Outten & Golden: Empowering Employees in the Workplace

Archive for October, 2018

Climate change is taking a severe toll on Florida farmworkers, new study shows

Wednesday, October 31st, 2018

Climate change is taking a heavy toll on farmworkers in Florida, where new research indicates excessive heat stress is increasingly becoming a public health problem with severe human rights and economic implications for the state.

A new report released Tuesday by the non-profit organization Public Citizen, along with the Farmworker Association of Florida (FWAF) and a researcher at Emory University, corroborates what advocates have argued for years: that climate change is impacting farmworkers in Florida.

An analysis of temperature data for all of the state’s 67 counties between May 1 and September 30, 2018, found that workers across Florida were exposed to dangerous levels of heat — temperatures above 82.4°F for moderate work and 78.8°F and 77°F for heavy and very heavy work respectively. Long-term exposure to high temperatures can spark fatigue and nausea, along with heat stroke, dehydration, and over a prolonged period, organ failure.

This temperature assessment was then combined with a study from Emory which had 250 Florida workers wear special equipment while working in order to study their reactions to heat. Blood and urine samples were also collected as part of the study, which ultimately found that four out of five workers were exceeding 100.4°F in body temperature on at least one day during the study, increasing their susceptibility to heat illness.

Entitled “Unworkable,” the final report serves as a dire warning in a state where heat-related hospitalizations are already among the highest in the country. Outdoor workers across a number of sectors, including farming and construction, are already disproportionately vulnerable to high temperatures and shifting climate, something they say global warming will only worsen.

“The price we pay for our food exacts a price too high for the [people] who harvest it,” said Jeannie Economos, a pesticide safety and environmental health project coordinator with FWAF.

Earlier this month, the U.N. Intergovernmental Panel on Climate Change (IPCC) released a dire assessment that found that the world only has around 12 years left before crossing over a dangerous global warming threshold. The panel indicated such a move could be catastrophic. Meanwhile, climate scientists have long worried that warming trends are disproportionately harming vulnerable communities, including laborers like farmworkers.

On a call with reporters on Tuesday, Economos and other advocates and experts spoke about the increasing risks climate change is posing to Florida’s farmworkers. 

Advocates hope the report on Florida farmworkers released this week will open up new conversations about the impacts of climate change. In addition to imperiling human rights, experts stressed on Tuesday that warming weather is also becoming a public health crisis.

“[It is] important that we recognize that climate change is affecting our health now,” said Dr. Cheryl Holder, the interim president of Florida Clinicians for Climate Action.

Doctors in states like Florida are increasingly seeing a spike in workers suffering from heat-related illnesses, sometimes when it’s too late to prevent life-altering problems. Typically low-income, and oftentimes undocumented, farmworkers have been known to put off seeking treatment for their symptoms. This can lead to kidney failure following prolonged periods of heat exposure and dehydration, at which point they typically need dialysis.

“If someone ends up on dialysis in this country regardless of your income status, you will be covered, and that’s quite a lot of dollars that we will be paying [in Florida],” said Holder, nodding to the economic implications, while also emphasizing the groups most likely to suffer amid warming temperatures.

“The most vulnerable [to climate change] are children, elderly, [and] poor people,” she said.

Farmworkers themselves are aware of what is happening, Economos said. “You talk to farmworkers and they know it’s getting hotter; they feel it, they’re worried,” she explained.

This week’s report follows a July plea from 130 organizations to the Occupational Safety and Health Administration (OSHA) to take action and provide protections for farm and construction workers.

At that time, David Arkush, managing director for Public Citizen’s climate program, told ThinkProgress that efforts to protect outdoor workers have long been a point of concern for advocates, but that increasingly dire climate warnings have injected such efforts with a new sense of urgency.

“Looking at the string of heat records, looking at the projections for the future… we think that we need to protect workers as temperatures rise,” said Arkush. “Even in the best case scenario, even if we manage to halt all greenhouse gases tomorrow, the problem of heat stress is only getting worse. But also we think that the problem of heat stress is a great way to raise public awareness in the United States about climate change.”

No laws, in Florida or nationally, currently protect farmworkers from heat stress. Advocates have called on OSHA to offer work breaks in the shade coupled with hydration opportunities.

But even those asks have their downsides. At the time of the July plea to OSHA, advocates told ThinkProgress they had concerns that workers would need more than just breaks and water to prevent heat exposure impacts. Many earn their income by piece — according to how much they pick, collect, or harvest — as opposed to hourly, meaning that any breaks (including to use the bathroom after drinking water) directly hit their income.

Issues like labor and immigration have long dominated the community, with many farmworkers engaging in activism over the years in an effort to protect themselves. Now they are organizing around climate change, but many have found the endeavor frustrating.

In August, ThinkProgress reported from Florida on the disillusionment farmworkers feel with lawmakers in the state, many of whom, they say, are slow to act on climate change. Global warming has emerged as a leading issue in the state’s midterm election cycle, which has been dominated by environmental issues even as a number of conservative candidates — including gubernatorial hopeful Ron DeSantis — have attempted to downplay climate change while emphasizing their green bonafides.

That approach is becoming increasingly unsustainable in low-lying Florida, as sea-level rise and hurricanes become ever-more pressing issues. On Tuesday, advocates reiterated that action to help farmworkers is needed, urgently, along with an effort to mitigate the crisis they are facing.

“This is an issue, we need to look at all aspects of this,” said Economos. “But most importantly we need to protect people…[and] to recognize climate change.”

This article was originally published at ThinkProgress on October 31, 2018. Reprinted with permission. 

About the Author: E.A. Crunden is a reporter at ThinkProgress focused on environmental and world issues, as well as immigration and social justice in the U.S. South and Appalachia.

Mar-Jack: OSHA Inspectors “Are Not There For Us”

Tuesday, October 30th, 2018

I wrote earlier this month about a court decision in the Mar-Jac case restricting OSHA’s ability to expand inspections at poultry plants — even when the company’s log shows high rates of injuries and illnesses — despite the industry’s record of unsafe conditions.

When conducting an inspection about a specific incident, you may recall, OSHA is only allowed to look at factors surrounding the incident and anything within the sight of the inspector. For that reason, when an OSHA inspector requested to inspect a worker’s locker where his tools were stored, Mar-Jac told the inspector that he could only walk through the plant if he agreed to wear a cardboard box over his head to blind him to any safety hazards.

The Atlanta Journal Constitution published an article earlier this week about the court decision and its effect on OSHA.

Asked why Mar-Jac didn’t want the OSHA inspector walking through its plant, [Larry Stine, an attorney for Mar-Jac] told the AJC that Mar-Jac has its own safety personnel to conduct reviews and look for issues in an ever-changing work environment. OSHA inspectors are “enforcement officers,” he said. “Their jobs and what they try to do is find violations. They are not there for us, to be safety consultants.”

Look at that last sentence a bit closer: “They are not there for us….” They’re just “enforcement officers.”

So who is OSHA there for?

The goal of an OSHA inspector is not just to “enforce” the law. The law is not the end. The law it the means to the ultimate end — which is to protect workers.

So the manager may be correct, they are not there for “us,” if by “us” he means managers and not the company’s workers (who, I guess, are not part of “us.”)  And, of course, OSHA is not there for “us,” if he believes that managers have no interest in maintaining a safe workplace — with, as I just said, is the whole point of enforcement.

So no, OSHA is not there to be a “safety consultant.” A company the size of Mar-Jac has more than enough resources to hire its own safety consultants before OSHA arrives to ensure safe conditions in the plant. (And smaller companies that can’t afford consultants can take advantage of OSHA’s free Onsite Consultation Program.)

And indeed, Mar-Jac boasts that it “has its own safety personnel to conduct reviews and look for issues in an ever-changing work environment.”

So if those reviews are useful, and the company actually implements the results of those reviews, they should have no problem allowing OSHA inspectors to wander anywhere they want to go in a plant.

But not according to Stine.

“Why,” Stine said later, “would you want to subject yourself to multiple fines where I would rather find it and fix it myself?”

Or, Mar-Jac workers and OSHA inspectors might ask, why would you fear multiple fines when you’ve allegedly found all the problems and fixed them yourself? And if you haven’t fixed them, why don’t you deserve multiple fines?

This blog was originally published at Confined Space on October 26, 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).

What will Florida's new governor do for workers after a hurricane?

Monday, October 29th, 2018

Natural disasters create major challenges for workers on at least two fronts: people who can’t get to work or whose jobs disappear and need support, and the workers who help make recovery happen are too often underpaid and exploited. Saket Soni and Andrea Cristina Mercado, the executive directors of Resilience Force and New Florida Majority, respectively, write in the Orlando Sentinel that, after Hurricane Irma:

The human cost was also profound, as people struggled to rebuild their lives. Unfortunately, the most vulnerable often did so with little help from the government. Only 53 percent of eligible workers received disaster unemployment assistance, a cash benefit for those who lose their jobs because of a disaster. Tens of thousands stood in lines for hours at four South Florida sites in the heat to receive disaster food stamps, assistance to buy groceries and other food items, only to be turned away.

What should voters look to the next governor of Florida to do?

Some may criticize the notion of an expanded social safety net, saying that jobs, not welfare, are the solution. They could support our next governor in capitalizing on the momentum of the current movement for New Deal-style publicly funded jobs, as exemplified by Cory Booker’s Federal Job Guarantee Development Act. The next governor should also use existing work-force development or AmeriCorps funds to engage the unemployed and underemployed in high-need areas to mitigate climate change and repair, rebuild and prepare for the inevitable next disaster.

This blog was originally published at Daily Kos on October 27, 2018. Reprinted with permission. 

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

Trump’s NLRB Just Quietly Ruled to Make Union Pickets Illegal

Friday, October 26th, 2018

An all-Republican panel of President Trump’s National Labor Relation Board (NLRB) recently ruled that janitors in San Francisco violated the law when they picketed in front of their workplace to win higher wages, better working conditions and freedom from sexual harassment in their workplace. The ruling could result in far-reaching restrictions on picketing that limit the ability of labor unions to put public pressure on management. 

The NLRB reached its conclusion by using the complex and convoluted employment structure created by the janitors’ employers. The janitors were technically employed by one company, Ortiz Janitorial Services, which was subcontracted by another company, Preferred Building Services, to work in the building of a third company.

This type of confusing employment relationship is increasingly common, resulting in workers being put in a position where it’s difficult to negotiate higher wages and better working conditions, or protect their basic employment rights.

The NLRB based its decision on a particularly onerous provision in federal labor law that prohibits employees from engaging in boycotts, pickets or other activities that are aimed at a secondary employer. The provision was added as part of the 1947 Taft-Hartley Act, taking away one of labor’s most powerful weapons.

In this case, the NLRB overturned an administrative law judge’s ruling that because the second company had significant control over the employment relationship, it constituted a joint employer. The judge based her conclusion on evidence that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors’ employment with Ortiz Janitorial Services. Therefore, both Ortiz and Preferred acted as joint employers to the janitors.  

This matters because if the various companies were joint employers, there were no prohibited secondary activities. But the NLRB held that the janitors worked for the subcontractor, and any actions aimed at any other company was illegal under the law.

What is remarkable about this case is how it makes things much worse for workers by only subtly reinterpreting the law. It takes a narrow read on the joint employment doctrine and thereby limits workers’ right to picket. And, as a result, many workers in what former U.S. Department of Labor Wage and Hour Administrator David Weil has termed “the fissured workplace” will find it difficult to vindicate their rights. Ultimately, this case shows how many basic fundamental rights associated with the First Amendment workers are prohibited from engaging in.

At their picket line in San Francisco, the janitors held signs demanding a municipal minimum wage increase, complaints about the companies’ labor practices and demands to stop sexual harassment. If any person other than the janitors had engaged in such a picket, their activities would clearly be protected under the First Amendment. However, because the NLRB found that these janitors “engaged in picketing with a secondary object prohibited by Section 8(b)(4)(ii)(B)” of the NLRA, these workers had run afoul of the law.

In 1984, labor law scholar James Gray Pope used the imagery of a ladder to highlight the absurdity of how the law treats workers’ picketing and speech rights as compared to how the law treats these activities for everyone else. “On the ladder of First Amendment values,” Pope explained, “political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a ‘black hole’ beneath the ladder.”

The First Amendment “black hole” for labor rights has become more apparent with the Supreme Court’s Janus decision, which created an onerous free-speech carveout breaking with decades of precedent for how to treat public sector workers’ free speech.

Instead of following its longstanding rule holding that the First Amendment only applies when a public employee speaks as a citizen on a matter of public concern, the Court held that a single employee’s complaint about union was a matter of First Amendment concern. Although time will tell, it appears unlikely that the Supreme Court will extend such First Amendment protections to public employees in cases that would help, rather than hurt labor.

The NLRB’s recent case restricting the picketing rights of subcontractors, temps and other workers who do not have a single direct employment relationship is a further sign that the labor board will continue limiting its joint employer doctrine. This will make it more difficult or even impossible for many workers to have any meaningful voice in the workplace. But the case also highlights some of the core problems of labor law as it currently exists. By being included under the NLRA, workers lose basic rights that all other Americans enjoy.

In addition to pushing for the NLRB to prevent employers from evading liability through a complex web of subcontractors, labor needs to push their way out of the First Amendment black hole that workers have been in for over 70 years.

This article was originally published at In These Times on October 26, 2018. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

One Way to Defend Transgender People From Trump’s Attacks? Labor Unions.

Thursday, October 25th, 2018

New York Times report this week revealed that the Trump administration’s assault on transgender, non-binary and intersex people has escalated. According to a memo circulating since last spring and recently obtained by the Times, the Department of Health and Human Services (HHS) is at the helm of an effort to define gender as either male or female, immutable and determined by the sex assigned at birth—a move that would dramatically roll back protections and recognition of people who fall outside the gender binary. The legal definition would fall under Title IX, the federal law that bars gender discrimination in government-funded education programs.

The change marks the latest development in the administration’s campaign to revoke preexisting U.S. gender-recognition policies, particularly regarding employment. In 2017, Trump rescinded an Obama-era executive order designed to restrict discrimination against LGBTQ employees of federal contractors. That same year, Attorney General Jeff Sessions argued that the Civil Rights Act of 1964, a federal workplace-equity law, did not protect transgender workers from discrimination. The Department of Justice would thus no longer side with transgender workers who sued their employers for discrimination on the grounds of the 1964 law. 

Now, activists fear that HHS’s proposed definition may further corrode protections for transgender, intersex and gender-nonconforming people in the workplace. Non-discrimination law is already fractured and deficient: According to the LGBTQ-rights nonprofit the Movement Advancement Project, 48 percent of the LGBTQ population lives in states that do not prohibit employment discrimination based on sexual orientation or gender identity.

If the proposal advances, one of the most immediate and robust forms of recourse for workers will be the leverage of organized labor. According to LGBTQ labor nonprofit and AFL-CIO constituency group Pride at Work, union contracts are the only form of legal protection against employment discrimination for transgender people working in 33 states. (In those states, it’s legal to fire a transgender worker based on their gender identity.)

Union contracts, which are enforceable in all 50 states, can contain clauses that specifically address gender-identity parity. “You can get any kind of non-discrimination language put into a contract that’s then enforceable through the provisions of that contract,” Jerame Davis, executive director of Pride at Work, told In These Times. “Basic non-discrimination that includes protections for gender identity and expression go a long way toward mitigating these issues.”

This is essential for workers who face not only a greater risk of firing, harassment, and unemployment—which is approximately 16 percent for transgender and gender-non-binary Americans—but also depend on transgender-inclusive healthcare. Union contracts can remove exclusionary language from insurance policies. Relatedly, they can expand what an insurance plan covers in terms of care related to a gender transition, including hormone treatment, gender-confirmation surgery and mental healthcare. For example, the Service Employees International Union (SEIU) and hospitality- and service-worker union UNITE HERE have passed resolutions for transgender-inclusive healthcare.

In addition to these material concerns, Davis cited some of the more subtle forms workplace discrimination can take. These include intentionally misgendering people by inappropriately referring to them by their sex assigned at birth, Davis explained. In addition, employers who issue “male” and “female” uniforms may also coerce employees into wearing uniforms that don’t suit their gender identities. 

Unions, too, can shield workers from these indignities, and can also codify gender-reflective access to restrooms. In 2015, the Occupational Safety and Health Administration (OSHA) issued a series of guidelines declaring that “every employee, including transgender employees, should have access to restrooms that correspond to their gender identity,” but these don’t constitute law, and gender-neutral or gender-appropriate restroom access isn’t mandated nationwide. “Aside from broad non-discrimination language,” Davis said, “most union contracts have a health and safety section in which language can be added to ensure trans individuals have appropriate access to facilities.”

While contracts are an integral source of worker recourse, Pride at Work cautions that they’re only as good as the efforts of workers to defend them—and that workers thus must strategize to protect their transgender and non-binary cohorts. The organization urges workers to take such strategic measures as placing pressure on unions whose health plans don’t include transgender-related care, vocalizing opposition to workplace harassment and striving to further organize unionized and non-unionized LGBTQ workers.

As of 2015, 15 percent of transgender workers surveyed by the National Center for Transgender Equality were unionized or had some level of union representation, compared to the national average of 12 percent. While the fraction is slim—a symptom of decades of neoliberal legislation in the United States—it’s possible for unions to leverage their power beyond the scope of the workplace, thus advocating for workers who aren’t unionized. The AFL-CIO, for instance, has endorsed transgender-rights legislation in Massachusetts and combatted North Carolina’s infamous (and defunct) 2016 House Bill 2, which would have denied transgender people access to appropriate restrooms.

Davis told In These Times that the AFL-CIO has a union lobbying operation in every U.S. state, allowing the organization to shape policymaking at the local, state, and national levels.

The HHS’s proposal has yet to pass, and it’s unclear when and whether it will. Given the gravity of the situation, however, union protections countering the federal government’s potential erasure of transgender and non-binary people have taken on a new level of urgency. “When the federal government is saying these people don’t even exist, it gives employers and other people in the community basically a license to discriminate,” Davis said. “The vast majority of trans people in this country would be left hanging with that kind of a definition in place.”

This article was originally published at In These Times on October 25, 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.

“Complacency Killed My Brother!”

Wednesday, October 24th, 2018

A couple of months ago, I wrote a post about how “freak accidents” are neither “freak,” nor “accidental.” As I explained then:

First, the phrase implies that this type of incident hardly ever happens and there is, therefore, not much you can do about it. In fact, the phrase “freak accident” is a double-whammy. Not only does the word “freak” imply “rare,” but the word “accident,” defined as “an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury,” implies that the event was unexpected.

One of the examples of an fatality that was labeled a “freak accident” was the tragic death of Marty Dale Whitmire in Greenville, South Carolina, in April 2017.  Whitmire was working on a paving operation when his truck clipped a live power line, which fell on him — a tragic, far-too-common — and completely preventable — cause of worker death.

Yesterday, Marty Whitmire’s nephew, Melvin Whitmire, posted a comment on that post which I am reprinting below to give it more attention. I defy you to read it without boiling over, and crying at the same time:

Thank you so much for your article about the “freak” “”accident”” in Greenville SC involving the electrocution that occurred on a paving job site.

April 11, 2017 is a day my family and I will NEVER forget. Marty was my like a brother to me. He was actually my Uncle (my fathers baby brother) but because he was only 8 years older than me we were very close when I was a child and as I became an adult we grew to be best friends. He used to tell everyone that he and I were brothers.

Marty worked on my crew as a Pipefitter for 4+\- years and the company we were working for layed him off in November of 2016. That’s when he took the job at King Asphalt to keep busy until the layoff ended. He wasn’t experienced and he was a flag man for the first 4 months he worked there. Towards the end of March 2017 he was “promoted” to the job the position that he was working when he was tragically killed, not accidentally either. This happened in my opinion (I have 22 years in Industrial Pipefitting an OSHA 30, and experience as Site Specific Safety Officer on a Federal Jobsite) due to Marty’s absence of proper training on the machine and lack of training for the foreman in the job. The power lines were  lower than required  by national code, the pole was not up to national codes, the spotter was out that day and no one filled his position and SCDOT inspector  was sitting in his truck onsite because the road being paved was a State Road. The road has more overhead lines crossing the road than the average road in that particular area that the incident occurred, and no one notified the power company about safeguarding the power lines before work began. COMPLACENCY killed my “brother”!!!! This could have been avoided if either the paving or power company or SCDOT would  have fulfilled their obligations to provide a safe place to work.

Another piece of information not reported was…….
The foreman on the paving crew was Marty’s son. My cousin watched his Daddy as he was being electrocuted for 20+\- minutes until the power company arrived to shutdown the 7200 volt line that lay across Marty’s body. The power never tripped a fuse or transformer. It stayed live until the power company got onsite. NOT A ACCIDENT. A FAILURE TO PREVENT this from happening is what is so “FREAKY” and unbelievable.

Moral of the story: Most workplace “accidents” are not accidents; nor are they “freak.”  Most workplace fatalities are preventable. There is plenty of information out there if employers don’t understand how to make their workplaces safe. Melvin is right: it wasn’t an act of God or “just one of those things” that killed his brother; it was the employer’s complacency and violation of safety standards and the law.

Finally, every worker killed in the workplace is a tragedy and a loss that brothers, sisters, nieces, nephews, friends, co-workers, spouses, children and parents can never fully recover from.

This blog was originally published at Confined Space on October 23, 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).

Lost pregnancies at a Verizon warehouse show the urgent need for a Pregnant Workers Fairness Act

Tuesday, October 23rd, 2018

In a Tennessee warehouse supplying Verizon customers with their phones and tablets, pregnant women are routinely worked to the point of losing their pregnancies, lifting boxes up to 45 pounds through long shifts in heat that can reach more than 100 degrees. And there is no law that says their employer can’t do this to them. Sure, there’s the Pregnancy Discrimination Act, but even when it’s enforced, it has loopholes you can drive a 747 through. 

If companies “treat their nonpregnant employees terribly, they have every right to treat their pregnant employees terribly as well,” said Representative Jerrold Nadler, Democrat of New York, who has pushed for stronger federal protections for expecting mothers.

That’s why Democrats keep introducing the Pregnant Workers Fairness Act, to strengthen protections for pregnant women. But Republicans won’t consider it, not that this stops them from proclaiming themselves to be protectors of family values.

Early miscarriages are very common and are typically associated with chromosomal abnormalities rather than anything a woman in early pregnancy might do. But that’s not what the New York Times is reporting on here. Several of the cases cited in this article involved later pregnancy loss, well into the second trimester when miscarriages are much less common, and even into stillbirth territory. One of the women interviewed for the story delivered a baby at 20 weeks that lived for 10 minutes. “My husband and I watched her die,” she said. This is much, much less common, and when it comes after a woman has worked for hours lifting heavy boxes, against her doctor’s advice and after her employer has refused to give her light duty, it should be a crime. That’s not all, either. After a worker in the same warehouse died on the job, “In Facebook posts at the time and in recent interviews, employees said supervisors told them to keep working as the woman lay dead.”

Verizon said “We have no tolerance—zero tolerance—for this sort of alleged behavior,” except, apparently, to the extent that it has been tolerating the behavior right up until a newspaper started reporting on it. The company says it is investigating the workers’ claims.

This blog was originally published at Daily Kos on October 23, 2018. Reprinted with permission. 

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

EEOC reports (mostly) positive developments on sexual harassment

Monday, October 22nd, 2018

The Equal Employment Opportunity Commission reports that formal complaints of sexual harassment complaints are up significantly from 2017. The EEOC is also litigating substantially more harassment cases.

Amid the uptick in reported harassment, there is evidence that men are changing their behavior – in good and bad ways. While the impact of the #MeToo movement has mostly been positive, some leery men are going to the other extreme and avoiding female co-workers completely.

Formal harassment complaints and lawsuits have increased

The EEOC says it is leading the way in combating workplace sexual harassment. Through outreach and education, as well as through investigation and enforcement, the agency believes it’s making an impact:

  • Formal sexual harassment charges in fiscal year 2018 increased by more than 12 percent from 2017.
  • Reasonable cause findings increased by 23 percent and successful conciliations by 43 percent.
  • In complaints not resolved through mediation, the EEOC has filed 41 sexual harassment lawsuits, a 50 percent increase.
  • The EEOC recovered $70 million for victims in FY 2018, an increase of 47 percent.

In the aftermath of #MeToo, traffic to the EEOC website doubled in the past year as both employees and employers sought information on dealing with workplace harassment. The agency conducted hundreds of outreach events to educate individuals and employers

Some men are taking the wrong message from #MeToo

Overall, the #MeToo movement has affected real and positive change. More women (and men) are confronting abuse and reporting sexual harassment rather than quietly tolerating it. Employers, including government agencies, are re-examining their policies and doing more trainings. Habitual and egregious offenders are being fired or otherwise suffering real consequences.

At least anecdotally, males in the workplace are changing their behavior, out of self-preservation if not because they genuinely “get it.” From sexual come-ons and inappropriate touching and to sharing sexual jokes or pictures, men appear to be getting the message.

But there has been some unexpected backlash from the #MeToo campaign. Some men in positions of power are intentionally avoiding or excluding female counterparts to avoid being accused of harassment. For example, women may not be invited to key meetings or after-hours events. Some men say they will no longer mentor women or hire female assistants. Some go so far as to avoid riding in an elevator or vehicle with female co-workers.

This overreaction has the unintended consequence of limiting opportunities for women and creating barriers. Such behavior can rise to the level of retaliation, sex discrimination or creating a hostile work environment.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 22, 2018. Reprinted with permission. 

About the Authors: 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.

Reaching the Unorganized

Friday, October 19th, 2018

The results of a recent Department for Professional Employees (DPE) campaign with the Nonprofit Professional Employees Union (NPEU) demonstrate that low-cost social media advertising is an effective way to generate quality organizing leads.

DPE partnered with NPEU?—?formerly the International Federation of Professional and Technical Employees (IFPTE) Local 70?—?on a campaign to promote NPEU and inform nonunion professionals about the benefits of joining together in union. A large component of the campaign was inexpensive advertising on digital platforms. The campaign resulted in more than 60 organizing leads over eight months with advertising costs of just under $2,600.

The campaign was inspired by the findings of DPE’s October 2016 survey of nonunion professionals. The survey found that a majority of nonunion professionals want to join a union, but only 31% know a fair amount or more about unions representing professionals. For professionals who want to join a union, most do not know which union is right for them. DPE created the NPEU campaign with the goal of bridging this information gap.

With the campaign, DPE wanted to test different digital tools to determine which were effective at making a union accessible to the professionals it sought to recruit and getting the union’s message in front of potential members. Ultimately, the measure of success was whether the campaign could generate organizing leads for the union?—?which it did.

Understanding the components of the campaign and what made it successful can help to inform one way unions can reach potential members.

NPEU is a union of nonprofit employees whose employers include the Center for American Progress (CAP), the Economic Policy Institute (EPI) and the Center for Economic and Policy Research (CEPR). The focus of the campaign was to actively inform nonunion progressive nonprofit employees that there was a union for them and encourage them to connect with NPEU. Additionally, the vast majority of NPEU’s potential members fall squarely within the demographic and political categories that indicate they would vote in large numbers for union representation in the workplace.

The first step in the campaign was to make NPEU more accessible to potential members, which required a rebranding effort. At the time, NPEU was IFPTE Local 70 and part of the rebrand was to change its name to the Nonprofit Professional Employees Union. The union also got a new logo and website. Building a union identity and website that reflected the membership and spoke to similarly employed professionals was key to connecting with potential members.

In addition to the rebrand and website, DPE sought to explore whether the information gap between potential members and a union could be filled with low-cost paid advertising. DPE believed potential NPEU members would be more responsive to targeted messages about the gains made by nonprofit professionals in NPEU as opposed to general messages about the value of joining a union for all professionals. DPE based campaign messaging on conversations with current members and survey data for nonunion nonprofit professionals. With this messaging, DPE crafted ads that spoke specifically to progressive nonprofit professionals. Centrally, DPE also wanted members to be able to tell their personal stories highlighting what being part of NPEU has done for them. NPEU members told their stories using blogs and social media and shared their NPEU experience with their networks. Ultimately, DPE wanted potential members who clicked on a paid advertisement on social media or Google to visit the NPEU website where they could learn more and reach out.

Another component to the campaign was earned media. Past experience has shown that potential members often learn about a union representing their profession when they read about an organizing victory or contract gain in the news. Many then reach out about organizing their own workplace. For the NPEU campaign, articles and op-eds about NPEU were featured in The Washington Post, The Hill, Bloomberg BNA and the Metro Washington Council’s Union City newsletter. Each time there was a mention leads ticked up. Actively engaging the media about unions and earning press hits should be part of any campaign focused on generating organizing leads.

During the campaign one of the leads received by NPEU turned into a new unit that was voluntarily recognized. Many of the over 60 organizing leads resulted in ongoing conversations with potential members. NPEU and DPE agreed the campaign was a success.

The results show that generating organizing leads from nonunion professionals interested in forming a union is possible using a tailored approach combined with a diverse communications effort. DPE continues to work with its affiliate unions to devise and deploy creative methods to make their unions accessible and reach potential members with a positive union message.

This blog was published by the AFL-CIO on October 19, 2018. Reprinted with permission.

Sickened Kingston coal ash workers claim company hid health risks, tampered with air monitors

Thursday, October 18th, 2018

The trial in one of the nation’s worst workplace negligence cases began this week in federal court in Knoxville, Tennessee. The workers assigned to clean up the massive coal ash spill at the Tennessee Valley Authority’s (TVA) Kingston coal-fired power plant are finally getting their day in court.

After the jury was seated, it didn’t take long for witnesses to cast management of the coal ash clean-up in a bad light. A worker for Jacobs Engineering Group Inc., the contractor put in charge of site cleanup, testified that the company was more worried about public perception than worker safety.

A company supervisor told the worker, Robert Muse Jr., to report any other workers who were wearing respiratory gear to clean up the coal ash and that the employees would be dealt with. Jacobs Engineering did not want to give the appearance that the coal ash was something the public should worry about.

Nearly 10 years have passed since 5.4 million cubic yards of coal ash spilled from a retention pond adjacent to the TVA Kingston coal-fired power plant in eastern Tennessee. The spill was the worst coal ash disaster in U.S. history; it occurred in the early morning hours of December 22, 2008, when a retaining wall failed at the huge coal ash retention pond.

The Environmental Protection Agency (EPA) selected the Superfund program in 2009 as the best regulatory vehicle to address the coal ash disaster “due to its comprehensive human health and ecological risk assessment process and its proven ability to actively engage and involve multiple stakeholders in large, complex environmental cleanup projects.”

Home and land owners have already been able to receive compensation for damages from the spill. The TVA finished its major cleanup work of the site at the end of 2014. The federal power agency reported spending more than $1 billion on the cleanup project. It sent 41,000 rail cars of ash to a landfill in Alabama.

The Kingston coal plant, with a generating capacity of almost 1,400 megawatts, is still in operation. The plant burns about 14,000 tons of coal a day, an amount that would fill 140 railroad cars.

But long after the cleanup has finished, impacts from the contamination are still being felt.

Many of the workers were forced to leave their jobs after they got sick during cleanup, not knowing at the time that breathing in the coal ash had made them sick. And nearly a decade after the devastating coal ash spill in Roane County, Tennessee, more than 30 clean-up workers are dead and more than 250 are sick or dying — all from illnesses and diseases reportedly linked in medical studies to the toxins from coal ash.

The workers now are suing Jacobs Engineering, the contractor put in charge of cleanup of the site, alleging the firm lied to them about the dangers of long-term exposure to coal ash, denied them protective gear, and tampered with testing that was designed to keep both the public and the laborers safe.

One of the employees for the company hired to clean up the spill told the court on Wednesday that if he and his fellow workers had known what was in the coal ash, they would have quit their jobs.

The case has consolidated the claims of 70 different workers involved in the cleanup project managed by Jacobs Engineering. The jury trial is taking place in U.S. District Court in Knoxville, about 35 miles northeast of Kingston.

The plaintiffs are seeking damages for “physical injury, pain and suffering, mental anguish, increased risk of disease, fear of disease, medical expenses, medical monitoring, and compensatory damages in any amount or amounts fair to be determined by a jury at trial.”

In its defense, Jacobs Engineering’s attorney is contending that the workers are lying about the steps the company took to cover up the contamination and — even if the workers are not lying — Jacobs Engineering had no duty to protect them.

The Knoxville News Sentinel brought greater public attention to the plight of the workers assigned to cleanup up the toxic waste from the site. The newspaper, which has won awards for its coverage, examined why so many cleanup workers at the site were getting sick and dying. In her coverage of the cleanup, reporter Jamie Satterfield learned that workers weren’t warned of the dangers of the coal ash and were, in fact, told the coal ash was perfectly safe.

The state of Tennessee began its investigation into the treatment of the cleanup workers in early 2017. Satterfiled’s newspaper in July 2017 published its first series of stories on the probe.

During cleanup, Jacobs Engineering placed monitors around the site to monitor the toxicity of the ash. The company said it closely monitored levels of toxic chemicals at the site. It said the levels were never high enough to cause injuries. The site had levels of chemicals below the EPA’s set level of permissible exposure, the company’s lawyers said.

But on Wednesday, Muse, one of the workers at the site, testified about how Jacobs Engineering tampered with the monitors.

The company would order workers to wash coal ash from the stationary monitors and keep the area around them wet, which would lower the toxicity of the test results. Workers also captured secret video of Jacobs Engineering staffers banging out ash from the cartridges of the monitors placed around the site to monitor the toxicity of the ash, the News Sentinel reported.

During the trial, the jury will be asked to decide whether the toxic chemicals at the site were capable of causing the workers to get seriously ill.

“The workers are claiming that they have been harmed,” Sidney Gilreath, a personal injury attorney who has worked on similar cases, told 10News. “And they are sick, there’s no question about that. The question is did the working in the fly ash cause that harm.”

Because many of the plaintiffs have different illnesses, he said it will be more difficult to show Jacobs Engineering is liable for the deaths and illnesses.

The trial is expected to last for several weeks.

This article was originally published at ThinkProgress on October 18, 2018. Reprinted with permission. 

About the Author: Mark Hand is a climate and environment reporter at ThinkProgress.

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