Outten & Golden: Empowering Employees in the Workplace

Archive for April, 2018

She gave the President the finger. Employer gave her the boot.

Thursday, April 19th, 2018

Juli Briskman was on her own time, riding her bicycle, when President Trump’s motorcade drove by. She expressed her personal feelings with a middle finger salute, not realizing that a news reporter had captured her gesture on camera.

She abruptly lost her job after the photo went viral on social media. Her employer, a government contracting firm, feared the Trump administration would retaliate by withholding or not renewing contracts. She has sued for wrongful termination.

Did her employer’s action violate her rights?

Briskman was forced to resign in November 2017. She has now filed a lawsuit against her employer, citing violation of her civil rights. There are limits on free speech in the workplace. But she wasn’t in the workplace. When she “flipped the bird” at the president and his motorcade, she was doing so as a private citizen.

Giving someone the finger, however uncouth it may seem, is protected speech under the First Amendment. Employers do have some leeway to discipline or fire workers if they badmouth the company or if their personal conduct violates a corporate policy.

Briskman is claiming that she was fired as a sacrificial lamb. Her employer, Akima, has government contracts. The company has not claimed that her speech violated policy or offended her co-workers. Rather, she contends the company terminated her to avoid the wrath of the White House. The stated reason for her forced resignation was that the company could lose out on lucrative contracts if she were retained. In other words, the company retaliated against her before the president could retaliate against the company.

Can an employer pre-emptively terminate a worker for what might happen?

Ms. Briskman would likely still have her job if she had given the finger to anyone other than the president of the United States. And perhaps if it had been any other president. Maybe management was pressured by the White House through back channels. Maybe they just weren’t taking any chances.

The question for the court, or a jury, will be whether Akima was within its rights to take adverse employment action against an employee for (a) private speech that could (b) potentially but not necessarily affect its future contracts.

“Working for a company that does business with the federal government should never limit your ability to criticize that government in your private time,” Briskman has stated.

This unsettled legal issue will likely come up again

In the age of social media, clashes between free speech and employment are increasingly common. What you post on Facebook or Instagram on your free time may be visible to your bosses. Anyone with a cellphone can capture your strong words or rude gestures and make you suddenly (in)famous on the internet.

It will be interesting to see where this lawsuit goes. Do you think political speech or personal opinions while you are off duty should be protected? Or should employers be able to fire workers for free speech that results in backlash against the company?

This blog was originally published at the Passman & Kaplan blog on April 18, 2018. Reprinted with permission.

About the Author:  Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

New Jersey to be tenth state with paid sick leave, but the U.S. stays at the bottom worldwide

Wednesday, April 18th, 2018

More than a million workers will be getting paid sick leave soon after New Jersey’s legislature has passed a bill, which Gov. Phil Murphy has said he supports. That makes New Jersey the tenth state to require paid sick leave, and the second to do so in 2018, but New Jersey’s path to this point has been especially tough. Republican former Gov. Chris Christie kept a statewide sick leave bill from becoming law even as 13 cities and towns, including some of the state’s largest, passed their own local laws. Now:

The legislation, variations of which have been making its way through the Statehouse for years, would allow private-sector workers to accrue one hour of earned sick leave for every 30 hours worked.

They can use that time to care for themselves or a family member who is ill, to attend school conferences or meetings, or to recover from domestic violence.

Family Values @ Work co-directors Ellen Bravo and Wendy Chun-Hoon noted in a statement that, in addition to the domestic violence provisions, the law “includes the most inclusive definition of family, mirroring America’s families. Those in LGBTQ relationships, people who care for grandparents, aunts, uncles and loved ones outside of the nuclear family model, can heed doctors’ orders and take the time they need to care for their chosen family.”

Republicans continue to stand in the way of the United States joining the overwhelming majority of other countries in requiring some form of paid sick leave.

This blog was published at DailyKos on April 13, 2018. Reprinted with permission.

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

Arizona teachers could be next to go on strike

Tuesday, April 17th, 2018

Arizona teachers will begin voting on whether to strike on Tuesday. The voting will go on for three days.

Although Gov. Doug Ducey (R) announced a proposal to raise teacher pay by 20 percent by 2020, which state lawmakers will debate this week, teachers say his proposal doesn’t address education cuts over the past decade or large classroom sizes across the state.

Teachers are leaving the state for higher salaries and smaller classroom sizes and there are too many teacher vacancies as a result, teachers told ThinkProgress’ Elham Khatami last week. Last year, there were 8,600 teacher vacancies and 62 percent of those vacancies were vacant or being taken by people who couldn’t qualify for a teaching certificate, according to the Arizona Republic.

Arizona had the most devastating cuts over the past decade, according to a 2017 Center for Budget and Policy Priorities report on education funding since the Great Recession. State funding per student fell by 36.6 percent between 2008 and 2015, more than any other state.

On April 11, thousands of teachers participated in a statewide walk-in to ask for more education funding and higher salaries. In addition to the 20 percent raise they requested, they want to implement a permanent salary structure, offer competitive pay for educational support staff, stop new tax cuts until the state’s per pupil funding reaches the national average, and restore education funding to 2008 levels.

Arizona Educators United, a coalition of teachers, administrators, and education support professionals, organized the vote. Derek Harris, a member of the coalition’s leadership team and a band teacher at Tuscon Unified School District, said the group wants to see support from all over the state, according to Tuscon.com.

He said organizers want something more than a simple majority, but they don’t have a firm threshold for a vote. Teachers will vote before and after school hours. One of the members of the coalition leadership team, Kelley Fisher, a kindergarten teacher at Las Brisas Elementary School, showed teachers how to make a secure ballot box in a video on the group’s Facebook page.

“I am a creative arts teacher so I had to include some glitter but that’s not required,” she added.

Teachers on the coalition’s leadership team named the reasons why the governor’s proposal is not sufficient, such as the lack of detail on where funding for the raises will come from. Teachers also said a proposal should include more education funding to improve students’ quality of education.

“My students deserve to have repairs on their building and working plumbing and holes in walls patched,” Harris said in the group’s Facebook video published on Monday.

Harris laid out a plan for teachers over the next week for the voting process and next steps over the weekend, such as community organization meetings across the state.

“You will be breaking into canvassing teams, organizing house meetings, and really moving into the next step to get the community on our side,” Harris said. “So this week, let’s try to stay very attentive to what’s going on. We’re saying this week is #RedAlert, because if the legislature does something funny we want to make sure that you’re paying attention and ready to do anything that may need to be done.”

This article was originally published at ThinkProgress on April 17, 2018. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits

12 Things We've Learned About the GOP Tax Bill

Monday, April 16th, 2018

President Donald Trump and congressional Republicans rushed to pass the 2017 Tax Cuts and Jobs Act in December 2017, leaving very little time for public scrutiny or debate. Here are a few things we have learned since the GOP tax bill passed.

1. It Will Encourage Outsourcing: An April 2018 report by the nonpartisan Congressional Budget Office confirms that two “provisions [of the GOP tax bill] may increase corporations’ incentive to locate tangible assets abroad.”

2. It Has Not Boosted Corporate Investment: The rate of investment growth has stayed pretty much the same as before the GOP tax bill passed.

3. Few Workers Are Benefiting: Only 4.3% of workers are getting a one-time bonus or wage increase this year, according to Americans for Tax Fairness.

4. Corporations Are Keeping the WindfallAmericans for Tax Fairness calculates that corporations are receiving nine times as much in tax cuts as they are giving to workers in one-time bonuses and wage increases.

5. Corporations Are Using the Windfall to Buy Back Stocks: Corporations are spending 37 times as much on stock buybacks, which overwhelmingly benefit the wealthy, as on one-time bonuses and wage increases for workers, according to Americans for Tax Fairness.

6. Corporations Are Laying Off WorkersAmericans for Tax Fairness calculates that 183 private-sector businesses have announced 94,296 layoffs since Congress passed the tax bill.

7. It Costs More Than We Thought: The GOP tax bill will eventually cost $1.9 trillion by 2028, according to an April 2018 report by the nonpartisan Congressional Budget Office. And we know some Republicanswill call for cuts to Medicare, Medicaid and Social Security to pay for it.

8. We’ve Fallen Behind When It Comes to Corporate Tax Revenue: Thanks to the GOP tax bill, corporate tax revenue (as a share of the economy) will be lower in the United States than in any other developed country, according to an April 2018 report by the Institute on Taxation and Economic Policy.

9. Extending the Individual Tax Cuts Would Benefit the Wealthy: The GOP tax bill’s temporary tax cuts for individuals expires by 2025, and some Republicans are now proposing to extend them.  An April 2018 report by the Institute on Taxation and Economic Policy shows that 61% of the benefit from these extending individual tax cuts would go to the richest one-fifth of taxpayers.

10. It Is Shoddy Work: In March 2018, a leading tax expert concluded that the GOP tax bill’s new rules for pass-through businesses “achieved a rare and unenviable trifecta, by making the tax system less efficient, less fair and more complicated. It lacked any coherent (or even clearly articulated) underlying principle, was shoddily executed and ought to be promptly repealed.”

11. It Is Still Unpopular: The GOP tax bill polls poorly, with a clear majority disapproving.

12. The Outsourcing Incentives Can Be Fixed: In February 2018, Sen. Sheldon Whitehouse (D-R.I.) and Rep. Lloyd Doggett (D-Texas) introduced the No Tax Breaks for Outsourcing Act, which would eliminate the GOP tax bill’s incentives for outsourcing by equalizing tax rates on domestic profits and foreign profits.

Acosta Refuses To Commit to Preserving OSHA Recordkeeping Rule

Friday, April 13th, 2018

In a hearing before the Senate Appropriations Committee today, Secretary of Labor Alex Acosta today refused to commit not to rescind OSHA’s electronic recordkeeping rule. The rule, issued in 2016, requires employers to send injury and illness information into OSHA and prohibits employers from retaliating against workers for reporting injuries.

The electronic recordkeeping rule has three major parts, two of which are in effect.

First, it required employers to send in a summary of their injury and illness data (form 300A (Summary of Work-Related Injuries and Illnesses) by December 15. A second submission (including information on Form 300 and Form 301), providing more detail about how workers were injured, was scheduled to be submitted later this year. Finally, the rule prohibits employers from retaliating against workers for reporting injuries or illnesses.  OSHA’s intent when the rule was issued was to public post on its website the individual employer data to ensure that workers and the public were aware of companies’ health and safety record. No confidential or personally identifiable information would be submitted to OSHA or posted publicly.

Over the past year, Trump’s OSHA as announced that it’s working on revising the rule. While it had been assumed that the Trump administration was mostly interested in repealing the requirement to send in the more detailed data, rumors have been circulating that an effort is being made to repeal the entire rule.

Yes or No?

Senator Tammy Baldwin (D-WI) asked Acosta at this morning’s hearing whether Acosta thought it was important for OSHA to have access to accurate injury and illness data in order to target its limited resources to the most dangerous resources.

After agreeing that such data was in fact important, Acosta was asked whether he planned to rescind the rule, yes or no?

Acosta responded that “Yes or no answers are somewhat difficult on this,” but “it is also important to respect he privacy of individuals and employees” and then, without answering Baldwin’s question, proceeded to filibuster the time with a long discussion about the non-existent issue of confidentiality.

In short, “yes or now answers” should not difficult in this case, nor is confidentiality a real issue.

First, the deadline for sending in the summary data on OSHA form 300A has already passed (although a large number of employers failed to comply), and as is evident from the form, there is no private data about any individuals.  The more detailed information was to be sent to OSHA by July 1, 2018, but that date has been delayed indefinitely while OSHA determines how to modify the regulation.

While employers do include Personally Identifiable Information (PII) on their in-house forms 300 and 301, that information was not required to be submitted to OSHA or would have been automatically scrubbed out of the submission. When the regulation was released, the agency announced that:

OSHA has effective safeguards in place to prevent the disclosure of personal or confidential information contained in the recordkeeping forms and submitted to OSHA. OSHA will not collect employee name, employee address, name of physician or other health care professional, or healthcare facility name and address if treatment was given away from the worksite.  All of the case specific narrative information in employer reports will be scrubbed for PII using software that will search for, and de-identify, personally identifiable information before the data are posted.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule because they’re afraid that if OSHA collects injury or illness information about companies’ health and safety record, the companies’ information — not the PII — will eventually be publicly released. And that won’t look good for those companies with poor health and safety records. Transparency is great — unless it hurts your bottom line.

In addition, as Baldwin suggested and Acosta acknowledged, the injury and illness data would be used to enable OSHA to target the most dangerous industries. Now that makes sense. OSHA is a tiny agency able to visit only a very small number of workplaces each year, so it makes sense that those inspections focus on the most high hazard industries, and the most dangerous companies within those high hazard industries.  No one wants to waste OSHA’s time, the taxpayer’s money, or an employer’s time inspecting a company that’s doing everything right. If possible, you want to use the data to get to those companies that are putting workers at risk.

But of course, if you happen to be one of those companies whose putting workers at risk, or a company in a high hazard industry, maybe you’re not so interested in OSHA targeting your industry. Better they waste their time wandering around aimlessly, reducing even further the small chance that you’ll ever be inspected.

So could Acosta have said “No, the rule will not be repealed, although as we have already announced, we’re working on modifying it?”  Yes.

Unless they’re really considering a complete repeal.

OSHA Inspections

Acosta proudly informed the Committee in his opening remarks that “The number of inspections conducted in 2017 increased year over year for the first time in five years despite OSHA’s suspension of enforcement activities to provide more compliance assistance and facilitate the provision of personal protective equipment during the hurricane recovery in areas affected by natural disasters this year.”

And, in fact, the number of inspections did increase by a few hundred in FY 2017.  A good thing? Yes and no.

I have nothing against increasing the number of inspections. Thirty-two thousand inspections is a small number considering the huge number of workplaces under OSHA’s jurisdiction, so the more the better.

But, there are some problems with that. Because how many inspections is not the only question. One must also ask what kind of inspections?  A little background:

Career government employees, and especially OSHA staff, are good soldiers. Give them a numerical goal and if at all possible, they’ll meet it by hook or by crook. So if the Secretary of Labor demands that you increase the number of inspections, even though a hiring freeze has caused critical staffing shortages, you go for the short, easy inspections — usually a lot of short construction inspections. And you spend a lot of time out in the field inspecting at the end of the Fiscal Year, and then stay in the office and do all the paperwork at the beginning of the next Fiscal Year.

During the Obama administration, we decided to do something a bit different. We decided to prioritize the type and quality of inspections over the pure number. Because if you’re focusing on short easy inspection to get some numbers up on the board, you may be neglecting the more complex investigations that may be more significant in the big picture — workplace violence, ergonomics, chemical plant inspections — those that may take a long time but are important to do.   We did this by counting “enforcement units” instead of just the number of inspections, and assigning more “enforcement units” to the more difficult inspections so that inspectors or offices wouldn’t be penalized for taking on the more difficult projects.

So I find Acosta’s emphasis on numbers to be ironic, because the typical Republican criticism of OSHA is that it plays a “gotcha” game — just putting citations up on the board. Which is exactly what this administration seems to be doing.   And I understand it. It certainly plays better in Congress to say you did more inspections than that Democrats.

They are the laws of the land. They need to be enforced. — Alex Acosta

The good news is that Acosta again emphasized the importance of enforcement when asked by Committee Chairman Roy Blunt why the Administration had recommended flat budgets or slight increases for DOL enforcement agencies. Acosta responded that

Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced. The men and women of the Department of Labor need the resources to enforce them  Over time even if budgets remain flat, life gets more expensive. And so we’ve asked for slight increases to continue the efforts that we’ve done this year. Because as I’ve said, enforcement matters.

Hard to argue with those words.

Tipping Over

Finally, as I mentioned the other day, the fireworks over Acosta’s tipping ruleallowing employers to steal servers’ tips evaporated when Congress included a bill prohibiting tip stealing in the FY 2018 budget bill. Acosta had come under withering attack for not including a damaging economic analysis in the proposal that would have estimated how much money servers would have lost.

But the fix passed in March and everyone congratulated each other and patted each other on the back and sang Kumbaya over this great (and rare) example of everyone working together in perfect harmony.

But Acosta couldn’t quite let it go. He needed to “just put it on the record…”

Taking up the Chairman’s offer for a few parting words at the end of the hearing, Acosta reminded everyone that when the original regulation was issued in 2011, the Obama administration also didn’t include an quantitative economic analysis. (Which was not required because the 2011 version did not make any changes in current practice.) He then went to great lengths to explain again how complicated an analysis was and how they could have made some “wildly crazy” assumptions to come up with a number, but that wouldn’t have served the public interest and Obama did the same thing no one got upset, so that’s “indicative of an unfortunate state of affairs that we’re at,” and anyway employers wouldn’t have kept tips anyway because no one would eat there and employees would walk out  but that’s why I’m happy that we all worked together and we had a happy ending.

And to all a good night.

This blog was originally published at Confined Space on April 12, 2018. 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).

Tesla Workers Say Elon Musk is a Union Buster. The NLRB Just Gave Their Case a Boost.

Thursday, April 12th, 2018

Tesla factory workers have been trying for months to win restitution for the company’s alleged union-busting and harassment. Now, a National Labor Relations Board (NLRB) complaint against the company appears to be making strides.

Last August, the NLRB filed a complaint against Tesla after finding merit in a number of accusations from employees at its Fremont, California factory. Some Tesla factory workers say the company engaged in various forms of union-busting, through harassment and surveillance. They also claim that Tesla required them to sign a confidentiality agreement which prohibited them from discussing the details of their working conditions.

On March 30, the NLRB amended the complaint to add new allegations from workers which the board found to have merit. In the new claims, Tesla workers say the company investigated them after they posted information on a pro-union Facebook page.

The case has now been scheduled to go before an NLRB administrative law judge in June. After hearing the case, the judge will issue a decision and recommended order. The fact that the complaints were deemed to have merit, and that workers will have their concerns heard, constitute significant developments in the case.

The amended NLRB complaint comes as Tesla, and its CEO Elon Musk, are being criticized for failing to live up to their production goals. After Tesla shares dropped last month, its engineering chief Doug Field sent an email to staff attacking people who doubted Musk’s vision. “I find that personally insulting, and you should too,” Field wrote in a March 23 email. “Let’s make them regret ever betting against us. You will prove a bunch of haters wrong.”

In an internal memo from March 21, the company also announced that a small number of “volunteers” would be brought in to help assist with Tesla’s Model 3 line. After Bloomberg reported this fact on March 29, Tesla informed the outlet that volunteer shifts would only take place on one day, while production of the company’s Model X and S cars was stopped. Employees who regularly work on those models could either volunteer to work on the Model 3, take paid time off, or take unpaid time off that day.  “The world is watching us very closely, to understand one thing: How many Model 3’s can Tesla build in a week?” Field wrote in his email to staff. “This is a critical moment in Tesla’s history, and there are a number of reasons it’s so important. You should pick the one that hits you in the gut and makes you want to win.”

The working conditions of Tesla employees, and their organizing efforts, were brought to the public’s attention last February when Jose Moran, a production worker at Tesla’s plant in Fremont, published a Medium post criticizing the company’s hourly wages and high number of preventable work injuries. “Tesla isn’t a startup anymore. It’s here to stay,” wrote Moran. “Workers are ready to help make the company more successful and a better place to work. Just as CEO Elon Musk is a respected champion for green energy and innovation, I hope he can also become a champion for his employees.” In his piece, Moran mentions that Tesla workers had reached out to the United Auto Workers (UAW) for assistance with their unionizing efforts.

Workers at the Tesla factory say they were reprimanded by management for printing copies of Moran’s post and attempting to pass them out, along with information about the UAW. Three workers cited this action in the charges that became part of the August complaint from the NLRB. Workers also claim they were harassed for wearing UAW shirts. The updated complaint claims that two workers were investigated and interrogated by Tesla after they posted company information in a private Facebook group called “Fremont Tesla Employees for UAW Representation.” Last October, one of the employees was fired and the other was given a disciplinary warning. Tesla said it fired the employee after he admitted to lying about the incident during their internal investigation.

That same month, Tesla fired 700 of its employees without notice or warning, about 2 percent of its entire workforce. The UAW promptly filed a federal complaint against the company, claiming that some of the employees were fired because they were part of the unionization efforts. On a quarterly earnings call last November, Elon Musk defended the firings and called criticisms of them “ridiculous.” He pointed to Tesla’s supposedly high standards for performance. “You have two boxers of equal ability, and one’s much smaller, the big guy’s going to crush the little guy, obviously,” said Musk. “So the little guy better have a heck of a lot more skill or he’s going to get clobbered. So that is why our standards are high. They’re not high because we believe in being mean to people. They’re high because if they’re not high, we will die.”

Last November, the UAW filed another complaint against Tesla. This one concerned its Gigafactory battery plant in Nevada. The filing, which was obtained by Jalopnik via an FOIA request, charges Tesla with intimidating, surveillance, and interrogating employees who participated in union organizing. The NLRB consolidated these charges into the ongoing complaint.

Earlier this month, Tesla released the following statement regarding the amended NLRB complaint: “These allegations from the UAW are nothing new. The only thing that’s changed since the UAW filed these charges is that many of the allegations have been outright dismissed or are not being pursued by the NLRB. There’s no merit to any of them.”

Legally, Tesla has to respond to the newest round of complaints by April 13. The case will go before an administrative judge on June 11.

This article was originally published at In These Times on April 12, 2018. Reprinted with permission. 

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

Massachusetts Moves Forward on Protecting Public Employees. But millions remain without protection.

Wednesday, April 11th, 2018

Question 1: What did the following workers have in common?

Mercer County village worker killed in industrial accident

MENDON, MERCER COUNTY, OH — A Village of Mendon employee was killed in an industrial accident Thursday at the village utility department, Mercer County Sheriff Jeff Grey said. Brendan Poling, 49, had climbed inside the bed of a dump truck carrying salt and it appeared he slipped into a salt auger, where another village employee discovered him, the sheriff said in a prepared statement released tonight.  Deputies were dispatched to the utility department, 340 E. Market St., just after 11:30 a.m. for a male stuck in an auger.  Poling, who was a Mendon resident, died at the scene, the sheriff said.  No word on whether the Occupational Safety and Health Administration has been contacted. OSHA, part of the federal labor department, usually investigates industrial accidents.

Omaha public works employee, who died on the job after being struck by car, remembered as a leader

PennDOT worker killed in I-99 crash

LOGAN TOWNSHIP, PA — State police at Hollidaysburg are investigating a fatal crash involving a vehicle and pedestrian Saturday along Interstate 99 southbound, north of Kettle Road in Logan Township. Officials say PennDOT employee Robert Gensimore, 45, of Spruce Creek, was setting up flares at 3:41 p.m., warning drivers of a crash scene on I-99.

Longtime CDOT employee dies after vehicle hits him while on the job

Pagosa Springs, CO: A 14-year Colorado Department of Transportation employee died Sunday, several days after he was hit by a passing vehicle while working on a southwest Colorado highway. Nolan Olson, an accomplished 64-year-old equipment operator, was filling potholes on U.S. 160 in Pagosa Springs on Feb. 2 when he was hit and severely injured. He was transported to St. Anthony’s Hospital in Lakewood and died nine days later.

‘He was a good man’ | GDOT worker killed while out treating roads for ice

Atlanta, GA — He had joined the DOT in the 90s and was working long hours before the accident happened. A Georgia Department of Transportation worker who lost his life while working to treat the roads for ice earlier in the week was not just a hard worker, but a loving father and grandfather. Carey Byron Ellerbee, 60, tragically lost his life on Thursday, January 18, after the GDOT truck he was driving was struck by a CSX train on Monday. Kenny Coggins, Ellerbee’s cousin, says that the intersection where Ellerbee lost his life has ‘awful visibility’ and that there are no warning lights or even an arm to stop traffic from crossing the train tracks for an oncoming train.

Arkansas City identifies man killed in Thursday accident

Arkansas City, KS —  Arkansas City officials have identified the employee who died in a workplace accident Thursday afternoon. 53-year old Marc A. Tapia sustained critical injuries on Thursday afternoon at the Public Works central shop. He died later that evening at Wesley Medical Center in Wichita. Tapia had been employed by the City as a public services maintenance worker for nearly 2 1/2 years. He was operating a a street sweeper vehicle when the accident occurred.

Second Massachusetts worker dies while clearing snow

Boston, MA — Massachusetts officials say a second worker died Monday due to snow removal stress while on the job. David Jones, 61, died after clearing snow for the Douglas Public School district, according to the Massachusetts Coalition for Occupational Safety and Health. Jones’ death marked the second snow-related death in less than four days in the Bay State. On Jan. 5, Gordon Van Russell collapsed and died while shoveling snow for the Massachusetts Water Resources Authority in Arlington.

South Effingham employee dies after school mishap

Guyton, GA — Bill Bishop, a popular nine-year school employee, sustained head trauma after falling approximately 12 feet while preparing the South Effingham gym for the Dec. 15 basketball contests against Effingham County. Bishop was rushed to Savannah’s Memorial University Medical Center. He died Sunday morning.

Answer: All of them were public employees and none of them had the right to a safe workplace or come home alive and health at the end of the workday. It’s unlikely that their deaths (or injuries) will be investigated or that anyone will be held accountable, not matter how flagrant the violation of federal or industry safety standards. 

Question 2: What did the employees below have in common?

Modesto employee killed while working on streetlight

Modesto, CA — A city of Modesto employee suffered a fatal injury while working on a streetlight late Monday morning. Tyrone Hairston, 30, was doing maintenance at the intersection of Floyd and Roselle avenues when the accident occurred. Information on what exactly happened is being investigated, a city spokesman said. An administrator on the Modesto/Stanislaus County Neighborhood Watch page on Facebook said the worker “was electrocuted, transported to the hospital, but they could not save him.”

Sterling DCFS worker beaten in September dies in Chicago hospital

CHICAGO, IL  – The Sterling DCFS worker severely beaten Sept. 29 while picking up a child in Milledgeville died this morning at a Chicago hospital, a local union official and friend of the family said. Pamela Sue Knight was 59. Before the surgery, Knight, who no longer could speak, was working with therapists to communicate using eye movements, and was able to answer questions that way. She also was undergoing physical therapy to help her regain movement in her arms and legs. Andrew Sucher, 25, of Rock Falls, was indicted Dec. 7 on charges of attempted first-degree murder, which carries at least 6 to 30 years in prison, aggravated battery causing great bodily harm, and aggravated battery of a state employee, each of which carries 2 to 5 years in prison. He’s accused of kicking Knight in the head so severely that he fractured her skull, causing permanent brain damage that also led to her extensive physical disabilities. Knight had arrived at Sucher’s parents’ home in Milledgeville to take a 2-year-old boy into protective custody when she was attacked.

GoFundMe page set up for Prince William school bus driver killed Monday

Manassas, VA — Richard Lee Proffitt, the Manassas man killed in an accident this week at Prince William County schools’ transportation lot in Bristow, was part of a family of school bus drivers. Proffitt, 62, had been driving a school bus since 2010.  His wife, Laura, and his adult daughter, Caitlin Weaver, are also employed as bus drivers for Prince William County schools, Weaver said this morning.

Employee falls from ladder, dies at Chaska school

Chaska, MN — A buildings and grounds employee working at a Chaska middle school fell off a ladder and died Monday morning, a spokesman for the Eastern Carver County School District confirmed. Daniel Buesgens was attempting to repair a heater in a maintenance room of the district’s recently opened domed athletic center adjacent to Chaska Middle School East. Buesgens fell off an 8-foot ladder in a room that is not in a public area of the building sometime after 8 a.m. and was found by another school employee, said spokesman Brett Johnson.

Man Killed Loading Road Salt at Kentucky Facility Identified

LOUISVILLE, Ky. (AP) — A coroner’s office has identified a Kentucky worker who was killed while loading road salt into a maintenance facility. The Jefferson County coroner’s office tells media outlets that 52-year-old Trent Haines of Louisville died from blunt force injuries last Wednesday. The death has been ruled an accident. Louisville Public Works spokesman Harold Adams said Haines and another worker were loading salt on a dome conveyor at a road maintenance facility when they got caught up in a machine.

65-year-old SC DOT worker dies after slipping, falling on snow and ice

BERKELEY COUNTY, S.C. (WCBD) – The Berkeley County Coroner’s Office has released the identity of the South Carolina Department of Transportation worker who died after slipping and falling on ice and snow on Friday, January 5. According to Coroner Bill Salisbury, the victim is Clyde McCants, 65, of Bonneau. Authorities say the incident happened in the DOT parking area while he was at work. Medics transported McCants to a local hospital where he died on Tuesday, January 9. An investigation conducted by the Berkeley County Coroner’s Office found the death was accidental and he died from head trauma.

Answer:  All of them were public employees, but all of them did have the right to a safe workplace and the right to come home alive at the end of the workday. Their deaths will be investigated, if federal or state standards were violated, the employer will be held accountable.

So what’s the difference. Why do some deserve to live and others to die?

Ohio, Nebraska, Pennsylvania, Colorado, Kansas and Geogria are six of of twenty-four states in the country where public employees are not covered by OSHA. That means that almost 50 years after the Occupational Safety and Health Act was passed, eight million public employees in this country still do not have the right to a safe workplace.  Doesn’t matter if you work with heavy equipment on highways, or in mental health institutions or in prisons or in wastewater treatment plants. Doesn’t matter that public employees in many sectors have higher injury and illness rates that private sector employees doing the same job.

You’re just out of luck. You’re a second class citizen without the basic human right to come home healthy and alive at the end of the work day.  The Occupational Safety and Health Act, passed in 1970, did not cover public employees.  But there were two options for public employee protections. First, if a state chose to run its own program (an OSHA State Plan program), the law requires the state to cover public employees. Twenty-one states and Puerto Rico do that.

The law also gave states the option to let the feds continue to cover private sector employees while the state would adopt an OSHA “Public Employee-only” state plan that would be half funded by federal OSHA. Only 5 states (Connecticut, New Jersey, New York, Illinois and Maine) as well as the Virgin Islands have taken advantage of that opportunity, leaving public employees in 24 states without the right to safe workplace.

The thing that really pisses me off is that despite the fact that the Occupational Safety and Health Act didn’t cover public employees when it was passed in 1970, it did give states options for providing coverage. The twenty-one state plans states that cover private sector employees are required to also cover public employees in their states.  States that don’t have state plans also have the option of adopting a “public employee only” OSHA plan, where the feds would cover the private sector and states would cover the public sector. Funding for the public sector coverage would be matched by federal OSHA.

Only five states have taken advantage of this option over the past 50 years — Connecticut, New York, New Jersey, Illinois and Maine. The other twenty-four states? Public employees remain second class citizens — public servants like Brendan Poling, Salvatore Fidone, Robert Gensimore, Nolan Olson, Carey Byron Ellerbee, Marc A. Tapia, David Jones and Bill Bishop — apparently ready to die for their city or state.

And it’s not because public employment is safer:

Almost 500 government employees died in the workplace in 2016, “with a 9-percent decrease in federal employee fatalities that was more than offset by increases in state and local government fatalities, up 20 percent and 13 percent, respectively,” according to the Bureau of Labor Statistics. Public employees are 47% more likely to be injured on the job than private sector employees, and the injury and illness rate for nurses in state facilities in 13.7 per 100,000 compared with 3.2 for the average private sector worker.

Workplace violence events disproportionately occur among public employees.  752,600 state and local government workers nationwide were injured or made sick in 2015, for a total of nearly 3.7 million reported work-related injuries and illnesses.The incidence rate of injuries caused by workplace violence was more than 675% higher for state government workers (31.2 per 10,000 workers) than the rate for private industry workers (4.0). The incidence rate of violence for local government workers (23.0 per 10,000 workers) was 475% higher than for private industry workers.

Massachusetts Takes A Major Step Forward

But there is a somewhat acceptable third option that some states have taken advantage of. Massachusetts just passed a law providing OSHA coverage to the states public employees.

Massachusetts Coalition For Occupational Safety And Health (MassCOSH) Executive Director Jodi Sugerman-Brozan has called the bill “a historic victory for workers in the state.” After the bill was sent to Baker’s desk on March 1, Sugarman-Brozan said, “Over the coming years, untold number of lives will be saved because OSHA protections will now cover thousands more workers.”

The new law will apply enhanced safety standards for 428,510 public sector workers, according to MassCOSH, a union-backed worker safety advocacy group. Between 2005 and 2016, 52 municipal workers were fatally injured at work in Massachusetts, according to MassCOSH.

The reason I sound a bit hesitant, and call this a “third option” is that this is not an “OSHA approved” public employee program.

Why is that bad? OSHA approved programs are required states to commit to a certain funding level, number of employees and number of inspections every year, and to comply with OSHA’s policies and procedures regarding enforcement of the law. OSHA is required by the law to ensure that the states’ standards and enforcement procedures are “at least as effective” as federal OSHA’s.

H.B. 3952 states that “Public employers shall provide public employees at least the level of protection provided under the federal Occupational Safety and Health Act of 1970 including standards and provisions of the general duty clause” and also establishes an Advisory Board that will include “five members of public employee unions and a representative from a community-based health and safety advocacy organization.”  The Board will “evaluate injury and illness data, recommend training and implementation of safety and health measures, monitor the effectiveness of safety and health programs and determine where additional resources are needed to protect the safety and health of public employees.”

The only mention of an enforcement procedure is that “The attorney general may bring a civil action for declaratory or injunctive relief to enforce this section.”  Now I’m not an attorney, but if these means that the Massachusetts Attorney General needs to file an injunction against each employer found to be in violation of OSHA standards, that could be somewhat cumbersome, given procedures, staff and resources. And there’s nothing in the law itself that mentions resources or budget.   Other states, such as Wisconsin, have similar laws, but no federal oversight over their budget or procedures.  Some run fairly well, and others exist mostly on paper.

Nevertheless, it’s a good thing that the state has taken this step and I’m optimistic that Massachusetts public employee unions and MASSCOSH can hold the state to its promise, and hold out hope for a federally approved program in the future. The state of Maine, for example, had its own, non-federally approved program for many years, before it applied for, and eventually gained initial OSHA approval of its program in 2015.  Other states should follow Massachusetts’ example.

And Finally…

And finally, here is the story of a very lucky employee of the city of Oakwood, Ohio, Charles Rohrback, who was happily rescued after being stuck over 6 feet down in a trench that collapsed on top of him. The news reporter asks at the end: “The big question:  How did this trench collapse?”

But actually, that’s not the “big question.” The answer to that is easy. The trench collapsed because it was too deep and not shored.

The “big question” is why the law in Ohio allows workers to legally risk their lives going down into deep, unprotected trenches that would violate the law if it had been done by a private sector company? And why 24 states and the US Congress continue to let public employees die in conditions that would have been illegal if they had been private sector workers.

Every year for the past 15 years, Democrats in the House and Senate introduce the Protecting American Workers Act that would, among other things, provide coverage for all public employees. The most recent version (S. 2621), introduced March 22 by Sen. Tammy Baldwin (D-WI) in the Senate, and Rep. Joe Courtney (D-CT) in the House (HR. 914).

I don’t hold out much hope of that this legislation will pass anytime in the near future. But until it does, or until every other state follows the example of Massachusetts and Maine, public employees will continue to be treated as second class citizens whose lives are expendable.

This blog was originally published at Confined Space on April 10, 2018. 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). 

11 Things You Need to Know on Equal Pay Day

Tuesday, April 10th, 2018

Equal Pay Day calls attention to the persistent moral and economic injustice working women face. For a woman to earn as much as a man, she has to work a full year, plus more than a hundred extra days, all the way to April 10. The problem is even worse for women of color, LGBTQ women and part-time workers.

Here are 11 things you need to know on Equal Pay Day:

1. Equal Pay Day for women of color is even later: For black women, Equal Pay Day comes later because they are paid, on average, even less than white women. Equal Pay Day for black women is Aug. 7. For Native American women, it’s Sept. 7. For Latinas, it’s Nov. 1.

2. LGBTQ women face a host of related problems: A woman in a same-sex couple makes 79% of what a straight, white man makes. Additionally, they face higher rates of unemployment, discrimination and harassment on the job.

3. It will take decades to fix the problem if we don’t act now: If nothing changes, it will take until 2059 for women to reach pay equality. For black women, parity won’t come until 2124 and for Latinas, 2233.

4. Fixing the wage gap will reduce poverty: The poverty rate for women would be cut in half if the wage gap were eliminated. Additionally, 25.8 million children would benefit from closing the gap.

5. Fixing the wage gap would boost the economy: Eliminating the wage gap would increase women’s earnings by $512.6 billion, a 2.8% boost to the country’s gross domestic product. Women are consumers and the bulk of this new income would be injected directly into the economy.

6. Women aren’t paid less because they choose to work in low-paying jobs: The gender pay gap persists in nearly every occupation, regardless of race, ethnicity, education, age and location.

7. Education alone isn’t the solution: Women are paid less at every level of education. Women with advanced degrees get paid less than men with bachelor’s degrees.

8. The Paycheck Fairness Act would help: This bipartisan legislation would close loopholes in existing law, break harmful patterns of pay discrimination and strengthen protections for women workers.

9. Being in union makes a difference: Women who are represented by unions and negotiate together are closer to pay equality, making 94 cents per dollar that white men make.

10. Business leaders have a role in the solution: Individual business owners and leaders have the power to close the pay gap and improve people’s lives. Catalyst offers five tips on what business leaders can do.

11. Many companies already are working on solutions: Learn from them.

Kentucky lawmakers put decisions on black lung treatments in hands of industry-paid doctors

Monday, April 9th, 2018

The political assault on science in the age of Trump has reached a point where even medical specialties are rising up in protest. Radiologists are fighting back against a new Kentucky law that excludes them from the black lung claims process for coal miners in the state.

Under the new legislation, if a miner files a black lung claim with the state, only a federally licensed pulmonologist can review the X-rays and ultimately make a diagnosis. Previously, radiologists could offer a diagnosis as well.

The legislation, part of a larger workers’ compensation bill signed into law by Kentucky Gov. Matt Bevin (R) on March 30, is expected to make it more difficult for coal miners stricken with black lung disease to receive benefits for treating their disease and living with black lung. The workers’ compensation bill was supported by the Kentucky Chamber of Commerce and the Kentucky Coal Association. Labor groups strongly opposed it.

The American College of Radiology, a national organization representing more than 38,000 radiologists, said it is troubled that Kentucky lawmakers stepped in to determine who is qualified to read the X-rays of coal miners seeking compensation for black lung disease. A process is already in place to determine whether a physician is qualified to review black lung cases, the group said.

“To have that established process superseded by legislators and a political process is inappropriate,” American College of Radiology Chief Executive Officer William Thorwarth Jr. M.D., said in a statement emailed to ThinkProgress on Monday.

Thorwarth emphasized that politics should be left out of the black lung claims process. “We hope that the Kentucky legislature will rescind this new law and work with medical providers to save more lives,” he said.

Phillip Wheeler, an attorney in Pikeville, Kentucky who represents coal miners seeking state black lung benefits, said it’s possible the new law could be overturned on appeal. The law applies the rule only to workers who file claims for black lung and not workers in other industries who file benefit claims, Wheeler said Monday in an interview with ThinkProgress.

An appeals court could find that the law violates the constitutional guarantee of equal protection under the law by limiting the type of doctors who can be used in black lung cases, while workers in other occupations aren’t subjected to the same limits when they apply for worker’s compensation benefits.

The new law also could prove problematic because it drastically reduces the number of physicians in Kentucky permitted to read the chest X-rays when coal miners file a black lung claim, Wheeler said. Six doctors in Kentucky will now be eligible to conduct the exams, according to an NPR review of federal black lung cases. At least half of them “have collected hundreds of thousands if not millions of dollars form the coal industry over the last 25 to 30 years,” Wheeler said.

“The three primary doctors that will be doing most of these exams have shown a distinct bias against coal miners through the years,” he said.

Physicians who read chest X-rays for work-related diseases like black lung — also called coal workers’ pneumoconiosis — are known as “B readers” and are certified by National Institute for Occupational Safety and Health for both federal and state compensation claims. B readers do not specifically have to be pulmonologists or radiologists, though they can be both.

Black lung is common term for several respiratory diseases that share a single cause: breathing in coal mine dust. Over time, black lung disease causes a person’s lungs to become coated in the black particulates that miners inhaled during their time in the mines. Their passageways are marked by dark scars and hard nodules.

The Kentucky Coal Association “basically drafted the legislation,” Wheeler said, explaining why the new law will likely make it more difficult for miners to win black lung claims cases.

The new Kentucky law coincides with the Trump administration’s decision to examine whether it should weaken rules aimed at fighting black lung among coal miners, a move the administration says could create a “less burdensome” regulatory environment for coal companies.

President Donald Trump pledged to end the so-called war on coal but has thus far done nothing to help coal miners who have spent years working in mines win black lung benefits.

Likewise, Kentucky lawmakers are showing a preference for industry profits over occupational health. Evan Smith, an attorney at the Appalachian Citizens’ Law Center in Kentucky, said in a tweet that the new law will keep the state’s coal miners from using “highly qualified and reliable experts to prove their state black lung claims.”

The law “looks like just another step in the race to the bottom to gut worker protections,” Smith said.

Black lung has made a comeback in recent years. The disease now sickens about one in 14 underground miners with more than 25 years’ experience who submit to voluntary checkups, according to a recent study, a rate nearly double that from the disease’s lowest point from 1995 to 1999.

Kentucky is one of the states that has witnessed the resurgence in the most advanced form of black lung disease, which is debilitating and deadly.

Lawmakers included the provision in the new worker compensation law even though radiologists are considered to be the most qualified among doctors certified to diagnose black lung disease.

State Rep. Adam Koenig, a Republican who represents a district in northern Kentucky, sponsored the legislation. He told NPR that, when writing the law, he relied on the expertise of those who understand the issue — “the industry, coal companies and attorneys.”

This article was originally published at ThinkProgress on April 9, 2018. Reprinted with permission. 

About the Author: Mark Hand is a climate and environment reporter at ThinkProgress. Send him tips at mhand@americanprogress.org

Most Americans think teachers are underpaid. Here's the graph that shows how right they are.

Friday, April 6th, 2018

Are teachers underpaid? Teacher pay has been in the news recently as a wave of teacher walkouts and strikes has hit red states like West Virginia, Oklahoma and Kentucky, and a recent CBS News poll found that most people say yes. Overall, 68 percent of people said teachers were underpaid, but there were striking regional differences, with just 60 percent of people in the northeast agreeing while 76 percent in the south said so. Turns out, whatever state you live in, if you think your state’s teachers are underpaid, you’re right. An Economic Policy Institute analysis shows that:

Over the last two decades, teachers are contributing more and more toward health care and retirement costs as their pay falls further behind. Teacher pay (accounting for inflation) actually fell by $30 per week from 1996 to 2015, while pay for other college graduates increased by $124. In short, the teacher pay gap—the difference between what teachers earn in weekly wages compared with similarly educated and experienced workers—has widened significantly. Even when accounting for benefits, the teacher compensation gap increased by 9 percentage points, to 11.1 percent over that same time frame.

Teacher pay gaps vary considerably across the United States as indicated in the figure.1 The figure below shows within-state ratios of public school teachers to other college graduates. The ratio for the overall United States is 0.77, meaning that, on average, teachers earn just 77 percent of what other college graduates earn in weekly wages. Arizona (0.63) has the lowest ratio (the largest pay gap), while Wyoming (0.99) has the highest ratio (the smallest pay gap).

Check out how your state’s teachers are doing on the graph below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This blog was originally published at Daily Kos on April 5, 2018. Reprinted with permission.

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

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