is a deeper crisis: pernicious sexism, misogyny and contempt for women. Whether in in our movement or not, serious sexual harassment isn’t really about sex. It’s about a disregard for women, and it shows itself numerous ways.

For the #MeToo moment to become a meaningful movement, it has to focus on actual gender equality. Lewd stories about this or that man’s behavior might make compelling reading, but they sidetrack the real crisis—and they are being easily manipulated to distract us from the solutions women desperately need. Until we effectively challenge the ideological underpinnings beneath social policies that hem women in at every turn in this country, we won’t get at the root cause of the harassment. This requires examining the total devaluation of “women’s work,” including raising and educating children, running a home and caring for the elderly and the sick.

It’s time to dust off the documents from the nearly 50-year-old Wages for Housework Campaign. The union movement must step in now and connect the dots to real solutions, such as income supports like universal high-quality childcare, free healthcare, free university and paid maternity and paternity leave. We need social policies that allow women to be meaningful participants in the labor force—more of a norm in Western Europe where unionization rates are high.

Sexist thought is holding our movement back

Sexist male leadership inside the labor movement is a barrier to getting at these very solutions This assertion is sure to generate a round of, “She shouldn’t write that, the bosses will use it against us.” Let’s clear that bullshit out of the way: We aren’t losing unionization elections, strikes and union density because of truth-telling about some men in leadership who should be forced to spend out their years cleaning toilets in a shelter for battered women. And besides, we all know the bosses are far, far worse—and have structural power over tens of millions of women in the United States and beyond.

Some of the sexual harassers who see women as their playthings are men on “our side” with decision-making roles in unions. This mindset rejects real organizing, instead embracing shallow mobilizing and advocacy. It rejects the possibility that a future labor movement led by women in the service economy can be as powerful as the one led by men in the last century who could shut down machines. Factories, where material goods are produced by blue collar men are fetishized. Yet, today’s factories—the schools, universities, nursing homes and hospitals where large numbers of workers regularly toil side by side—are disregarded, even though they are the key to most local economies. Educators and healthcare workers who build, develop and repair humans’ minds and bodies are considered white and pink collar. This workforce is deemed less valuable to the labor movement, because the labor it performs is considered women’s work.

While presenting on big healthcare campaign wins at conferences, I’ve had men who identify as leftists repeatedly drill me with skeptical questions such as, “We thought all nurses saw themselves as professionals; you’re saying they can have class solidarity?” I wonder if these leftists missed which workers got behind the Bernie Sanders campaign first and most aggressively. I’ve hardly ever met a nurse who didn’t believe healthcare is a right that everyone deserves, regardless of ability to pay.

When I began negotiating hospital-worker contracts, which often included the nurses, I routinely had men in the movement say things like, “It’s great you love working with nurses. They are such a pain in the ass at the bargaining table.” These derogatory comments came from men who can’t stand empowered women who actually might have an opinion, let alone good ideas, about what’s in the final contract settlement. Many hold a related but distinct assumption: that the so-called private sector is more manly—and therefore, important—than the so-called public sector, which is majority-women. This belief also contributes to the devaluation of feminized labor.

Capitalism is one economic system, period. The fiction of these seemingly distinct sectors is primarily a strategy to allow corporations to feed off the trough of tax-payer money and pretend they don’t. This master lie enables austerity, which is turning into a tsunami post-tax bill. And yet white, male, highly educated labor strategists routinely say that we need totally different strategies for the public and private sectors. Hogwash.

This deeply inculcated sexist thought—conscious or not—is holding back our movement and contributing to the absurd notion that unions are a thing of the past. These themes are discussed in my book No Shortcuts, Organizing for Power in the New Gilded Age (Oxford, 2016).

The union movement has increased the number of women and people of color in publicly visible leadership positions. But the labor movement’s research and strategy backrooms are still dominated by white men who propagate the idea that organizing once worked, yet not anymore. This assertion is presented as fact rather than what it is: a structuralist argument. The erosion of labor law, relocation of factories to regions with few or no unions, and automation are the common reasons put forth. The argument omits the devastating failure of business unionism, and its successor—the mobilizing approach, where decision-making is left in the hands of mostly white male strategists while telegenic women of color with “good stories” are trotted out as props by communications staffers.

If you think these men are smarter than the millions of women of color who dominate today’s workforce, then an organizing approach—which rests the agency for change in the hands of women—is definitely not your preferred choice. Mobilizing, or worse, advocacy, obscures the core question of agency: Whose is central to the strategy war room and future movement? As for loud liberal voices—union and nonunion—that declare unions as a thing of the past, the forthcoming SCOTUS ruling on NLRB v Murphy Oil will prove most of the nonunion “innovations” moot. Murphy Oil is a complicated legal case that boils down to removing what are called the Section 7 protections under the National Labor Relations Act, and preventing class action lawsuits.

Murphy Oil blows a hole through the legal safeguards that non-union workers have enjoyed for decades, eviscerating much of the tactical repertoire of so-called Alt Labor, such as class-action wage-theft cases, and workers participating in protests called by nonunion community groups in front of their workplaces. The timing is horrific and uncanny: As women are finally finding their voices about sexual harassment at work, mostly in nonunion workplaces (as the majority are), Murphy Oil will prevent class action sexual harassment lawsuits.

Unions can’t win without reckoning with sexism and racism

The central lesson the labor movement should take from the #MeToo movement is that now is the time to reverse the deeply held notion that women, especially women of color, can’t build a powerful labor movement. Corporate America and the rightwing are out to destroy unions, in part, so that they can decimate the few public services that do serve working-class families, including the Children’s Health Insurance Program (CHIP), Medicaid, Medicare, Social Security and public schools. Movements won these programs when unions were much stronger. It makes sense that unions, and the women’s movement, should throw down hardest to defend and grow these sectors, largely made up of women, mostly women of color, who are brilliant strategists and fighters.

The labor movement should also dispense of the belief that organizing and strikes can’t work. It’s self-defeating. Unions led by Chicago teachers and Philadelphia and Boston nurses, to name a few, prove this notion wrong. The growing economic sectors of education and healthcare are key. These workers have structural power and extraordinary social power. Each worker can bring along hundreds more in their communities.

Another key lesson for labor is to start taking smart risks, such as challenging the inept leadership in the Democratic Party by running its own pro-union rank-and-file sisters in primaries against the pro-corporate Democrats in safe Democratic seats, a target-rich environment. As obvious as it might sound, this strategy is heresy in the labor movement. Women who marched last January should demand that gender-focused political action committees, such as EMILY’s list, use support for unionization as a litmus test for whether politicians running for office will get their support. No more faux feminist Sheryl Sandberg types.

It’s time for unions to raise expectations for real gender equality, to channel the new battle cry to rid ourselves of today’s sexual harassers into a movement for the gender justice that women in Scandinavian countries and much of Western Europe enjoy. To think of winning what has become almost normal gains in many countries—year-long paid maternity and paternity leave, free childcare, healthcare and universities, six weeks’ annual paid vacation—is not pie-in-the-sky. To fight for it, people have to be able to imagine it.

The percentage of workers covered by union-negotiated collective agreements in much of Western Europe, the countries with benefits women in this country desperately need, is between 80 percent and 98 percent of all workers. This compares to a paltry 11.9 percent in the United States, as of 2013. This is far beyond a phased-in raise to $15 and hour—still basically poverty, and a wage that most women with structural power in strategic sectors already earn.

Women can’t win without building workplace power

There’s enough wealth in this country to allow the rich to be rich and still eradicate most barriers to a genuine women’s liberation, which starts with economic justice in the workplace. Upper-class mostly white women drowned out working-class women, many of color, in the 1960s and 1970s. The results of second-wave feminism are clear: Even though some women broke corporate and political glass ceilings and won a few favorable laws, individual rights will not truly empower women. Unions—warts and all—are central to a more equal society, because they bring structural power and collective solutions to problems that are fundamentally societal, not individual.

Women in the United States are stuck with bosses who abuse them, because to walk out could mean living in their cars or on the streets—or taking two fulltime jobs and never spending a minute with their kids. Similarly, women are stuck in abusive marriages, because the decision to stop the beating means living on the streets. European women from countries where union contracts cover the vast majority of workers don’t, to the same extent, face the decision of losing their husband’s healthcare plan, or not having money to pay for childcare or so many of the challenges faced by women here. This country is seriously broken, and to fix it we must build the kind of power that comes with high unionization rates, which translate into political—not just economic—power.

Naming and shaming is not sufficient. Women need to translate the passion of this moment into winning the solution that will help end workplace harassment. A good union radically changes workplace culture for the better. The entire concept of a human resources office changes when a union is present. For example, when entering the human resources office, women aren’t alone: They’ve got their union steward. Union contracts effectively allow women to challenge bosses without being fired. Good unions do change workplace culture on these and many issues. Why else would the men who control corporations, and now the federal and most state governments, spend lavishly on professional union busters and fight so damn hard to destroy unions?

It’s going to take a massive expansion of unions again—like what happened in the 1930s, the last time unions were declared dead—before we can translate #MeToo into a demand that raises all workers’ expectations that this country can be a far more equal society. If we commit to this goal, we can achieve it. This time, the people leading the unions will be the same people who saved the nation from Roy Moore, because women of color are already at the center of the future labor force.

I went from sexual harassment in male-heavy restaurant kitchens to sexual harassment as a rare woman allowed into the kitchen cabinet of many successful campaigns. Whether it is union leaders ignoring the experience and genius of workers in today’s strategic employment sectors of education and healthcare, politicians following the corporate line or individual bad bosses harassing their employees, all of it comes down to a disrespect and disregard for women, especially women of color. If we focus on the power analysis, the answer is staring us in the face. There is no time to waste. Everyone has to be all-in for rebuilding unions.

This article was originally published at In These Times on December 27, 2017. Reprinted with permission.
Jane McAlevey is an organizer, author and scholar. Her first book, Raising Expectations (and Raising Hell), published by Verso Press, was named the “most valuable book of 2012” by The Nation Magazine. Her second book, No Shortcuts: Organizing for Power in the New Gilded Age, published by Oxford University Press, was released late in 2016. She is a regular commentator on radio and TV. She continues to work as an organizer on union campaigns, lead contract negotiations, and train and develop organizers. She spent the past two years as a Post Doc at the Harvard Law School, and is presently writing her third book—Striking Back—about organizing, power and strategy, forthcoming from Verso.

2017 was a year of eroding workers’ rights

Thursday, December 28th, 2017

There have been a series of victories for labor rights in recent years. Graduate student workers at private colleges and universities now have the right to unionize. In New York, employers are no longer allowed to ask for an employee’s salary history — a question that often hurts women and people of color. And the Fight for 15 has scored wins in cities across the country.

But the Trump administration stands in the way of much of the progress labor activists are demanding. It may not be as noisy or ripe for attention-grabbing headlines as Betsy DeVos’ education department or Scott Pruitt’s Environmental Protection Agency, but Alexander Acosta’s labor department has rolled back a number of key Obama-era labor advances.

“Acosta is not a bomb-thrower,” said Jeffrey Hirsch, law professor at University of North Carolina at Chapel Hill. Unlike some of Trump’s other less traditional choices for agency heads, Acosta had already been confirmed by the Senate for three previous positions and was considered a safe choice for labor department secretary.

Still, it’s clear the department is now under a Republican administration.

The National Labor Relations Board (NLRB), which enforces fair labor practices, has an employer-friendly majority. The General Counsel of the NLRB is Peter Robb, a lawyer who management-focused firm Jackson Lewis wrote would “set the stage for the board to reverse many of the pro-labor rulings issued by the Obama board”. The Senate also confirmed to the NLRB William Emanuel, whose nomination was supported by corporate donors and industry groups like the National Retail Federation, U.S. Chamber of Commerce, and National Restaurant Association. Emanuel’s work previous focused on union avoidance tactics and among his former clients were Amazon, Target, Uber, and FedEx.

With these new additions, the Department of Labor has been busy dismantling protections for workers. Here are some of the biggest ways the Trump administration rolled back workers’ rights in 2017:

Less accountability for corporations like McDonald’s

One of the labor rollbacks that gained the most attention this year was the board’s decision to overturn the new joint employer standard that was supposed to make it easier for corporations to be held accountable for unfair labor practices at their franchises. Labor advocates expected the decision for some time after the department rescinded guidance that defines who a joint-employer is.

The Obama administration’s standard on joint employers went beyond simply looking at who sets wages and hires people, and considered a worker’s “economic dependency” on the business. McDonald’s has tried to avoid responsibility for violations like wage-theft for years. In 2016, McDonald’s settled a wage-theft class action and released a statement that said it “reconfirms that it is not the employer of or responsible for employees of its independent franchisees.”

“Under the previous rule, you only needed to show [McDonald’s] had a theoretical amount of control. They reserve the right to control terms and conditions of work and controlled those conditions in an indirect manner like setting policies that other companies have to follow,” Hirsch explained. “The new case has said that no, you need actual direct control. When push comes to shove, it’s a matter of evidence and how much proof you have, so you may well still have a case against McDonald’s but you’re going to have to show that there is more actual control.”

Reduced protections for quality investment advice

In August, the Labor Department said it would like to delay a rule that would require financial advisors to act in the best interest of their customers and their retirement accounts. According to a federal court filing, the department wanted to delay implementation of the rule to July 2019. The full implementation of the rule is currently set for January 2018.

There are two standards investors have to be aware of right now: the fiduciary standard and suitability standard. A financial adviser operating under what is called the “suitability standard” is only required to make sure a client’s investment is suitable for the client’s finances, age, and risk tolerance at that point in time, but they don’t have a huge legal obligation to monitor the investment for the client. Under the fiduciary standard, an adviser must keep monitoring the investment and keep the customer’s overall financial picture in mind. In addition, advisers must disclose all of their conflicts of interest, fees, and commissions under the fiduciary standard. Right now, it’s easier for advisers to push investments that will make them money but are not necessarily in clients’ best interest, said Paul Secunda, professor of law and director of the labor and employment law program at Marquette University Law School.

“That rule has been substantially cut back, though how far back we’re still waiting to see. The current admin is in a holding pattern right now and my sense is that it could be cut back fairly dramatically even further,” Secunda said.

None of these labor department actions have been good enough for the financial industry, however. Plaintiffs in a lawsuit that included the Securities Industry and Financial Markets Association, the Financial Services Institute, the Financial Services Roundtable and the U.S. Chamber of Commerce, sent a Dec. 8 letter to the U.S. Court of Appeals for the Fifth Circuit. The plaintiffs said the delay of regulation shouldn’t hold up their appeal, where they argue the department does not have the authority to promulgate the rule, according to InvestmentNews.

Reduced worker safety

Experts on labor violations and the Occupational Safety and Health Administration told ThinkProgress they were concerned about how OSHA would respond to Hurricanes Harvey and Irma, especially since the Trump administration has slashed worker safety rules from the Obama administration. 

Trump’s OSHA has left behind regulations on worker exposure to construction noise, combustible dust, and vehicles backing up in factories and construction sites, according to Bloomberg BNA. It also abandoned a rule that would change the way the agency decides on permissible exposure limits for chemicals. The July regulatory agenda did not list any new rule-making. The president’s 2018 budget would have killed OSHA’s Chemical Safety Board, which looks into chemical plant accidents, as well as the Susan Harwood grant program, which benefits nonprofits and unions that provide worker safety training.

“OSHA is taking a turn we usually see during Republican administrations, which means a lot less inspections and enforcement and a lot more trying to get employers to self-regulate or voluntarily comply which has not really worked that well historically,” Secunda said. “People who participate in these voluntary participation programs are usually employers who are already in compliance and those who continue to be bad actors are not really impacted by these voluntary programs. OSHA is about to be run by corporate America, which is obviously not good for employees.”

Deciding to let go of Obama-era overtime rule

In July, the labor department moved to roll back an Obama administration rule that would have expanded the number of workers eligible for overtime pay by 4.2 million. The department has not appealed a U.S. District Court in Texas that gave business groups the temporary injunction they wanted.

The current threshold for overtime pay is at just $23,660 a year, and the Obama-era rule would have nearly doubled that. In 1974, 62 percent of full-time salaried workers had a salary that allowed them to be eligible for overtime, but today, only 7 percent of full-time salaried workers earn a salary below this level, according toDavid Weill, dean of the Heller School for Social Policy and Management at Brandeis University who headed the Wage and Hour Division of the department during the Obama administration.

Referring to Acosta, Weill wrote in U.S. News, “Failure to appeal this flawed decision will leave millions working long hours with low pay and abrogate his responsibility to protect the hardworking people he and the Trump administration profess to care so much about.”

Labor department focus on ‘harmonious workplaces’

In one of the NLRB’s less discussed decisions this month, it overruled the Bush-era standard Lutheran Heritage Village-Livonia. This standard went into further detail on whether facially neutral workplace rules, policies, and handbook provisions could unlawfully interfere with Section 7 of the National Labor Relations Act. (Under Section 7, it’s unlawful for employers to interfere with employees’ organizing rights.) The NLRB provides the example of employers threatening, interrogating, or spying on pro-union employees or promising employees benefits if they stay away from organizing as unlawful activity under Section 7.

Under the 2004 standard, employers could have the violated the National Labor Relations Act by instituting workplace rules that could be “reasonably construed” to prohibit workers from accessing these rights even if the employers don’t explicitly prohibit the activities.

Hirsch said he was surprised by the decision to reverse a Bush-era decision. “To me, it seems like they’re doing more than they needed to, which makes me wonder if they’re trying to make a point.”

Hirsch added that the decision appeared to carve out certain types of rules, such as a civility code in the workplace, and say they were permissible. The decision referred to employers who wanted “harmonious workplaces” and cast any opposition to such a requirement to be impractical, but Hirsch said there needs to be a balance in NLRB decisions between clarity and flexibility.

“That can be problematic bevause they’re rules that depending on the history of what has happened in that particular workplace and it could actually be viewed as fairly chilling for those employees,” Hirsch said. “… Labor and management relations aren’t always harmonious. In fact, they are designed not to be in a  lot of ways. Sometimes harsh language is used by both sides and sometimes that is OK, or we’re willing to tolerate that as part of the collective bargaining process rather than having violent strikes, like we did before the NRLA.”

‘Micro-unions’ are out of luck

The NLRB made another business-friendly decision this month when it decided that a unionized group of 100 welders and “rework specialists” at a manufacturing company with thousands of workers was improper. This means it will be easier for employers to oppose what are referred to as “micro unions” even though it can be advantageous for workers to organize this way. The decision went against eight federal appeals court rulings, according to Reuters.

LGBTQ workers’ not protected by Title VII

There is ongoing debate over whether LGBTQ workers have rights to ensure that they are treated fairly in the workplace under Title VII, part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In July, the Department of Justice undermined rights for LGBTQ people when it filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.

The Trump Labor Board Just Made It Harder for Fast-Food Workers to Hold Corporate Bosses Accountable

Wednesday, December 20th, 2017

On December 14, the National Labor Relations Board (NLRB) overturned a 2015 policy that had made it easier for workers—particularly fast-food workers—to unionize and challenge their employers over unfair labor practices.

The Obama-era standard sprung from a 2013 case involving workers attempting to unionize at a recycling plant in Milpitas, Calif. The recycling company, Browning-Ferris Industries, owned the building but used a small staffing agency called Leadpoint to provide and manage workers. The local Teamsters union was trying to organize the employees, but it didn’t want to merely negotiate with Leadpoint: It wanted Browning-Ferris to be considered a joint employer and party to any labor contract. A regional director determined that Leadpoint was the sole employer, but the Teamsters requested a review, and the NLRB’s general counsel sided with union in a 3-2 vote.

The vote was hailed by unions and labor advocates for making it more difficult for corporations to distance themselves from certain legal violations—and for strengthening the bargaining power of subcontracted gig-economy workers.

The Browning-Ferris decision was also good news for fast-food workers and organizations like Fight for $15. Most fast-food companies use a franchising model, and Browning-Ferris made it easier for workers to hold corporations responsible for wage theft and union busting at individual locations. In 2014, the NLRB’s general counsel had already ruled that the McDonald’s Corporation could be considered a joint employer in various labor cases brought against the company’s franchises. But Browning-Ferris provided an entirely new legal dimension to the proceedings.

The Browning-Ferris decision was predictably criticized by industry groups, which immediately launched an all-out assault on the new rule. International Franchise Association lobbyist Matt Haller declared that the decision was “a knife-to-the throat issue,” pro-business organizations pressured Congress to block its implementation in their subsequent spending bill, and Browning-Ferris Industries challenged the decision in a federal appeals court.

Industry nervousness ended up being alleviated by the surprising election of Donald Trump, who successfully tipped the NLRB back to a Republican majority in September—and has sought to overturn the labor victories which occurred under his predecessor. The Trump administration recently ended Obama’s extension of federal overtime pay, and it’s preparing to eradicate a 2011 rule which protects the tips of wait staff. All of Trump’s NLRB appointees were connected to anti-union policies at their previous positions, but the confirmation process was fast-tracked, and they easily made it through GOP-controlled Senate. In overturning the Browning-Ferris precedent, the board claimed that the 2015 decision was responsible for “upending decades of labor law precedent and probably centuries of precedent in corporate law.”

In a statement, National Employment Law Project executive director Christine Owens called the reversal “just one more example of the Trump Administration favoring corporations over working people.”

“In this economy, employers are increasingly subcontracting out vital parts of their business to other contractors and/or using temporary employment agencies to fill vital positions,” said Owens. “The Browning-Ferris decision recognized that in these arrangements, companies that contract out work may still retain control over the conditions and standards that govern the work and how the workers doing the jobs are treated … the Trump NLRB has decided to let them off the hook.”

While there is no evidence that Trump was directly involved in the case, we do know that one his companies was impacted by the 2015 decision. In May 2016, catering workers at the Trump National Doral golf resort in Florida won a $125,000 settlement after suing for unpaid wages. As a result of the joint-employer liability, the workers were able to hold Trump Miami Resort Management responsible, even though an outside staffing agency had hired them.

It is likely that the Trump administration will soon work to overturn a number of additional Obama-era NLRB decisions. To the surprise of many, the board ended up adapting to the complexities of a changing economy under Obama and forcefully asserted the rights of workers in a number of important votes. Recent NLRB decisions have given graduate students the right to unionize at private universities, increased the bargaining power of workers at charter schools and made it easier for smaller groups of workers to unionize at companies. However, the term of the NLRB’s Republican chairman, Philip A. Miscimarra, ended just days after the board’s vote. Trump will at least have to wait until the Senate confirms his next nominee and reestablishes the Republican majority before he’s able to undo any of these changes.

This article was originally published at In These Times on December 21, 2017. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

Lifelong Wage Warrior Larry Mishel Takes On Trump’s Tax Scam

Tuesday, December 19th, 2017

Lawrence Mishel, the outgoing President of the Economic Policy Institute, is finally – after 30 years at the progressive economic research organization – seeing one of his wishes come true. Leaders in both major political parties are talking about wage stagnation, and how to address it.

“I’ve always wanted to elevate the concerns about people’s paychecks as the salient economic issue,” he said in an interview in his downtown Washington office.

The bad news is that the stagnant wages conversation is being co-opted by the Trump administration and congressional Republicans to sell a tax cut bill that will primarily benefit corporations and the wealthy.

Even so, Mishel counts that as progress. When Mishel joined the then-embryonic EPI as its first research director in 1987, all of the major right-wing think tanks denied that wage stagnation among the working class was a problem, even though EPI was among the first to show the trend unfolding, using the federal government’s deep trove of economic data. Few Democrats recognized the issue, either, Mishel said.

Today, “what’s interesting is there is so much of a dedication on the Trump team to link everything they are going to do to good jobs and wages, something that Democrats have not always done, for mysterious reasons,” Mishel said, pointing as an example the administration promoting its tax bill as “a $4,000 pay raise to workers.”

“The polls show that not many people buy it, even among Republicans, but it’s interesting that this transformation has happened,” Mishel said.

A Lifelong Passion

Mishel has had a lifelong passion for the plight of workers, going at least as far back as his Philadelphia boyhood and days at Penn State University. At Penn State, he combined that passion with a passion for economics, and after receiving advanced economics degrees from American University and the University of Wisconsin at Madison, he went to work as an economist for several unions, including the United Auto Workers; United Steelworkers; the American Federation of State, County and Municipal Employees; and the Industrial Union Department of the AFL-CIO.

When Mishel became president of EPI in 2002, the think tank was beginning to gain a reputation as being more than an advocate of pro-worker policies; it has a reputation for rigorous, fact-based scholarship and economic analysis that is relied on by a broad range of scholars, journalists and lawmakers. Its “State of Working America” reports have become a bible for people seeking to understand the economy from a Main Street point of view.

This month, Mishel hands over the reins of the EPI presidency to Thea Lee, who was previously deputy chief of staff for the AFL-CIO and a leading spokesperson for the union on issues like the impact of trade policy on workers.

But Mishel says he’s not going to disappear; he plans to continue to do research for EPI. “I want to tell the narrative about how wages were suppressed,” he said, particularly to make the point that four decades of stagnant wages for the working class is the result of, to borrow from the title of an EPI publication, “failure by design.”

An Economic Conundrum

The current state of the economy presents a classic economic conundrum. Economic textbooks say that with today’s national unemployment rate, 4.1 percent, we should see wage inflation caused by a tight labor market.

The last time the national unemployment rate averaged 4 percent, in 2000, wages rose on average about 5 percent a year, as shown in this wage tracker by the Federal Reserve Bank of Atlanta. In 2017, the wage tracker shows wage growth in 2017 hovering around 3.4 percent. EPI research further finds that this substandard wage growth has been even worse for people at the lower end of the income scale, whose wages in 2016 grew only about half as much as those of the top 20 percent.

“A true sign of a robust economy is rapid wage growth, and we don’t see wages growing that much faster than inflation, even with roughly 4 percent unemployment,” Mishel said.

Barring a last-minute surprise, passage of the Trump administration/Republican tax bill this week appears inevitable. Asked to what the American economy might look like a year after the tax bill is passed, Mishel predicted a continued stock market rise because companies, already flush with cash and finding themselves flooded with more, will continue to choose to use that cash to buy back their shares rather than invest in creating new jobs.

The big winners will be stockholders and corporate executives. Workers? Not so much. A boost in stock prices at best only benefits the third of American workers who have meaningful stock holdings, primarily retirement accounts. And even among that group of workers, the average retirement account stock portfolio is less than $100,000.

“The rising stock market is not a sign that the economy is doing well,” Mishel said. In fact, an overheated stock market, disconnected from the pulse of the Main Street economy, is prone to the kind of explosive bubble-burst that the nation saw in 2008.

What We Need Instead

What we need instead, Mishel said, is structural changes that will lead to real wage growth and improved working-class living standards. Those policies include:

• Raising the minimum wage, which Mishel said would have ripple effects beyond low-wage workers to boost the take-home pay of about 30 percent of the workforce.

• Targeting job creation in areas of high unemployment, which are disproportionately communities of color. Ultimately, government policy should be to ensure that every person who wants a job has access to a job, publicly funded if necessary. “You want a situation where employers are chasing after workers, and not workers chasing after employers. When employers are chasing after workers, wages go up,” Mishel said.

• Rebuilding the collective bargaining system. In 2016, only about one in 10 workers belonged to a labor union, a close to 50 percent decline from 1983. Nearly half of those work in the public sector. In private companies, fewer than one in 16 workers – less than 7 percent – belong to a union. If unions are stronger, Mishel said, “workers in non-union employers benefit as well, because their employers will follow the lead of the employers where collective bargaining is setting the standard. …I don’t think we will ever get robust middle-class wage growth or have the vibrant democracy that we need without reestablishing collective bargaining.”

• Assuring what Mishel calls “day-one fairness,” which would include eliminating such practices as misclassifying full-time workers so they are not eligible for health benefits or overtime, or forced arbitration and noncompete clauses that prevent workers from challenging bad worker policies or even leaving a bad employer to work for a competitor.

Having Their Moment

When Mishel is presented with the view that Donald Trump’s presidency and right-wing control of Congress has placed many of these policy goals further out of reach, he offers a contrarian view.

“The right is having its moment now,” he said, “but what has happened, though, is that the traditional stranglehold on the Democratic Party policy agenda by what you could call the corporate Democrats and their friends has been broken… The center-left policymakers have moved much closer to where the Economic Policy Institute has always been. So [with] the next wave of candidates and the next wave of legislation that comes if and when Democrats have electoral victories, we will do a lot better than we did during the Clinton era or the Obama era.”

Examples include the increased willingness of the Democratic Party mainstream to embrace universal health care, a $15 minimum wage by 2023, and support for collective bargaining for all public employees, Mishel said.

With this change, “you will see the Economic Policy Institute emerge as a much more important source of policy proposals,” Mishel predicted. “Our time will come again; there may be a Democratic House in 2019, and who knows about the Senate? Nothing is for sure, but it is not as grim as ‘the Democrats will never get back.’”

The People Can Win

In the meantime, Mishel advises people concerned about the state of the American worker to not think of the economy as “broken.”

“People walk around as if we have a bad economy,” Mishel said. “We don’t have a bad economy. It’s been built to do what it is doing, which is skimming the most for those at the top.”

That should be heartening, he went on to say, because changing the economy is “a matter of organizing and policy and mobilization.” That work won’t be easy, he said, but “the people can win.”

This blog was originally published at OurFuture.org on December 19, 2017. Reprinted with permission.

About the Author: Isaiah J. Poole is communications director of People’s Action, and has been the editor of OurFuture.org since 2007. Previously he worked for 25 years in mainstream media, most recently at Congressional Quarterly, where he covered congressional leadership and tracked major bills through Congress. Most of his journalism experience has been in Washington as both a reporter and an editor on topics ranging from presidential politics to pop culture. His work has put him at the front lines of ideological battles between progressives and conservatives. He also served as a founding member of the Washington Association of Black Journalists and the National Lesbian and Gay Journalists Association.

Murdoch downplays sexual harassment at Fox News, women threaten to ‘go public with the truth’

Monday, December 18th, 2017

Robert Murdoch attempted to downplay Fox News’ alleged culture of sexual misconduct as limited to “isolated incidents” with former CEO Roger Ailes — a characterization that was met with fierce criticism from the women on the media mogul’s payroll who say they were victimized by employees of Fox News. Now his media empire’s PR department is attempting to spin his comments ahead of 21st Century Fox’s $52 billion sale to Disney.

Murdoch denied that the numerous allegations of sexual misconduct damaged the Fox News Channel, which was not part of the Disney sale, during an interview with Sky News host Ian King when discussing the blockbuster deal.

“All nonsense, there was a problem with our chief executive [Ailes], sort of, over the years, isolated incidents,” Murdoch said during the Sky News interview.

“As soon as we investigated he was out of the place in hours — well, three or four days. And there has been nothing else since then. That was largely political because we are conservative. The liberals are going down the drain — NBC is in deep trouble… There are really bad cases and people should be moved aside. There are other things — which probably amount to a bit of flirting.”

Murdoch ignored the fact that the conservative news channel’s former prime-time host Bill O’Reilly was ousted after it was revealed he made $13 million in settlements for sexual harassment lawsuits, host Eric Bolling sent lewd text messages to female colleagues, and multiple women alleged being sexually harassed by colleagues. Ailes, who died earlier this year, was fired after he allegedly told former host Gretchen Carlson she needed to “get along with the boys” after she complained about the conduct of her former Fox & Friends co-host Steve Doocy. Carlson received a $20 million settlement.

Murdoch’s comments received backlash from 10 current and former female Fox News on-air talents who claimed they were harassed or assaulted by network executives or fellow talents, according to a HuffPost report. Those women, who asked to remain anonymous, described their reaction to Murdoch’s comments as “stunned,” “disgusted,” and “hungry for justice,” according to HuffPost.

“I have had to put up with a hostile work environment for years, and now I’m told that it doesn’t exist by a man who doesn’t have to walk these halls every day? I’m hungry for justice,” one woman said.

21st Century Fox, which is being sold to the Disney Channel, attempted to spin Murdoch’s comments, claiming he was denying the sexual harassment issues played a role in the Disney sale as it relates to the uncertain future of Sky News.

However, that spin was apparently unconvincing to the on-air talent of the network who shared their grievances about Murdoch’s comments with HuffPost.

Contrary to Murdoch’s claim that sexual harassment within Fox News was contained to Ailes, one woman told HuffPost that there are still sexual harassers employed by the network. “Hey Rupert — stop with the lies or we’ll go public with the truth. All of it. Including about the talent and executives you still employ who have harassed us and don’t give a damn about workplace respect — only money,” said a woman who was previously a member of Fox News’ on-air talent. “How much will it take before you actually start caring about your female employees? Is your 52 billion enough? Are we really going to clean house now?”

This article was originally published at ThinkProgress on December 16, 2017. Reprinted with permission. 

About the Author: Danielle McLean is an investigative reporter at ThinkProgress.

Trump Dept. of Labor Rule Would Legalize Employers Stealing Workers’ Tips

Friday, December 15th, 2017

Last week, the Trump administration launched yet another front in its war on workers when the Department of Labor (DOL) proposed a new rule that would allow restaurants and other employers of tipped workers to begin legally pocketing their workers’ tips. 

The DOL’s proposed rule would ostensibly allow restaurants to take the tips that servers and bartenders earn and share them with untipped employees, such as cooks and dishwashers. This may sound like as a reasonable change, since kitchen staff are essential to the dining experience. Indeed, we do need to reform how restaurant workers generally and tipped workers specifically are paid, including reducing pay disparities between “front of the house” workers and kitchen staff.

But this proposed rule is not really aimed at fixing these problems. How do we know? Because, critically, the rule does not actually require that employers distribute “pooled” tips to workers. Under the administration’s proposed rule, as long as tipped workers earn the minimum wage, employers could legally pocket those tips for themselves.

Evidence shows that even now, when employers are prohibited from pocketing tips, many still do. Research on workers in three large U.S. cities—Chicago, Los Angeles, and New York—finds that 12 percent of tipped workers had their tips stolen by their employer or supervisor. Recent research also shows that workers in restaurants and bars are much more likely to suffer minimum wage violations—meaning being paid less than minimum wage—than workers in other industries. In the 10 most populous states, nearly one out of every seven restaurant workers reports being paid less than the minimum wage.

In some cases, this is the result of employers illegally confiscating tips. In others, it may be the result of employers asking staff to work off the clock, taking illegal deductions from paychecks or paying less than minimum wage to workers who may feel they cannot speak up—such as formerly incarcerated individuals, undocumented workers or foreign guest workers. These violations amount to more than $2.2 billion in stolen wages annually—and that’s just in the 10 largest states.

With that much illegal wage theft occurring, it should be clear that when employers can legally pocket the tips earned by their employees, many will. And while the bulk of tipped employees work in restaurants, tipped workers outside the restaurant industry—such as nail salon workers, casino dealers, barbers and hair stylists—could also see their bosses begin taking a cut from their tips.

The Economic Policy Institute estimates that under the Trump administration’s proposed rule, employers would pocket nearly $6 billion in tips earned by tipped workers each year. Trump’s DOL even acknowledges that this could occur, stating “The proposed rule rescinds those portions of the 2011 regulations that restrict employer use of customer tips when the employer pays at least the full Federal minimum wage.” In other words, so long as servers, bartenders and other tipped workers are being paid the measly federal minimum wage of $7.25 per hour, employers can do whatever they please with those workers’ tips. The DOL claims that this is actually a benefit of the proposed rule because it “may result in a reduction in litigation”—that is, fewer tipped workers being able to sue employers who steal their pay.

The fact that Trump’s DOL would so brazenly work to undermine protections for one of the lowest-paid, most poverty-stricken segments of the workforce says a lot about this administration’s values. The federal DOL is many workers’ primary source of protection when mistreated by an employer. In fact, 14 states effectively defer their wage and hour enforcement capacity to federal officials—meaning that outside of a private lawsuit, the federal DOL is these workers’ only option for recourse.

An administration that genuinely cared about working people would crack down on employers stealing from workers, not propose to legalize it.

This blog was originally published at In These Times on December 15, 2017. Reprinted with permission. 

About the Author: David Cooper is a Senior Economic Analyst at the Economic Policy Institute.

Is Time for Bag Searches Compensable in California?

Thursday, December 14th, 2017

In the new year the California Supreme Court will address the question of whether employee bag searches should be compensated under California law. The question recently certified by the Ninth Circuit Court of Appeals to the California Supreme Court in Frlekin v. Apple, Inc. states:

“Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7”?

Not all employers have bag inspection policies. However, those that do retain the right to inspect large purses, backpacks, and other personal bags when an employee leaves the premises for a meal or rest break. In some cases, there might be no wait and a search could take 30 seconds; in others, it might last several minutes, reducing the break to a much shorter duration than the law requires. For example, a 30-minute meal period could be cut in half and a 10-minute rest break could be effectively eliminated. This can deter employees from leaving to purchase and enjoy a meal or otherwise spend their breaks as they wish. California law requires employees to be fully relieved of their duties on all breaks with few exceptions.

Bag inspection policies exist to enhance loss prevention. Despite employers’ legitimate concerns about employee theft, there are less restrictive alternatives that better protect employees’ rights. For example, employers can arrange for employees to clock out after they are searched instead of before they wait for and undergo searches. If the California Supreme Court answers the question above in the affirmative, it will send a strong message that employers can no longer get something for free—that is, they can no longer expect employees to do something off the clock for the sole benefit of the employer.

Even if bag searches do infringe on workers’ rights relating to meal and rest periods in California, employees must still overcome the hurdle of the de minimis doctrine. This federal doctrine holds that, where business considerations make it impractical to precisely record time, such “de minimis” time (e.g. a few seconds or minutes) is not compensable. Because California law is more protective of employees’ rights and specifies meal and rest period requirements, the Ninth Circuit has certified this question to the California Supreme Court in Troester v. Starbucks Corporation:

“Does the federal Fair Labor Standards Act de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197?”

If the Court holds that bag searches are compensable and the de minimis doctrine does not apply to state claims, it would be a victory for California employees. See Apple defeats U.S. Class Action Lawsuit over bag searches. They would be entitled to wages for all time spent waiting for and undergoing bag inspections, both during meal and rest periods and at the end of their shifts.

About the Author: Scott Edward Cole founded the predecessor firm to Scott Cole & Associates in 1992 and has devoted himself, his team, and the firm’s resources to championing employment and consumer law issues ever since. Mr. Cole is an extremely well-respected leader in the field of employment class action litigation, has authored numerous scholarly publications and has been called upon to serve as a regular speaker at public seminars on issues surrounding employment laws and class action procedures.

AFL-CIO Joins CWA Call for $4,000 Wage Increase for Working People

Wednesday, December 13th, 2017

The Donald Trump administration repeatedly has claimed that its tax bill would result in a $4,000 wage increase for working people. Today, the AFL-CIO has joined a campaign by the Communications Workers of America (CWA) to demand corporations guarantee this raise in writing. The labor federation is rallying the power of its 12.5 million members and the entire union movement to support this campaign in every industry.

AFL-CIO President Richard Trumka said:

CWA has inspired an innovative movement to demand working people get our fair share and expose the scam that is the Republican tax bill. Working people have heard the same old lies about the benefits of economic policies written by and for greedy corporations for too long. This campaign is about holding corporations and politicians accountable to their claims and getting a much-needed raise for America’s workers.

On Nov. 20, CWA sent a letter to its major employers, including AT&T, Verizon, General Electric Co., American Airlines and NBC Universal, calling on them to commit to that raise in writing. In joining the CWA’s efforts, the AFL-CIO is encouraging all unions from all sectors to join in by reaching out to their employers and encouraging all working people to sign a petition that puts employers on notice that they will be held accountable if the Republican tax bill becomes law. 

In a powerful op-ed, CWA President Christopher Shelton laid out how the Republican tax scam would hurt working people and increase the deficit by more than $1 trillion:

Republicans are on the brink of passing a massive tax overhaul, and it’s looking like the biggest con of the Trump era so far. And that’s saying a lot.

The legislation being jammed through by the House and Senate Republicans is a tax giveaway to corporations and the richest 1 percent, paid for by working and middle-income families.

Across the board, working people will be hurt by this plan, whether by the new incentives to corporations to send U.S. jobs overseas, the loss of the medical expense deduction, new taxes imposed on education benefits, the inability to deduct interest on student loans, the loss of state and local tax deductions, or the forced budget cuts to Medicare, transportation, health care and other critical programs.

Despite the double-talk from Republicans anxious to sell this plan, it’s not hard to figure out who Republicans really want to help. Why else would tax cuts for corporations and tax changes that benefit the wealthiest Americans—like the estate tax—be permanent, while individual tax cuts for middle-income families are only temporary?…

Working people know better than to believe the boss’ promises unless they are in writing. That’s why my union has asked some of our biggest employers to sign an agreement that says if the tax plan passes, working people will get their $4,000.

This blog was originally published by the AFL-CIO on December 12, 2017. Reprinted with permission. 

OSHA Rejects GAO Poultry Recommendations: Sees No Problem With Workers’ Restroom Access

Tuesday, December 12th, 2017

In a surprising and disappointing apparent rollback of OSHA’s enforcement policy related to poultry inspections, Acting Assistant Secretary Loren Sweatt has rejected recommendations from the Government Accountability Office (GAO) designed to address findings that poultry workers are intimidated about reporting health and safety problems to OSHA, particularly about their inability to get bathroom breaks. The GAO recommended in a report released last week that OSHA “consider off-site interviews or exploring other options to obtain information anonymously,” and that OSHA inspectors make a greater effort to ask poultry workers about the extent to which bathroom access is a problem.

The GAO report is a follow-up to its May 2016 study that found meat and poultry workers have the highest injury rates of any industry, and that even those numbers are underreported.  The current report notes that the meat and poultry industry had the 8th highest number of recent severe injury reports of all industries, although the industry’s self-reported injury and illness statistics declined from 2004 through 2015. Severe injury reports result from a recent OSHA requirement that employers report to OSHA all hospitalizations, amputations and loss of an eye (in addition to fatalities.)

GAO also observed that while OSHA had increased its annual inspections of the meat and poultry industry from 177 in 2005 to 244 in 2016, it’s still a tiny proportion of the 5,282 meat and poultry plants in the United States that employ an estimated 481,000 workers.

The report was conducted at the request of Senators Patty Murray (D-WA) and Robert Casey (D-PA), and Congressman Bobby Scott (D-VA).  In addition interviewing OSHA and USDA staff, the GAO conducted group and individual interviews with meat and poultry workers in six locations in five states: Arkansas, Delaware, Nebraska, North Carolina, and Virginia.

The report comes in the midst of a highly controversial industry effort to increase the line speed in poultry processing plants, a change that would increase musculoskeletal injuries suffered by poultry workers.


The GAO found that although the number of OSHA inspections had increased over the past ten years, OSHA “faces challenges identifying and addressing worker safety concerns because workers may be reluctant to contact OSHA for fear of employer retaliation.” Because OSHA interviews workers in the workplace, and those interviews are conducted in private, the supervisor still knows the identities of interviewed workers. Making the problem worse, according to GAO, “some meat and poultry workers may be less likely to report or seek treatment for injuries and illnesses because of their vulnerable status as undocumented or foreign-born workers and because of their economic vulnerability.”

Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom

Aside from workers being reluctant to report serious safety and health conditions, the problem most overlooked may be their lack of bathroom access. Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom. OSHA guidance issued in 1998 states that denial or delay of bathroom access can result in various serious health effects, such as urinary tract infections, constipation, abdominal pain, and hemorrhoids, and workers interviewed by the GAO also reported that they had suffered health effects like kidney problems from delayed or denied bathroom breaks. Under OSHA’ sanitation standard (CFR 1910.141), employers are required to make toilet facilities available so that employees can use them when they need to do so.

According to GAO:

Workers we interviewed in all five states said their requests to use the bathroom are often delayed or denied, and workers in two states said they fear punishment if they ask to use the bathroom too frequently or complain about lack of bathroom access to their supervisors or to OSHA. One industry representative told us they believe some supervisors in meat and poultry plants deny bathroom access in order to maximize production output.

The problem with enforcing the right of a worker to go to the bathroom, according to the GAO,  is that if workers fear dismissal or other punishment for talking to OSHA about bathroom breaks, OSHA inspectors may not become aware of the problem. Furthermore, OSHA inspectors do not always ask specifically about bathroom access, and workers who experience bathroom access problems may not volunteer this information either because they’re afraid or because they may not realize that such information would be of interest to OSHA.

Common Sense Recommendations:  Rejected

In order to address the intimidation issue, learn more details about hazards, injuries, and illnesses and gather more information about bathroom break problems, the GAO made two recommendations to OSHA: First, that OSHA should “take additional steps to encourage workers to disclose sensitive concerns during OSHA inspections of meat and poultry plants; for example, by considering additional off-site interviews or exploring other options to obtain information anonymously.”

Second, in order to determine whether, and to what extent bathroom access is a problem, OSHA should simply ask workers during meat and poultry plant inspections about whether bathroom access is a problem.

But despite the GAO’s findings, OSHA leadership doesn’t think there is a problem that has to be dealt with, and anyway, it would be too much trouble. A letter from Deputy Assistant Secretary Loren Sweatt accompanying the report states that:

GAO’s recommendation to conduct additional offsite interviews, however, is challenging in terms of witness cooperation, resources and CSHO safety. Moreover each inspection requires a flexible approach to address unique workplace hazards.  OSHA cannot commit to asking about bathroom access during each inspection at a meat or poultry processing facility.

Nothing in these GAO recommendations is particularly new or novel. OSHA’s Field Operations Manual, which sets forth the procedures under which OSHA conducts inspections and enforcement, emphasizes the importance of “a free and open exchange of information between OSHA inspectors and employees” and allows inspectors to conduct interviews off site when they feel that off-site interviews would be more effective.  The problem is that if the workplace doesn’t have a union, or worker advocates that are helping the workers, it can be difficult to find an acceptable time and venue.

Furthermore, an OSHA poultry directive, issued in 2015 and currently under legal challenge, authorizes inspectors to expand inspections beyond other hazards that may be the subject of the inspection — including musculoskeletal injuries and bathroom access —  and some regional OSHA poultry emphasis programs require inspectors to inquire about bathroom access.

In rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. 

Thus, in rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. Deborah Berkowitz of the National Employment Law Project and a former OSHA official in the Obama administration, was quoted in Inside OSHA saying  “We are stunned that OSHA’s response to the glaring findings in this report is to announce a rollback of longstanding enforcement policies, thereby ensuring that the poultry industry will have an easier time hiding serious hazards. The inevitable result will be even more injuries to this already vulnerable worker population. That is simply unacceptable.”

See No Evil, Hear No Evil…

According to GAO, “OSHA officials said they did not believe lack of bathroom access was a widespread problem in the meat and poultry industry” and offered a number of creative explanations:

  • OSHA has not compared bathroom access practices in the meat and poultry industry with other industries involving moving production lines because they vary by establishment even within a single industry. (This, even though OSHA has cited poultry establishments for lack of bathroom access a number of times.)
  • requiring inspectors to investigate bathroom access would divert inspectors’ limited resources from higher-priority hazards and could result in companies’ claiming that the line of questioning is unsubstantiated.
  • there were a small number of citations issued related to bathroom access. (Of course, this is somewhat circular reasoning: The GAO argued that the reason for few citations may be that workers don’t raise the issue unless OSHA inspectors ask about the problem. See no evil, hear no evil…)

And in an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access” and kindly suggested that “given that workers whom we asked about bathroom access during off-site interviews in all five states said that bathroom access is a problem, and worker advocates we interviewed stated it was as well, it is

possible that OSHA is missing instances of this hazard, resulting in incomplete data to guide its inspections.” True, it is possible.

In an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access.”

But I am less charitable than GAO. I suspect that the real reason for OSHA’s blindness may not just be innocent naïveté, but rather a bit of over-attentiveness to their industry friends who don’t seem overly concerned about the problem. The GAO reported that “Meat and poultry industry representatives we interviewed said that bathroom access is not a problem because companies provide bathroom access when needed.”  And after the report was issued, the National Chicken Council, the National Turkey Federation and the U.S. Poultry & Egg Association said that the poultry industry “is constantly looking at ways to continue to improve” worker safety, and Barry Carpenter, president of the North American Meat Institute explained that “In a tight labor market like the one we have now, there is an even stronger incentive to protect our employees and ensure that they are healthy and able to perform their jobs.”

And just to make sure that OSHA never sees bathroom access as a problem, poultry employers have sharply increased the number of denials of entry to OSHA inspectors — forcing them to get a warrant — as OSHA increased inspections of poultry plants during the Obama administration and began expanding inspections beyond the initial complaint incident to look at things like musculoskeletal injuries and bathroom breaks.  From 2005-2015, there were only 16 denials of entry in the meat and poultry industry, but in just 2016 alone, there were 15 denials, all in Region IV, specifically in Georgia, Alabama, Florida and Mississippi.

Other Issues

Medical Mismanagement: The GAO also confirmed problems that OSHA had previously identified with medical mismanagement of workers suffering from musculoskeletal disorders, including inappropriate medical treatment, lack of worker access to health care, underqualified practitioners, and challenges to reporting. In one case, OSHA reported that a number of workers were fired after suffering MSDs — sometimes on the same day of the MSD occurrence — and in another case a worker made over 90 visits to the nursing station before referral to a physician. GAO talked to workers and worker advocates who reported similar problems. GAO recommended that OSHA revise its medical management guidance and OSHA agreed.

Cooperation With FSIS: A 1994 Memorandum of Understanding between the Department of Agriculture’s Food Safety and Inspection Service (FSIS) and OSHA calls for FSIS inspectors — who are present in most poultry plants —  to make referrals to OSHA when they identify unsafe conditions. FSIA is responsible for ensuring the food safety of meat and poultry products. Despite efforts in recent years and some cross-training of FSIS inspectors, such referrals are rare, partly because FSIS inspectors fear that referrals to OSHA may trigger an OSHA inspection of FSIS due to a number of hazards FSIS inspectors are exposed to. GAO made three recommendations related to these issues to encourage OSHA and FSIS to work more closely together and to address hazards faced by FSIS inspectors from chemicals used to disinfect chickens. FSIA was noncommittal.

Research: Finally, GAO made a recommendation to the National Institute for Occupational Safety and Health (NIOSH) to study safety and health hazards of FSIS inspectors’ exposure to peracetic acid. NIOSH agreed.

What Others Are Saying

I’m not the only one upset about this report and OSHA’s response.

Industry watchdog Nebraska Appleseed, applauded the report quoting a former meatpacking worker in Nebraska: “Meatpacking plants are not only slaughterhouses for pigs, they are also slaughterhouses for humans,” said Lupe Vega-Brown.”They exploit you and after you get injured, they will fire you. Within a few years of working at a plant, it will end your dreams.”

A NELP statement added:

Echoing the finding of its 2016 report, the GAO was particularly critical of how in-plant health units treat injured workers—highlighting new concerns of inappropriate response to worker injuries and illnesses and persons working outside their legal scope of practice. (The 2016 report confirmed that meat and poultry workers continued to face the same hazardous conditions previously cited by the GAO in 2005—including traumatic injuries from machines and tools, exposure to chemicals and pathogens, and fast-paced repetitive tasks associated with musculoskeletal disorders.)

According to an Oxfam statement:

“The health and safety problems that workers face in poultry processing plants have been exacerbated in the past year due to a growing climate of fear and oppression in an industry where workers are mostly immigrants, refugees, and people of color,” said Alex Galimberti, Senior Advocacy and Collaborations Advisor for Oxfam America. “Every day, workers experience problems, such as denial of treatment for repetitive motion injuries, lack of access to bathroom breaks, and sexual harassment. Most of the time, they feel unsafe reporting these issues to federal agencies or to top level management.”

Oxfam issued a report in 2016 about the bathroom break problem in the poultry industry.

The United Food and Commercial Workers union praised the report and tied it into the industry’s recent push to increase line speeds:

“The hard-working people who work in poultry plants have some of the most dangerous and physically demanding jobs in America. This report sadly confirms that many of these skilled professionals who keep our food safe are struggling to keep themselves safe at work. They have earned and deserve better.

“The dangers endured by poultry workers that are highlighted in this report also underscore why a recent request by the National Chicken Council to increase line speeds defies common sense and is being clearly driven by greed. We urge the U.S. Department of Agriculture to take this report seriously and reject that request so that poultry workers and the food we all consume can be kept safe.”

Congressman Bobby Scott and Senator Patty Murray made the following statements:

“When workers face intimidation, retribution, or fear losing their jobs for reporting hazards, seeking medical treatment, or simply using the restroom, it is incumbent on federal agencies to increase their responsiveness to those concerns,” said Congressman Scott (VA-03). “In addition, GAO reported that during 2016, 15 meat and poultry plants –all in the southeast—have refused OSHA access to expand complaint inspections to cover additional recognized hazards; this development has impaired OSHA’s ability to protect workers, and should compel the Department of Labor to vigorously defend its statutory authority to enter plants ‘without delay’.”

“Every worker should be able to make a living without risking their health or safety, so it’s deeply concerning to hear workers in meat and poultry factories are knowingly being put in harm’s way,” said Senator Murray (D-WA). “Given this report’s findings and the Trump Administration’s continued efforts to undermine worker protections, it’s clear our nation’s top health and safety agency needs a leader who has a record of fighting for workers lives and livelihoods—and I will continue to press OSHA nominee Scott Mugno on his commitment to put workers ahead of corporations’ bottom lines.”

This blog was originally published at Confined Space on December 12, 2017. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

The Supreme Court hits pause on gay and lesbian rights

Monday, December 11th, 2017

For the second time in a week, the Supreme Court signaled on Monday that it may no longer be a friendly place for victims of discrimination on the basis of sexual orientation.

The Court announced Monday that it will not hear Evans v. Georgia Regional Hospital, a surprising decision given that the question presented in Evans — whether existing law banning discrimination “because of … sex” encompasses discrimination based on sexual orientation — is a subject of disagreement among federal appeals courts.

According to the Court’s own rules, the justices are especially likely to hear cases where “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Maintaining the uniformity of federal law is one of the primary functions of the Supreme Court.

As a general rule, it is dangerous to overread the significance of the Court’s decision not to hear a particular case. Such denials of review are not decisions on the merits, and can sometimes reflect a quirky problem with an individual case — not that the justices are uninterested in resolving the issue presented by that case.

But the Court’s non-decision in Evans follows last week’s surprising oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Justice Anthony Kennedy — the author of the Supreme Court’s landmark marriage equality decision — appeared unwilling to let the law treat homophobia as an evil akin to racism, sexism, or other forms of invidious discrimination.

Taken together, the two events suggest that Kennedy, who believes that all people have a fundamental right to marry, is not particularly interested in abolishing discrimination on the basis of sexual orientation writ large. Without Kennedy, moreover, the project of equality for the LGBTQ community is dead in the water at the Supreme Court.

A year-and-a-half ago, Kennedy’s marriage equality opinion in Obergefell v. Hodges seemed to suggest that gay rights litigators still had many significant victories ahead of themObergefell described sexual orientation as an “immutable nature.” And it highlighted the long history of harsh discrimination against people with same-sex attractions both by the government and private actors.

This language in the Obergefell opinion seemed significant because past Supreme Court decisions established that when a group has historically faced discrimination that bears “no relation to ability to perform or contribute to society,” and especially when they face such discrimination because of an “immutable” trait that they cannot control, any law which discriminates against that group must be treated with a great deal of constitutional skepticism.

A major purpose of the Fourteenth Amendment is to eradicate institutionalized racism and government discrimination that is similar in character to racism, and Kennedy’s Obergefell opinion strongly signaled that discrimination on the basis of sexual orientation meets this test.

Perhaps emboldened by these signals in Obergefell, the United States Court of Appeals for the Seventh Circuit held last April that the existing ban on sex discrimination by employers prohibits discrimination on the basis of sexual orientation. In an 8-3 decision joined by several Republican-appointed judges, the Seventh Circuit explained in Hively v. Ivy Tech Community College that discrimination against a lesbian employee is itself a form of sex discrimination. Being a woman attracted to women “represents the ultimate case of failure to conform to the female stereotype.”

On the day Hively was handed down, there was good reason to believe that the Supreme Court would follow the Seventh Circuit’s lead. Kennedy’s opinion in Obergefell suggested that he believes that discrimination on the basis of sexual orientation is both morally and legally similar to sexism. And eliminating private discrimination against gay, lesbian, and bisexual employees was the next logical step for LGBTQ rights litigators after their victory for marriage equality.

Now, however, that project is stalled. The Supreme Court’s decision not to take the Evans case leaves Hively in place, but it also leaves in place decisions in several other federal judicial circuits holding that it is perfectly legal to fire someone because they are gay. Kennedy’s questions in the Masterpiece Cakeshop case, moreover, suggest that he may even be willing to roll back existing protections for such workers.

At last Tuesday’s oral argument, Kennedy was outraged by a Colorado state commissioner who said — accurately — that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.” He also accused the state of not being “tolerant” or “respectful” of the religious beliefs of a baker who refused to serve a same-sex couple in violation of Colorado’s anti-discrimination law.

Kennedy, in other words, appeared to think that laws banning discrimination on the basis of sexual orientation must bend to the will of people who claim a religious justification for their prejudices — or, at least, that state officials who wish to enforce these laws must walk on eggshells to avoid offending people on the religious right.

Rather than extending civil rights protections to gay, lesbian, and bisexual workers throughout the country, Kennedy now appears more likely to roll back existing protections in states that already ban discrimination on the basis of sexual orientation. The momentum towards equality is currently paused, but it may soon move in reverse.

This article was originally published by Ian Millhiser on December 11, 2017. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Your Rights Job Survival The Issues Features Resources About This Blog