Outten & Golden: Empowering Employees in the Workplace

Archive for October, 2018

Hawaiian hotel workers want better pay for state’s high cost of living

Wednesday, October 17th, 2018

Thousands of Marriott hotel workers in Hawaii say they want better wages, sexual harassment protections, and a promise not to be replaced by automation. They have been on strike for more than a week, but it doesn’t appear the strike will end anytime soon.

Hotel workers who are members of Unite Here Local 5 have been working without a contract since July and voted to authorize a strike in September, Hawaii Public Radio reported. They have been picking outside of five hotels managed by Marriott and owned by Kyo-Ya Hotels & Resorts, but neither company has tried to schedule new bargaining dates with the union. A week ago, Unite Here Local 5 and Kyo-Ya Hotels & Resorts reached an impasse on negotiations, according to the Associated Press. Hotel workers at two additional hotels could go on strike at any time, since they also voted to authorize strikes.

Workers have been holding signs that read “One job should be enough,” which means pay should keep up with the cost of living, that people should be able to support families with their paychecks from one job, and that they should be able to “retire with dignity,” according to the workers’ labor union Unite Here. It also refers to what workers say is an expectation that hotel workers do the work of two people.

Marriott hotel workers went on strike in eight cities across the country last week, including San Francisco, Boston, Oakland, Detroit, San Diego, and Oahu and Maui in Hawaii. In Hawaii, 2,700 Marriott hotel workers are on strike. Like the hotel strike in Chicago, this strike includes workers from a variety of positions, such as doormen, front desk attendants, restaurant workers, and housekeepers. In Chicago, workers who are part of the Unite Here Local 1 union mainly focused on year-round health care and hotel strikes included a number of hotel brands, including Hilton and Hyatt. Workers at only one hotel are still on strike after five weeks. The union has settled 25 contracts that give workers year-round health insurance.

Kyo-Ya Hotels & Resorts released a statement Friday that said they are “committed to continuing our good faith bargaining.”

But Michael Kirby, a member of Local 5, told The Maui News that the company needs to address workers’ specific demands.

“I understand that Kyo-ya wants to welcome the workers back. They haven’t set a date to do any kind of contract negotiations,” Kirby told the publication.

Tourism officials are worried the strike could continue into 2019 and current and former hotel and travel industry executives say they’re worried about bookings, the AP reported. Visitors staying at the striking hotels have also complained about their stays, which included closed pools, no food and bar services, uncleaned bathrooms and a lack of clean towels, to name a few issues. Some people have asked for full and partial refunds as a result, Hawaii News Now reported.

Pay that properly covers housing is a big issue for hotel workers in Hawaii. Home values for someone living in Hawaii are very high, at a $617,400 median home value and a median rent of $1,573. The state has had the highest median housing values in the U.S. since 2007. Housekeepers made $22.14 per hour under their old contract. Paola Rodelas, spokesperson for the union, told Travel Weekly that this wage isn’t sufficient for hotel workers in the state. According to the National Low Income Housing Coalition, a Hawaii worker would have to make at least $36.13 an hour to afford a two-bedroom apartment. Looking at Honolulu specifically, a worker would need to make $39.06 to afford a two-bedroom apartment.

Rodelas told Travel Weekly, “For our workers, the most important issue is to make one job enough to live in Hawaii. It has to do with wages and benefits, but it also has to do with a range of issues. It also encompasses job security, automation and technology in the workplace, the increasing use of subcontractors and outsourcing, which is a big issue in Hawaii, and workplace safety. Housekeeping is back-breaking work and there are rampant issues of sexual harassment in hotels. We want to make sure there are adequate staffing and safety procedures.”

This article was originally published at ThinkProgress on October 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.

'One job should be enough,' striking Marriott workers say

Tuesday, October 16th, 2018

Thousands of Marriott hotel workers are on strike in eight U.S. cities in a campaign with the slogan “one job should be enough.” The workers’ union points out that Marriott’s profits have risen by 279 percent since the great recession, while worker pay has gone up only seven percent. “As the largest hotel employer in the world, Marriott can set the standard in the hotel industry,” they write, and that standard should be that one job is enough.

Workers are on strike in Boston, Detroit, Oakland, San Diego, San Jose, San Francisco, Maui, and Oahu, pressing for contracts that pay them a living wage as well as improving workplace safety through panic buttons for housekeeping staff and a reduction in some of the most grueling physical labor—hotel housekeepers have a very high rate of injury on the job. Workers are also worried about automation and other labor reduction efforts by the company.

Yleine, a room attendant in Vancouver, says in a video that “I’m doing two different jobs because I’m not getting enough hours in my hotel, and don’t have enough time to look after my son. I feel like, still, I can’t make it.”

In Hawaii, other unions got behind the strike, with flight attendants, sheet metal workers, and others moving their business away from Marriott hotels.

This blog was originally published at Daily Kos on October 13, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.

Thousands of Amazon Delivery Drivers Won’t Be Eligible for the $15 Wage

Monday, October 15th, 2018

Amazon’s announcement raising its entry-level wage to $15 an hour for all employees has been lauded as an inspiring example of corporate responsibility. In response to sharp criticism and threatened legislation from Sen. Bernie Sanders (I-Vt.) over low pay and horrid conditions at Amazon warehouses, CEO Jeff Bezos said: “We listened to our critics, thought hard about what we wanted to do, and decided we want to lead.”

But thousands of workers delivering your Amazon packages won’t be eligible for that $15 entry-level wage. Across the country, thousands of workers wear Amazon uniforms, use Amazon equipment, and work out of Amazon facilities, but are not classified as Amazon employees. They work for third parties known as delivery service partners (DSPs). It’s just one way Amazon manages the burden of getting billions of packages each year into the hands of its customers.

Amazon has confirmed that these third-party DSPs are not covered by its new wage standard.

Not only will drivers delivering for Amazon be deprived the pay levels of other Amazon employees, but in one notable instance, they were cheated out of wages by a DSP that violated state and federal labor laws.

A federal judge ruled in August that as many as 757 hundred delivery drivers with one DSP on the East Coast were robbed of overtime pay through falsifying time sheet records. The workers have thus far been unable to collect the back pay—potentially millions of dollars— from the DSP or Amazon.

And workers at other Amazon DSPs describe similar practices. So while Amazon basks infavorable PR, it is simultaneously deeply implicated in routine wage theft.

“The face of Amazon.com

Tyhee Hickman of Pennsylvania and Shanay Bolden of Maryland, lead plaintiffs in the U.S. District Court lawsuit, worked for TL Transportation, a Mid-Atlantic regional delivery service. According to the lawsuit, TL literally calls its delivery drivers “the face of Amazon.com,” but those workers are not considered Amazon employees.

Hickman and Bolden’s stories make clear, however, that TL Transportation is merely a pass-through for Amazon. Hickman writes in a sworn statement that he was hired by TL in November 2016, only to report to Amazon’s warehouse in King of Prussia, Penn. for training. The trainer was an Amazon employee. All training materials included Amazon logos. Workers had to purchase and wear Amazon hats, shirts and jackets. Delivery vans had “Amazon” emblazoned on the side, and workers also used an Amazon proprietary device called a “Rabbit” to track routes and scan packages. The Rabbit can also call Amazon customers if they are absent during delivery.

According to Bolden, who worked out of Baltimore, Amazon assigned the routes, and drivers were supposed to call Amazon if they ran into difficulties with deliveries. But despite all this involvement, pay stubs reviewed by In These Times listed the employer as TL Transportation.

“People assume they’re interacting with an employee of a company if they’re wearing the company’s uniform,” says Celine McNicholas, director of labor law and policy at the Economic Policy Institute. “But the web of contracting makes it difficult to discern.”

“Running, running, rushing, rushing”

That TL Transportation subjected employees to wage theft isn’t really in doubt. In a sloppy, misspelled flyer (“WELCOM ABOARD, WE LOOK FORWARD TO WORKING WITH YOU”), employees were told that they would be paid “$160.00 per day based on 8 hrs regular and 2 hours overtime… if you finish early you will be paid of entire day.”
In other words, the time sheet would build in two hours of daily overtime, regardless of hours worked. Pay stubs reflected that. Falsifying time sheets in this manner is definitively illegal, as U.S. District Court Judge Gerald McHugh confirmed in his ruling against TL in August. “Overtime compensation must be specifically linked to the hours an employee actually worked,” McHugh writes.

TL kept to this day rate, with the built-in overtime, regardless of how many days an employee worked. One of Bolden’s pay stubs showed a week where she worked all seven days, with 56 hours at the regular rate and 14 hours of overtime. She should have received 30 overtime hours that week.

In theory, workers could hope to finish deliveries early, earning the $160 day rate for less than 10 hours of work. But that was a pipe dream. Three workers who made sworn declarations and another interviewed by In These Times stated that they always worked more than 10 hours in a day, but were not paid additional overtime.

Hickman stated he would arrive to the Pennsylvania warehouse at 6 a.m. on workdays, attend required meetings with self-identified Amazon personnel, and not leave the warehouse until 9:30. That left him six and half hours to complete his delivery runs of 165 to 200 packages, sometimes as far away as Delaware. If Hickman brought back packages as undeliverable, he was sent back out to re-deliver them, adding more time to the day. Workers also had to inspect delivery vans on exit and re-entry and refuel them at the end of the day. Hickman testified he would usually return to the warehouse at 7:00 p.m., 13 hours after he arrived for work.

A former employee interviewed by In These Times on condition of anonymity, because he has not yet been deposed in the case, described how difficult it was to complete the runs: “It was like running, running, rushing, rushing,” he said. “If you don’t keep going you can’t finish in time.”

To keep up with the demanding schedules, workers were unable to fit in lunch or rest breaks; Hickman testified to having to urinate into bottles or on the side of the road to keep things moving. If workers did miraculously complete routes early, managers sent them back out to “rescue” other delivery drivers, by taking some of their packages. Regardless of the total hours worked in a week, the flat rate never changed.

The job was described as difficult, with rampant turnover. Hickman lasted five months; Bolden lasted seven. The former employee only lasted three. “I lost weight dramatically,” he says. “My wife told me, ‘You look so skinny.’”

The buck stops nowhere

These workers’ stories are broadly consistent with an investigation by Business Insider, which interviewed over 30 drivers with Amazon DSPs. But unlike other DSPs, TL Transportation never had workers sign contracts with a mandatory arbitration agreement, blocking their right to sue. Because it failed to do so, the plaintiffs sought lost and stolen wages in federal court.

Employers steal roughly $8 billion from worker paychecks per year, according to a 2017 studyfrom the Economic Policy Institute. But winning a wage theft ruling through summary judgment without trial, as the TL delivery workers did in August, is exceedingly rare.

Despite the court victory, no worker has yet been paid. TL, which continues to operate, says it lacks the funds to pay above the day rate. Amazon claims it has nothing to do with TL’s labor practices. Plaintiffs continue to battle it outin federal court.

TL’s co-owners Scott Foreman and Herschel Lowe, both named as defendants in the complaint, did not return phone messages asking for comment.

A second lawsuit, against a DSP named NEA Delivery, was filed in August in California, joining prior suits in IllinoisWashington stateand Arizona. But because every DSP is different, plaintiffs’ attorneys must go individually, company by company, to seek restitution for wronged workers. This has the added benefit of preventing Amazon delivery personnel from unionizing across the sector. Amazon has a longstanding policy of not commenting on pending litigation.

“This is nothing unique” among large corporations, said EPI’s McNicholas. “The reason companies do it is that it complicates the worker’s ability to hold their employer accountable.” In Amazon’s case, instead of offering a base wage of $15 an hour and a suite of benefits, it simply hires couriers like TL Transportation at a set rate per delivery and pleads ignorance about violations of labor law. The workers end up stuck, unable to win money owed them from fly-by-night third parties, and unable to challenge the corporate giant whose packages they actually deliver.

EPI’s McNicholas lays blame for the wage theft at the feet of Amazon, for setting up a system of free, rapid shipping. “It’s very difficult for these subcontracting firms to do business if they’re not cutting corners,” she says. “Amazon may say they set loose terms, but they’re instituting the framework that the subcontracting firms have to honor.”

Amazon outsources to hundreds of DSPs and encourages new delivery start-ups, promising that they can get to work within weeks and make up to $300,000 per year. “Logistics experience not required,” the company states on its website. Amazon has also tested several other systems for package delivery, from using the U.S. Postal Service, private competitors like UPS and FedEx, or an Uber-like system called Amazon Flex, where individuals sign up to deliver packages with their own cars.

None of these involve employees of Amazon, and all have come under scrutiny. Postal workers have complained about onerous package loads and weekend deliveries. Labor attorney Shannon Liss-Riordan sued Amazon in 2016 for failing to ensure that Amazon Flex workers earn the minimum wage after accounting for vehicle and maintenance costs, as well as not paying overtime. The case remains pending.

The third-party hustle

Since the $15 wage announcement, Amazon has been criticized for offsetting the pay increase by removing stock awards and bonuses. Others have characterized the wage hike as a way to avoid unionization at Whole Foods, or an impetus to eliminate workers through automation. But the third-party hustle is a far more efficient way to avoid raising wages, while pushing off liability for labor practices to other companies.

The plaintiffs in the TL Transportation case have named Amazon as a defendant, arguing that the company “control[s] the work activities, condition, and management” of the DSPs and their employees. But this bumps up against the “joint employer” standard set by the National Labor Relations Board (NLRB) under Obama, whereby companies are jointly liable for labor law violations by their franchisees, suppliers or contractors if they have indirect influence over the terms of employment.

Trump’s National Labor Relations Board has proposed narrowing the joint employer definition to companies that exercise “substantial, direct and immediate control” over hiring, firing, discipline and supervision. That would still seem to apply to Amazon, but it’s a close call. And courts typically follow the NLRB, which under Trump isn’t exactly worker-friendly.

If the courts agree that Amazon is not a joint employer, it would have a path to keep tens of thousands of delivery workers outsourced and removed from its new wage standards, without sacrificing the significant publicity benefits of the announcement. It’s good work if you can get it.

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

About the Author: David Dayen is an investigative fellow with In These Times‘ Leonard C. Goodman Institute for Investigative Reporting. His book Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraudwon the 2015 Studs and Ida Terkel Prize. He lives in Los Angeles, where prior to writing about politics he had a 19-year career as a television producer and editor.

OSHA Weakens Workers’ Protections Against Retaliation for Reporting Injuries

Friday, October 12th, 2018

The Occupational Safety and Health Administration issued a memo Thursday weakening workers’ protection against employer retaliation for reporting injuries and illnesses.

Section 1904.35(b)(1)(iv) of the Obama administrations 2016 “Electronic Recordkeeping Rule” told employers that “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

According to Deborah Berkowitz, former OSHA policy director under the Obama administration:  “Protection from retaliation when reporting an injury is a core worker right enshrined in both the OSHA law and OSHA regulations. It is outrageous that this Administration is trying to roll back these core protections and allow industry to further hide injuries and illnesses. ”

This is the same recordkeeping regulation that requires some employers to send in their injury and illness logs to OSHA, information that the Obama administration had planned to use for research, targeting inspections and publish on OSHA’s website. OSHA is currently proposing to repeal the second part of that regulation that would require employers to send in more detailed information.

Background

The Bureau of Labor Statistics (BLS) reports that around 3.7 million workers are seriously injured in the workplace every year. But the BLS and other researchers have shown wide-spread underreporting of injuries and illnesses — mainly because employers discourage workers from reporting — making the true toll to be two to three times greater—or 7.4 million to 11.1 million.

During the comment period leading up to issuance of the 2016 regulation, workers and researchers testified and submitted evidence about how employers discouraged reporting by retaliating against workers for reporting injuries and illnesses. The feared that the regulation would increase such retaliation and called for OSHA to strengthen protections beyond the weak language in Section 11(c) of the Occupational Safety and Health Act.

Protection from retaliation when reporting an injury is a core worker right enshrined in both the OSHA law and OSHA regulations. It is outrageous that this Administration is trying to roll back these core protections and allow industry to further hide injuries and illnesses.  — Deborah Berkowitz, former OSHA Policy Director

Employer associations like the Chamber of Commerce hated OSHA’s anti-retaliation language and some are particularly upset that OSHA didn’t include repeal of that language in their current attempt to weaken the regulation.

Of course, they would never admit to actually wanting to retaliate against workers from reporting, so they focused their opposition on two areas where retaliation was common that OSHA emphasized in the preamble to the regulation: rate-based incentive programs that discourage workers from reporting injuries, and post-injury drug tests that employers often require with the intent of discouraging workers from reporting injuries or illnesses.

The memo that OSHA issued did not change the wording of the regulation; it just affected how effectively OSHA inspectors would be able to enforce the language.

Incentive Programs

Workers described common employer incentive programs where an employer would offer some kind of prize to a group of workers that would then be withdrawn if a worker reported an injury. As the preamble described:

An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety. The USW provided many examples of employer incentive policies that could discourage reporting of work-related injuries and illnesses.  One employer had a policy that involved periodic prize drawings for items such as a large-screen television; workers who reported an OSHA-recordable injury were excluded from the drawing.

The American College of Occupational and Environmental Medicine noted that many of its member physicians reported knowledge of situations where employers discouraged injury and illness reporting through incentive programs predicated on workers remaining “injury free,” leading to peer pressure on employees not to report.

A 2012 GAO study found that rate-based incentive programs, which reward workers for achieving low rates of reported injury and illnesses, may discourage reporting.

Incentive programs are based on the “blame the worker” theory of accident prevention. That theory states that if only workers would be more careful, there wouldn’t be as many injuries. And offering workers a prize will encourage them to be more careful. Actually, most workplace incidents are caused by unsafe conditions — machines without guards, slippery floors, lack of fall protection, etc. — not worker carelessness.

Giving out prizes or bonuses doesn’t prevent injuries – it discourages injured workers from reporting their injuries.  Workers don’t need bonuses to work safely, they need safe workplaces.”   — Dr. David Michaels, former OSHA Assistant Secretary

As former OSHA director David Michaels explained, “No one avoids getting hurt simply to get a prize at the end of the week or a bonus at the end of the year. Giving out prizes or bonuses doesn’t prevent injuries – it discourages injured workers from reporting their injuries.  Workers don’t need bonuses to work safely, they need safe workplaces.”

The OSHA regulation didn’t prohibit all incentive programs. Those incentive programs that reward workers, for example, for activities “such as identifying hazards or participating in investigations of injuries, incidents, or “near misses” were perfectly acceptable. Only incentive programs based on injury or illnesses rates were prohibited if they led to underreporting of injuries or illnesses.

OSHA Deputy Assistant Secretary Dorothy Dougherty issued a memo in 2016 laying out for OSHA inspectors how this language was to be enforced.  The memo stated that the anti-retaliation language:

prohibits taking adverse action against employees simply because they report work-related injuries or illness. Withholding a benefit—such as a cash prize drawing or other substantial award—simply because of a reported injury or illness would likely violate section 1904.35(b)(1)(iv) regardless of whether such an adverse action is taken pursuant to an incentive program. Penalizing an employee simply because the employee reported a work-related injury or illness without regard to the circumstances surrounding the injury or illness is not objectively reasonable and therefore not a legitimate business reason for taking adverse action against the employee.

Consider the example of an employer promise to raffle off a $500 gift card at the end of each month in which no employee sustains an injury that requires the employee to miss work. If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury.

Return to Blaming the Worker

The new memo, issued last week under the signature of Kim Stille, Acting Director of Enforcement Programs, stated instead that “Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting.” [emphasis added]

How would an employer ensure that precautions are taken to ensure that employees feel free to report an injury or illness, even if the incentive program results in withholding a prize or bonus because of a reported injury? According to the OSHA memo:

An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

So how is that going to work exactly?

A worker suffers a serious cut on his hand while working on an unguarded machine the day before the lottery for a new riding mower ends.  Fearing that his co-workers will hate him for causing them to lose a chance for the prize, he sticks his bloody hand in his pocket and heads to the local urgent care to have it sewed up, telling them that he did it while working on his car.

Even if OSHA finds out that the incentive program caused the worker to hide the injury, the employer is now home free if there was also a program that rewarded workers for attending safety meetings that identify unsafe conditions in the workplace.

Or they’re safe if the employer conducted a training program that emphasized that they really, really, really wanted employees to report injuries, and they would never in a million years consider retaliating against them (Oh, and if you and your buddies lose the chance at winning the riding mower because you cut your hand, well that’s a shame. Better be more careful next time.)

 

Drug Testing

When developing the regulation, OSHA also compiled evidence that drug testing had been used by employers to discourage injury and illnesses reporting. For example, drug tests were sometime ordered for injuries that couldn’t have been caused by intoxication, such as musculoskeletal injuries that are “often caused by physical workload, work intensification, and ergonomic problems.” The preamble to the regulation therefore referenced as impermissible drug tests administered “irrespective of any potential role of drug intoxication in the incident” and used to deter proper reporting.

OSHA’s original 2016 memo instructed inspectors very clearly that the regulation does not “prohibit drug testing conducted under a state workers’ compensation law or other state or federal law” nor does it prohibit employers from drug testing employees who report work-related injuries or illnesses “so long as they have an objectively reasonable basis for testing.”

The regulation “only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.”

And the 2016 policy put a heavy burden of proof on the agency, stating that “OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason.”

In addition, the drug testing had to measure actual impairment, which meant that OSHA would only permit tests for alcohol use, which is the only drug test that can actually measure impairment.

Furthermore:

Drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.

Employers objected to OSHA’s “intrusion” into their right to drug test employees any time, for any reason. After all, they argued, they should be able to do anything to achieve a drug-free workplace — whether or not employees were using drugs at work or impaired at work, and whether or not the drug testing caused workers to hide their injuries.  And some erroneously warned that the anti-retaliation language would conflict with other laws that mandated or allowed drug testing in certain situations.

The new policy leaves this policy mostly unchanged on paper — allowing drug testing in the same situations it was allowed before — where required by other laws and permitting it when used “to evaluate the root cause of a workplace incident that harmed or could have harmed employees” as long as all involved employees are tested, and not just those who were injured.

But actual enforcement of the language for retaliatory drug testing will inevitably be weakened because the new memo removes language prohibiting drug testing for obviously unrelated injuries or illnesses like musculoskeletal injuries, and removes language prohibiting post-injury drug test except for alcohol.

And the burden of proof for inspectors will now be even higher. Instead of showing that the employer required drug testing just “because the employee reported a work-related injury or illness,” the new burden of proof is to show that “the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

So is an employer home free if they swear that the drug testing was not intended to penalize anyone, but just to “promote safety and health,” (even if it had the effect of discouraging employees from reporting?)  We shall see.

Will this memo be enough to satisfy employers who don’t like the anti-retaliation language? Unlikely. In response to OSHA’s recent proposal to roll back on section of the recordkeeping rule, several employers submitted testimony calling for repeal of the entire regulation — including the anti-retaliation language.

These are Trump Times, after all. It’s the least they can expect.

This blog was originally published at Confined Space on October 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).

The Trucking Industry Is a “Sweatshop on Wheels.” Here’s How Kavanaugh Could Make It Worse.

Thursday, October 11th, 2018

While the nation was focused on Brett Kavanaugh’s contentious confirmation process, the Supreme Court began hearing arguments in New Prime Inc. v. Oliveira, a major labor case that could impact thousands of workers throughout the country. The Court will determine whether workers in the hyper-exploitive trucking industry can sue their bosses for breaking the law. Kavanaugh wasn’t present for oral arguments and new Justices often recuse themselves from such cases, but there’s nothing but an unwritten rule preventing him from casting a vote. If Kavanaugh’s vote were to prove decisive, he could choose to participate or the justices could decide to re-hear the case.

New Prime (Prime) is a transportation outfit that runs an interstate trucking company. Dominic Oliveira claims that he participated in Prime’s apprenticeship program and was told by the company that he’d make more money as an independent contractor than he would as an actual employee. Oliveira signed an Independent Contractor Operating Agreement which allowed him the flexibility to determine his own schedule and work for companies besides Prime. However, Oliveira claims that Prime had a “pervasive involvement” in his work which prevented him from working for other places, despite the fact the company wasn’t supposed to. Oliveira filed suit against Prime in district court, alleging that the company failed to pay him minimum wage, a clear violation of the Fair Labor Standards Act.

Prime’s contract with Oliveira contained an arbitration clause that hypothetically required the two parties to resolve any work disputes through an arbitration process, as opposed to a lawsuit. Prime filed a motion to compel arbitration and dodge the legal action, but Oliveira opposed the action, pointing out that the contract is exempted by the Federal Arbitration Act (FAA) which makes arbitration agreements enforceable. The FAA exempts “contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.” In 2001, the Supreme Court determined that his exemption applied to “contracts of employment of transportation workers.”

The Supreme Court will now determine whether Oliveira should have been classified as a contractor, and therefore will be forced to settle for arbitration, or whether he will be allowed to take Prime to court. “If the Supreme Court rules for the bosses in this case, it will send a clear message: that big companies that break the law get to decide if and when the rules apply to them,” Ceilidh Gao, a staff attorney who filed an amicus brief in the case with the National Employment Law Project, said in a statement. “If the Supreme Court rules against the workers, it would create further incentives for companies to misclassify their employees as independent contractors. Such a perverse outcome would be an affront to the basic fairness American workers demand.”

The case shines a light on an industry that has become tremendously exploitative over the last 40 years. In the 1960s and 70s, trucking was a lucrative profession with regular hours—drivers were taking home around $100,000 a year in today’s dollars. But things have changed drastically since the business was deregulated in 1980. In his 2000 book Sweatshop on Wheels: Winners and Losers in Trucking Deregulation, analyst Michael H. Belzer sounded an alarm, writing that truckers’ median earnings had dropped 30 percent. Eighteen years later, things have gotten even worse: After factoring inflation, the wages for truckers have fallen since 2003.

Deregulation also had the predictable effect of weakening the industry’s unions and increasing the number of “independent contractors” like Oliveira who end up owing their company money as a result of the associated expenses. “In the modern unregulated industry, the solution has been to shift the risks of truck ownership to the workers themselves,” explained Steve Viscelli, economic sociologist and author of The Big Rig Trucking and the Decline of the American Dream, in a 2016 interview. “Companies insulate themselves from the costs of market [and fuel-price] volatility by getting the workers themselves to buy the trucks and pay the operating expenses. That’s what they’ve achieved with these independent contractors.”

Oliveria’s case is just one of three arbitration cases that the Court is scheduled to hear this term, with Kavanaugh recently added to the bench. Typically, Justices don’t cast a vote in cases where they weren’t present for oral arguments. Most recently Justice Gorsuch recused himself from cases that had been heard before he was confirmed. However, there’s nothing compelling Kavanaugh from participating and he could weigh in if he wanted to.

Kavanaugh’s judicial career indicates that he’ll consistently side with business over workers. In 2008, he dissented from a ruling that established undocumented workers as employees who can start a union. In 2016, he wrote for the majority in a case that overruled an NLRB decision which allowed Verizon workers to adorn their vehicles with pro-union messages. Most infamously he sided with SeaWorld after one of its trainers was killed by a whale, criticizing calls to sanction the company and impose regulations on it.

The case is also being heard amid dozens of gig economy lawsuits filed by workers fighting to be classified as employees. One recent suit showed that Uber saves $500 million a year by classifying drivers as independent contractors in California. Early analysis of New Prime Inc. v. Oliveira indicates that the Court might be more skeptical of the employer’s claims than initially expected, but it remains to be seen whether a surprising outcome can be won on a Supreme Court that will now presumably remain conservative for decades to come.

Clarification: An earlier version of this piece implied Kavanaugh would definitely be voting in this case. Although that is a possibility, Justices often recuse themselves from cases in which they weren’t present for oral arguments.

This blog was originally published at In These Times on October 10th, 2018. Reprinted with permission.

What Are Your Workplace Rights When Entering Rehab?

Wednesday, October 10th, 2018

Drug and alcohol rehab have helped millions of Americans successfully recover from addiction and greatly improve their quality of life. But if you’re employed and struggling with substance abuse, a decision to enter rehab can often be complicated by anxious concerns about job security and if/how you should tell your boss. The good news is you have certain workplace rights that can alleviate many of these worries— even with respect to talking with your employer about a decision to pursue rehab.

Common Job-Related Concerns About Going to Rehab

Any full-time employee who has struggled with a serious health condition that requires treatment (and significant time away from work) has asked many of the same questions as employees with an addiction. Some of these questions include:

  • How will seeking treatment impact my career?
  • Do I qualify for medical leave?
  • Can I get fired for taking a leave of absence?
  • Can my company let me go after learning of my addiction?

What Are Your Workplace Rights?

While there is no cookie-cutter answer to these questions as everyone’s job situation looks different, knowing your workplace rights can help you both answer the above questions and prepare for a conversation with your boss.

  • A job-protected leave of absence from work – Alcoholism and other substance use disorders can qualify for a job-protected, unpaid leave of absence under the provisions of the Family and Medical Leave Act (FMLA). The FMLA requires that employers with 50 or more employees grant up to 12 weeks of family or medical unpaid leave to employees who have been in their employment for at least 12 months. Consult your employee manual and/or human resources department to verify that an FMLA leave of absence is an option available to you.
  • Insurance coverage for treatment – If you work full-time, you should have a private insurance plan that covers treatment for alcoholism and other drug addictions (if not in full, then partially).
  • Paid time off (PTO) – If you have been working for the same employer for a while, you have the right to use PTO in the service of time off for treatment. Depending on how much PTO you have accrued, you can get creative about how you use it to help you through rehab— for example, by scheduling detox and rehab over a long holiday weekend and using PTO to make up for the remainder of that time away from work. Alternatively, if an intensive outpatient program will suffice for your treatment needs, you may be able to spread out small chunks of PTO across several weeks instead of taking off a prolonged period of time.
  • The right to control what you share with your employer – You are not required to tell your employer you’re going to rehab, although in some cases this may be the best course of action. If you do tell your employer that you need to go to rehab, it is within their right to ask for supporting medical documentation — but the release of any of that private health information will still require your signed consent. In other words, you have a right to limit what, if any, disclosures you make about your medical history. You also have a right to request confidentiality with any medical records you agree to share.

How to Prepare for the Conversation with Your Boss

In addition to getting better familiarized with your workplace rights, here are some other things you can do to prepare for that conversation with your boss:

  • Get organized ahead of time. Know what the dates of your leave of absence will be, and be prepared to propose a plan for how to cover your job duties while you’re away.
  • Decide ahead of time whether to share that you’re going to rehab. If you do tell your boss, rehearse an honest but brief explanation. If you’re hoping to avoid mentioning that you’re going to rehab, you’ll still need a prepared response for any questions asked about why you need a leave of absence.
  • Keep the conversation positive and focus on how taking the time off will help you become a better, more productive employee. Avoid gratuitously mentioning any negative details of your addiction.

Nobody should have to forego rehab for an addiction that is ruining their life purely out of fear they’ll lose their job or be forever stigmatized. These tips can help anyone considering drug or alcohol treatment navigate the challenge of pursuing rehab while protecting their job.

About the Author: Anna Ciulla is the Chief Clinical Officer at Beach House Center for Recovery. Anna has an extensive background in psychotherapy and clinical management, including more than 20 years of experience helping individuals and families affected by addiction and co-occurring disorders find recovery. Learn more about Beach House’s different rehab programs by visiting their website.

Public workers organize after Supreme Court attacked their unions

Tuesday, October 9th, 2018

The Supreme Court took a big swing at public worker unions in its Janus decision, which allows workers to demand the benefits of unions without contributing to the costs, essentially forcing their coworkers who are union members to subsidize them. But many unions are rising to the challenge.

In Connecticut at least, defections amount to a tiny trickle — just a fraction of 1 percent in most cases. […]

AFSCME Council 4 and other state employee unions are rapidly cutting into the ranks of non-members, restoring dues payments that were cut off from a total of about 7,100 people, depending on the month.

In Illinois, the Peoria Federation of Teachers is training teachers to be organizers, talking to other teachers about union issues:

We offer extremely good services for our members, but we realized if we don’t shift to an organizing model, we might get decimated,” said Jeff Adkins-Dutro, a Peoria English teacher who also serves as the local union president. “In my opinion, this is really going to strengthen our union.”

The transition requires a change in thinking and a lot of legwork. That’s why teachers like Innis and Grace gave up some of their summer break, taking part in an internship program organized by unions and a community group. They sat through seminars run at their local union hall across from the Illinois River, then hit the pavement to speak with teachers about school funding and whatever else they had on their minds.

Organize, organize, organize.

This blog was originally published at Daily Kos on October 6, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.

Kavanaugh Is Terrible on Workers’ Rights—And That’s Anti-Woman, Too

Monday, October 8th, 2018

On October 6, the Senate voted to confirm Brett Kavanaugh, the Republican federal appellate judge accused by multiple women of sexual assault, to the Supreme Court.

In light of the allegations—which include attempted rape—the opposition to Kavanaugh has been dominated by concerns about the impact he will have on the lives of women. In addition to his alleged history of physical and sexual violence, protesters fear what Kavanaugh’s “radical” conservatism may augur for reproductive-rights victories, namely Roe v. Wade, the landmark 1973 decision that expanded the legal right to abortion in the United States. Yet these don’t constitute the only perils of the judge’s appointment: Kavanaugh bears a pattern of anti-worker adjudication—a stance that inordinately harms women.

Kavanaugh’s catalog of judicial decisions indicates a clear predilection for the capitalist class. In 2008’s Agri Processor Co. Inc. v. National Labor Relations Board, Kavanaugh argued that a kosher-meat wholesaler, Agri Processor Co., wasn’t required to bargain with an employee union. Before the suit, the United Food and Commercial Workers Union, filed an unfair labor practice charge with the National Labor Relations Board (NLRB) after Agri Processor Co. refused to bargain. Kavanaugh upheld the company’s claim that the workers who had voted in the union election were undocumented workers and therefore didn’t qualify as “employees” protected by the National Labor Relations Act—and thus were prevented from unionizing, so their votes in the union election were invalid.

There are numerous other examples of Kavanaugh issuing anti-worker rulings. In 2015, Kavanaugh ruled in favor of a Las Vegas casino that requested that police officers issue criminal citations against demonstrators protesting the lack of collective-bargaining rights of casino employees. And in 2013, he argued that a Black woman, LaTaunya Howard, couldn’t pursue a race discrimination suit after being fired from her position at the Office of the Chief Administrative Officer of the U.S. House of Representatives for “insubordination.” Howard alleged that her termination was both racially motivated and in response to complaints she’d made about racial pay disparities at her place of work. What’s more, Kavanaugh helped thwart an NLRB order that would have required the Trump Plaza Hotel and Casino to bargain with the United Auto Workers.

This anti-labor positioning is particularly injurious to women, who benefit disproportionately from union membership. The Institute for Women’s Policy Research found that women covered by a union contract earn an average of 30.9 percent more per week that women with non-union jobs, compared to men’s increase of 20.6 percent. Correspondingly, the wage gap between men and women workers is more narrow among those with union representation than those without it. The Economic Policy Institute reported last year that female union workers earn 94 cents for every dollar their male peers earn, versus 74 cents on the dollar without union safeguards.

Kavanaugh also has a history of jeopardizing the work benefits that inform earnings. Workers with union representation enjoy greater access to family, medical and maternity leave—an advantage for women, who are more often tasked with child and elder care than men, and often lose wages as a result. Unionized women are much more likely to have at least partially paid health insurance than those who aren’t unionized: Notably, 73.1 percent of women in union jobs have employer- or union-provided health insurance, an advantage only 49.1 percent of their non-union counterparts receive. It’s virtually the same case for retirement: The ratio of unionized to non-unionized women with employer-sponsored plans is 74.4 percent to 41.8 percent.

If unions and earnings among women are to be examined, it’s necessary to consider the huge impact a figure like Kavanaugh could have on Black women. Though the unionized workforce has decreased precipitously over the last several decades, Black women have traditionally had a higher rate of unionization, particularly in public-sector jobs, than women of other racial and ethnic groups. As of 2013, Black women outnumbered white, Latinx and Asian-American women in terms of unionization. And by 2015, unionized Black women outnumbered unionized Black men.

This is essential for a demographic that, research shows, would have to work an additional seven months to receive the same pay as white men, despite working more hours than white women. (Black women are also paid less than white men for the same job, independent of education level.)

The same urgency for protections applies to Latinx women, who are now the least likely of all women to have union representation. Statistics show that they’re in the most dire need of the boons of organized labor: Latinx women, for example, make 54 cents for every dollar earned by white men. As Esther López of United Food and Commercial Workers urges, “There exists a sure-fire way for Latina women to earn the better wages they deserve: joining a union in their industry. Latina women who have joined a union earn more than their non-union counterparts—$242 more per week, in fact, according to the Bureau of Labor Statistics.”

Another concern arising from Kavanaugh’s anti-labor record—and one particularly pointed in the wake of the allegations levied against him—is women’s vulnerability to workplace sexual harassment. The Equal Employment Opportunity Commission found that “25 percent to 85 percent of women report having experienced sexual harassment in the workplace.” Echoing López, writer Michelle Chen contends that collective bargaining is a viable means of combating this. “Union agreements,” she writes, “protect equality at work, provide everyday organizational support for workers, and promote public accountability by establishing legally binding conditions of employment,” and can pursue such measures as municipal anti-harassment ordinances.

Heeding Kavanaugh’s roster of rulings, the AFL-CIO, Communications Workers of AmericaNational Nurses United and other unions have formally opposed the now-Supreme Court associate justice. NNU has cited specific concerns for women, stating his assaults on collective bargaining rights and workers’ healthcare render him “unfit to serve on the Supreme Court of the United States.” The subtext is that women will pay the greatest price.

This article was originally published at In These Times on October 8, 2018. Reprinted with permission. 

About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.

One year after the Weinstein story broke, sexual harassment claims are up 12% nationwide

Friday, October 5th, 2018

Exactly one year ago today, the New York Times published its first investigation into sexual harassment allegations against Harvey Weinstein.

Given the number of think pieces written about the public’s ever-shrinking attention spans and the ever-rising churn of the news cycle’s speed, it is astonishing that anyone is still talking about Harvey Weinstein at all, let alone that the revelations about his alleged behavior — coercive, manipulative, violent, tyrannical — would spread so far beyond the confines of Weinstein and his accusers.

Much of the change catalyzed by the Weinstein story, and this past year of a reinvigorated #MeToo movement, is still ongoing and impossible to quantify. But some preliminary data points are emerging. On Friday, the Equal Employment Opportunities Commission reported that sexual harassment claims were up 12 percent this year, compared with the 2017 fiscal year.

The EEOC also announced via press release that it had filed 66 harassment lawsuits in the last year — an increase of 50 percent from the year before.

As Variety reports, only a fraction of the total number of harassment claims in the U.S. are ultimately reported to the EEOC. Still, “the trend lines are telling. Over the previous seven years, harassment claims had declined from 7,944 in 2010 to 6,696 in 2017. The EEOC’s preliminary data shows an increase to about 7,500 claims in 2018, the highest level since 2012.” And state data released by California and New York shows an “even more pronounced” pattern.

Even with the dramatic uptick, we’re not quite at post-1991-Anita-Hill-hearings levels just yet: EEOC data has the number of claims rising 52% in 1992.

This blog was originally published at ThinkProgress on October 5, 2018. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

Improving Patient Safety: Worker Wins

Thursday, October 4th, 2018

Our latest roundup of worker wins begins with nurses across the country winning new contracts and includes numerous examples of working people organizing, bargaining and mobilizing for a better life.

New Contract for More Than 14,000 California Nurses Includes Improved Protections from Violence and Harassment: Registered nurses at the University of California, members of the California Nurses Association (an affiliate of National Nurses United/NNU) voted overwhelmingly to ratify a new five-year contract. The contract covers more than 14,000 registered nurses at more than a dozen locations. “We are so proud to ratify this historic contract for all registered nurses at UC. Nurses stood together in solidarity and fought back over 60 takeaways that would have directly affected our ability to care for our patients,” said Megan Norman, RN, UC Davis. “We won new language addressing infectious disease and hazardous substances as well as stronger protections around workplace violence and sexual harassment.”

11,000 VA Nurses Ratify New Contract: More than 11,000 registered nurses at 23 hospitals run by the Department of Veterans Affairs, who are represented by the National Nurses Organizing Committee/NNU, voted to ratify a new three-year contract that features workplace violence protections, infectious disease training and emergency preparedness information. “I am very excited about the workplace safety provisions that will improve the safety of our nurses and protect them from violence and injury,” said Irma Westmoreland, registered nurse and National Nurses United board member.

Maine Nurses Win Increased Workplace Safety in New Contract: Neatly 900 members of the Maine State Nurses Association (part of the NNOC/NNU) who work at the Eastern Maine Medical Center (EMMC) ratified a new contract. “This new agreement sets a new bar for quality care and patient safety at our hospital,” said Dawn Caron, bargaining team member and chief union steward for the nurses at EMMC. “When we began this process back in February, we set out to protect the role of our charge nurses and all of the other safe patient care provisions of our contract. The nurses at EMMC are proud to announce that today, we have done exactly that.”

Disneyland Resort Workers Approve Contract with Wage Raise and Bonus: After more than a year and a half of negotiations, Disneyland Resort hotel workers approved a new contract that includes nearly $2 an hour in higher wages and the payment of $1,000 employee bonuses originally announced in January. UNITE HERE Local 11 represents the more than 2,700 hotel workers at Disney covered by the new contract.

UFCW Members at Four Roses Distillery Reach Agreement to End Strike: In September, members of United Food and Commercial Workers (UFCW) Local 10D who work at the Four Roses distillery in Lawrenceburg, Kentucky, won a new agreement after a strike that lasted nearly two weeks. “We’re one big, happy, dysfunctional family around here,” Local 10D President Jeff Royalty said. “You know, just like brothers and sisters, you’ll have some hard feelings from time to time, but they’re short-lived.”

Columbia Postdoctoral Researchers Win Right to Form Union: The National Labor Relations Board ruled that postdoctoral researchers at Columbia can form a union. Official elections are being held this week to determine whether or not the Columbia Postdoctoral Workers become members of the UAW. “We are very excited that the NLRB finally issued the decision that Columbia’s postdoctoral workers can unionize despite the university’s efforts to undermine us,” said Alvaro Cuesta-Dominguez, a member of the postdoctoral worker organizing committee and a second-year postdoc researcher. “We look forward to the opportunity to really have our voices heard.”

Federal Judge Sides with FLOC, Rejects Anti-Union North Carolina Law: U.S. District Judge Loretta Biggs ruled that a North Carolina law limiting union organizing for farmworkers was unconstitutional. “North Carolina’s law is clearly designed to make it harder, if not impossible, for the state’s only farmworkers union to advocate for sorely needed protections against exploitation and bad working conditions,” said Brian Hauss, a staff attorney with the American Civil Liberties Union.

New York Port Authority Workers Win Wage Increase: After a long fight, working people at the New York Port Authority represented by the Retail, Wholesale and Department Store Union/UFCW (RWDSU/UFCW) and UNITE HERE won an increase to a minimum wage of $19 per hour by 2023. The new agreement includes nearly 5,000 catering workers that were excluded from the previous policy. The proposal could impact tens of thousands of workers at other area airports, as well.

ExpressJet Pilots Overwhelmingly Approve New Contract: United Express pilots at ExpressJet Airlines, represented by the Air Line Pilots Association (ALPA), have won a new contract that increases pilot pay. More than 90% of those who voted supported the new three-year deal.

This blog was originally published by the AFL-CIO on October 3, 2018. Reprinted with permission. 

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