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Archive for the ‘Employment’ Category

Bagenstos on Employment Law and Social Equality

Wednesday, November 13th, 2013

Paul SecundaSam Bagenstos has brought to my attention his new article in the Michigan Law Review entitled: Employment Law and Social Equality.

Here is the abstract:

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation.

Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers.

This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.

Very interesting new meta-theory on what animnates employment law. As an ERISA guy, I think Sam’s social equality theory equally applies to how the law should protect employee benefit plan participants and beneficiaries from opportunitistic behavior by plan administrators, plan sponsors, and their third party advisors and consultants.

An important new contribution to employment law theory that should be on the top of any workplace prof’s reading list.

This article was originally printed on Workplace Prof Blog on November 6, 2013.  Reprinted with permission.

About the Author: Paul Secunda is a professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

Did I Hear the Words "Full Employment"?

Thursday, August 1st, 2013

jonathan-tasiniAmong the many reasons the country would be better off if Bernie Sanders was president is that the man just refuses to deal in silliness. He wants the country to have a serious debate — and whether the next head of the Federal Reserve Board is a man or a woman, or the current president is more “comfortable” with one person or another running the Fed, is entirely irrelevant to Sanders. And, so, Sanders goes really wild — he invokes the two words that most people will not speak in this debate even though those two words are part of the Federal Reserve Board’s mission:  FULL EMPLOYMENT.

Last week, I tried to suggest that the critical questions are not being asked in the discussion about who should run the Fed. Sanders can actually communicate with the guy in the White House, as he does in this letter. The entire letter is worth reading but this is the paragraph that almost made me cry (I’m desperate here, politically speaking):

The top priority of the Federal Reserve Board must be to fulfill its full employment mandate. When Wall Street was on the verge of collapse, the Federal Reserve acted boldly, aggressively, and with a fierce sense of urgency to save the financial system. We need a new Fed chair who will act with the same sense of urgency to combat the unemployment crisis in America today that has left 22 million Americans without a full time job. [the underline and bold is in the original]

There is a lot to learn from this short letter.

First, how many people know, as Sanders points out, that it is the Fed’s responsibility to bring about full employment?

Wait a second: who even talks about full employment anymore? Not the Congress (except for a handful of people…or maybe it’s only Sanders). Not the president. Not either of the two parties.

It’s seen as, well, quaint. We’ve now adjusted our attitude, thanks to the constant chatter of the transcribers of press releases (formerly known as “journalists”), so that we now think of under 7 percent unemployment as somehow “okay” and 6 percent unemployment as if everything is going great guns…with the millions of people out of work that those numbers represent.

Obscene.

But, reaching full employment is the Fed’s job. And Sanders, wacky guy that he is, actually wants someone in the position who understands that. Uh, good luck with that, Bernie.

Correctly, Sanders targets the Big Three. No, not the auto companies. The Big Three who were key architects in the financial crisis: Robert Rubin, Alan Greenspan and Larry Summers. Those guys had a mission: destroy regulation, let Wall Street run wild and make themselves and/or their friends rich along the way.  To the president, who is out now talking about the divide between rich and poor, Bernie says: keep those turds away from the Fed (yes, he uses far more Senatorial language)

I got to have one quibble with Sanders, otherwise it will seem like hero worship (close). And that’s that he doesn’t call out in his letter the puppet master who laid the groundwork for this mess in the 1990s: Bill Clinton. Because it was the Big Dog himself who led the charge of the Big Three against Glass Steagall — which was the law that did not allow investment banking and commercial banking to mix.

But, if the world was right, and we had a serious political debate, Sanders’ letter would be driving policy the decision about who will be looking out for the interests of the people.

This article originally posted on Working Life on July 30, 2013.  Reprinted with permission. 

About the Author: Jonathan Tasini is a strategist, organizer, activist, commentator and writer, primarily focusing his energies on the topics of work, labor and the economy. On June 11, 2009, he announced that he would challenge New York U.S. Senator Kirsten Gillibrand in the Democratic primary for the 2010 U.S. Senate special election in New York. However, Tasini later decided to run instead for a seat in the House of Representatives in 2010.

Employers: Be Careful What You Wish For - Your Motion to Compel Arbitration Can Lead to Expensive, Class-Wide Arbitration

Thursday, December 27th, 2012

In the wake of ATT Mobility v. Concepcion and Stolt-Nielsen v. AnimalFeeds,* many employers have sought to enact new arbitration agreements or to enforce arbitration provisions in older agreements to eliminate their employees’ ability to come together when seeking to vindicate their rights to enforce statutory protections for workers. Employers should be careful what they wish for, in seeking to compel arbitration. They may indeed wind up in arbitration – but unable to strike class allegations, and required to pay the full and exorbitant costs of class-wide arbitration. 

In a case on which Bryan Schwartz Law serves as local counsel for Richard J. Burch of Bruckner Burch, in Houston, Texas, the employer is now feeling the danger of a Stolt-Nielsen-based strategy seeking to compel individual arbitration in a putative, wage-hour class action. In the Laughlin v. VMWare case, in which VMWare employees assert they were misclassified as exempt employees and denied overtime and other compensation to which they were entitled, the company moved to compel arbitration based on an agreement which did not specifically provide for class-wide arbitration. 

Judge Edward Davila of the Northern District of California struck some of the more offensive provisions of the arbitration agreement under Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, such as a provision which would have required Plaintiff to share the costs of arbitration. However, Judge Davila found these unlawful provisions severable (i.e., refused to kill the whole arbitration agreement). Perhaps most importantly, though, Judge Davila referred to the arbitrator the decision on the Stolt-Nielsen argument – namely, as argued by VMWare, the notion that class-wide arbitration cannot proceed where the parties’ arbitration agreement did not expressly consent to class arbitration. His initial decision from early 2012 is available here: 

http://www.bryanschwartzlaw.com/VMWare.pdf

In arbitration, AAA arbitrator LaMothe then rejected the employer’s Stolt-Nielsen motion to strike class allegations, notwithstanding the fact that the agreement did not expressly give permission to bring class allegations, finding the parties’ agreement intended to encompass all claims by Plaintiff Laughlin, including her class claims. The AAA order is available here: 

http://www.bryanschwartzlaw.com/Laughlin.pdf

In the last 18 months, numerous other arbitrators from JAMS, AAA, and other nationwide arbitration services have likewise denied motions to strike class allegations, employing similar reasoning. 

On review, Judge Davila confirmed the arbitrator’s partial final clause construction award allowing class allegations to proceed, meaning – in light of all the foregoing – that VMWare will now be forced to arbitrate a putative class action, and will be forced to bear all of the costs of doing so: 

http://www.bryanschwartzlaw.com/VMWare-12-20-12.pdf

Be careful what you wish for, employers. You may find that sometimes, allowing employees their day in court is better than the alternative. 

DISCLAIMER: Nothing in this article is intended to form an attorney-client relationship with the reader. You must have a signed representation agreement with the firm to be a client. 

*See our numerous prior blog posts relating to the subject of arbitration class waivers in light of Concepcion andStolt-Nielsen, including: http://bryanschwartzlaw.blogspot.com/2012/09/california-supreme-court-grants-review.html

http://bryanschwartzlaw.blogspot.com/2012/09/wage-and-hour-class-actions-sky-is.html;

http://bryanschwartzlaw.blogspot.com/2012/01/landmark-decision-by-national-labor.html

http://bryanschwartzlaw.blogspot.com/2011/05/civil-rights-lawyer-and-employee.html.

This post was originally posted on December 26, 2012 on Bryan Schwartz Law. Reprinted with Permission.

About the Author: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

McDonald’s Urges Franchises to Open on Christmas Day … Without Overtime Pay

Wednesday, December 19th, 2012

Mark E. Andersen

In November McDonald’s saw a 2.5 percent increase in November sales. This is after the fast food giant saw a decrease in sales of 2.2 percent in October. So why was there increase in sales? Was the pork-like substitute McRib back? Was there a shortage of Ore-Ida french fries in your local grocer’s freezer causing a run on McDonald’s across the country?

Nope, none of the above; the corporate overlords at McDonald’s urged franchisees to be open on Thanksgiving day, a day that most franchise stores are closed. A Nov. 8 memo from McDonald’s USA Chief Operating Officer Jim Johannesen stated,

“Starting with Thanksgiving, ensure your restaurants are open throughout the holidays. Our largest holiday opportunity as a system is Christmas Day. Last year, [company-operated] restaurants that opened on Christmas averaged $5,500 in sales.”

On Dec. 12 Mr. Johannesen doubled down and sent out another memo to franchise owners stating that average sales for company-owned restaurants, which compose about 10 percent of its system, were “more than $6,000″ this Thanksgiving. That adds up to be about $36 million in extra sales.

So with all those extra sales one must ask if employees are reaping any benefits from being open on the holidays. The answer is dependent on the franchise owner; however, in the case of company owned stores the answer is a big fat no. According to McDonald’s spokesperson Heather Oldani, “when our company-owned restaurants are open on the holidays, the staff voluntarily sign up to work. There is no regular overtime pay.”

It is bad enough that McDonald’s pays crap wages but then they turn around and refuse to pay overtime for employees who volunteer to give up their holidays so that McDonald’s can make several million dollars. I am also willing to bet that most staff does not readily volunteer to work on Christmas day. This just gives me one more reason to not eat at the Golden Arches.

This post was originally posted on December 18, 2012 at The Daily Kos. Reprinted with Permission.

About the Author: Mark E. Andersen is a 44 year old veteran, lifelong Progressive Democrat, Rabid Packer fan, Single Dad, Part-time Grad Student, and Full-time IS worker. Find me on facebook my page is “Kodiak54 (Mark Andersen)”

How “Right to Work Shirk” Laws Kill Jobs – and Hurt All of Us

Friday, December 14th, 2012

Michigan’s recent battle makes this a good time to explain the union movement’s important role in our economy’s overall health. We’re about to explain why today’s war on unions is bad for all of us, no matter what we do for a living, and we’ll do it in four steps.

But first a word about language: “Right to work” is a misnomer for laws which let employees enjoy the benefits of union membership – at least for a little while, until they’re stripped away – without joining or contributing.

So we’ll call them “right to shirk” laws instead. And we’ll call the people who back these laws Shirkers.

And while we’re at it, let’s stop calling the states that have adopted this legislation “right to work.” They don’t give people any new rights. They take rights away, by making it illegal for employees to organize and negotiate together. They even take away employers‘ rights – to sign a certain kind of contract.

So let’s give the other states a name instead: In a nod to the Jim Crow origin of these laws, let’s call the ones which don’t have these laws “free states.”

Free Ride

Right to Shirk laws allow freeloaders to profit from the efforts of others – without contributing to the effort, and in a way that harms the common good. The billionaires and corporations behind these laws wouldn’t deliberately do anything like that, would they? Why, that would be like letting people make billions from the works of government – things like roads, the Internet and publicly-educated customers – without paying their fair share of taxes.

Oh, wait.

Right to Shirk laws are job-killers. Here are four steps to understanding why:

1. Think nationally, not just locally.

Advocates say these laws create jobs. They don’t. Their “evidence” is based on studies which show modest job growth in Right to Shirk states when compared to free states.  But all that proves is that places that are politically hostile to organized labor also offer other types of corporate favoritism.

It also suggests that Right to Shirk states can steal jobs from free states — as long as the jobs last, anyway.

The Shirker movement was started in the late 1940s by a handful of Southern politicians who were in the palm of big textile mills. They were able to draw textile jobs away from free Northern cities like my hometown of Utica, NY – until those jobs left this country altogether.  That’s not “creating” jobs — that’s killing good jobs and replacing them with ones that don’t pay enough.

The concept of “solidarity” has been tarred with McCarthyite smears. But “solidarity” is just another way of saying “We’re all in this together.”  The Right to Shirk crowd wants to stop that kind of thinking so it can pit state against state and employee against employee, shredding our social fabric for personal gain.

It’s no accident that the Shirker movement was started by the reactionary white politicians of the Jim Crow South. Back then they were still pining for the days when they could offer some folks the “right to work” … for nothing.

2. We’re fighting over a shrinking pie instead of making the pie bigger.

Things are bad. We need millions of jobs – and the jobs we do have don’t pay enough.

The graphic which Business Insider likes to call “the scariest chart ever” shows how far we are from creating the number of jobs needed to make this country’s economy grow and thrive again.  Job growth like that we’ve seen recently is always welcome, but it’s not nearly enough to get us out of this ditch. How do we get moving again?

To answer that question we need to know what’s worked in the past.

3. The real “job creators” are people with jobs – good jobs.

How did this nation finally escape the after-effects of the Great Depression and begin its greatest decades of economic growth? Government spending  – on roads, bridges, schools, and other vitally needed services – played a key part.

Unions were a crucial part of this process, too. By fighting for higher wages and better benefits, unions ensure that working people have the means to purchase consumer items, housing, and other goods and services.  Companies have to hire more people to keep up with demand – and the good jobs keep coming.

That’s why the Republican Party platform of 1956 boasted that “unions have grown in strength and responsibility, and have increased their membership by 2 millions” during Dwight D. Eisenhower’s first term. Back then Republicans understood that a growing middle class was good for the entire economy.  That party platform also said that “America does not prosper unless all Americans prosper.” Their rule: No shirkers.

But then in those days our economy wasn’t dominated by Wall Street megabanks – institutions that don’t build or sell anything. And politicians weren’t completely in bankers’ pockets back then, because the public wouldn’t have tolerated it.

We shouldn’t tolerate it now.

4. When you kill unions, that reduces consumer income – which kills jobs.

The Shirker assault on unions has taken its toll. Only 25 states remain free to unionize, and union membership has fallen dramatically:

 

Their logic would suggest that the plunge in union membership we’ve seen since 1960 must have led to a rise in good jobs.  Did it? Let’s take a look at manufacturing:

That’s my freehand drawing (and therefore not exact) of the trend line in union membership, superimposed by the number of manufacturing jobs in the United States.  Manufacturing jobs kept on increasing for more than twenty years, even as union membership increased. These jobs experienced periods of decline and stagnation as union membership fell, even before the devastating impact of NAFTA.

Consumer demand is vital to growth. That demand is tied to consumers’ income, and to their belief that life in the future will be as good or better than it is today.  Those are the two things we need to reinforce, and unions are crucial to that effort.

We need to get our economy growing again. Until then most Americans, unionized or not, will continue to struggle with stagnating wages and an ongoing economic drag that can feel a lot like a recession.  As Paul Krugman likes to say (he said it in our radio interview), This isn’t rocket science. We know how to do this.

Destroying unions is just another way for the Shirkers to make sure that we never do.

This post was originally posted on Our Future on December 13, 2012. Reprinted with Permission.

About the Author: Richard Eskow is a well-known blogger and writer, a former Wall Street executive, an experienced consultant, and a former musician.  He has experience in health insurance and economics, occupational health, benefits, risk management, finance, and information technology.  He has a somewhat unique perspective on the current financial crisis, since he worked for AIG for a number of years (although not in its infamous Financial Products division). Richard has consulting experience in the US and over 20 countries. Past clients include USAID, the World Bank, the State Department, the Harvard School of International Public Health, the Government of Hungary, as well as corporations and investors. He has experience in financial and data analysis, systems design, operations, and management.

Women Haven’t Gained A Larger Share Of Corporate Board Seats In Seven Years

Wednesday, December 12th, 2012

In addition to grappling with a persistent pay gap, working women also have to deal with extreme difficulty ascending to powerful corporate positions, according to a report by the research organization Catalyst. As Bryce Covert explained at The Nation:

Women held just over 14 percent of executive officer positions at Fortune 500 companies this year and 16.6 percent of board seats at the same. Adding insult to injury, an even smaller percent of those female executive officers are counted among the highest earners—less than 8 percent of the top earner positions were held by women. Meanwhile, a full quarter of these companies simply had no women executive officers at all and one-tenth had no women directors on their boards. [...]

Did this year represent a step forward? Not even close. Women’s share of these positions went up by a mere half of a percentage point or less last year. Even worse, 2012 was the seventh consecutive year in which we haven’t seen any growth in board seats and the third year of stagnation in the C-suite.

Overall, more than one-third of companies have no women on their board of directors. But economic evidence shows that keeping women out of the board room is a mistake. According to work by the Credit Suisse Research Institute, “companies with at least one woman on the board would have outperformed in terms of share price performance, those with no women on the board over the course of the past six years.”

This post was originally posted on Think Progress on December 11, 2012. Reprinted with Permission.

About the Author:  Pat Garofalo is the Economic Policy Editor for ThinkProgress.org at the Center for American Progress Action Fund. Pat’s work has also appeared in The Nation, U.S. News & World Report, The Guardian, the Washington Examiner, and In These Times. He has been a guest on MSNBC and Al-Jazeera television, as well as many radio shows. Pat graduated from Brandeis University, where he was the editor-in-chief of The Brandeis Hoot, Brandeis’ community newspaper, and worked for the International Center for Ethics, Justice, and Public Life.

"Wal-Mart is Not a Feudal Manor"

Friday, November 30th, 2012

The manager at the Southside Walmart in Paducah, Ky., might have figured he’d quashed the protest at his store.

After all, he made James Vetato and three other OUR Walmart picketers leave from near the front door.

The quartet retreated, but to regroup at the entrance road to the busy shopping center the Walmart store anchors.

They redeployed under a big blue and white Walmart sign and held up hand-lettered placards reading, “ON STRIKE FOR THE FREEDOM TO SPEAK OUT,” “RESPECT ASSOCIATES DON’T SILENCE ASSOCIATES,” “ULP [unfair labor practice] STRIKE” and “WALMART STOP BULLYING ASSOCIATES WHO SPEAK OUT.”

Vetato, his wife, Trina, Rick Thompson and Amber Frazee were among many members of Organization United For Respect at Walmart — “OUR Walmart” for short — who struck and walked picket lines at stores in a reported 100 cities and towns in 46 states on Thanksgiving night and on Black Friday, the busiest shopping day of the year.

The group, which numbers thousands of current and past Walmart employees across the country, wanted to focus national attention on Walmart’s abuse of its workers, Vetato said.

The world’s richest retailer, Walmart is known for paying low wages to its employees, called “associates.” In addition, Walmart is fiercely anti-union.

Said Trina Vetato:

“People honked and waved to show their support, and they slowed down to read the signs. Some people stopped and told us they supported what we were doing.”

Vetato works at the Southside store. Her husband did, too, until he said management drove him to quit.

Frazee is employed at another Walmart in historic Paducah, where the Tennessee and Ohio rivers merge. She and Vetato expect retaliation from Walmart management.

“They said that there will be consequences,” Vetato said. “I’ll probably get fired or put on suspension or something. But it’s well worth it to me.”

Frazee agreed. “All we want is respect,” she said.

The Vetatos, Frazee and Thompson handed out leaflets explaining, “We are the life-blood of Walmart, yet we are not always treated with respect.”

Some of the literature outlined a “Declaration of Respect,” which nearly 100 OUR Walmart members, including James Vetato, delivered to Walmart’s top management at company headquarters in Bentonville, Ark.

The declaration calls on Wal-Mart management to

— Listen to associates.

— Respect associates and recognize their right to free association and free speech.

— Allow associates to challenge working conditions without fear of retribution.

— Pay a minimum of $13 an hour and make full-time jobs available for associates who want them.

— Create dependable and predictable work schedules.

— Provide affordable health care.

— Furnish each associate a policy manual that ensures “equal enforcement of policy and no discrimination” and affords every employee an “equal opportunity to succeed and advance in his or her career.”

The four Paducah protestors brought a cardboard box filled with OUR Walmart literature. They said management tried to keep it out of the store. Shoppers helped get it in.

“On Thanksgiving night, a community member took one of the fliers and taped it to the front of his shirt and walked through the store to get the word out to everybody,” Trina Vetato said.

Thompson, a Pittsburgh union activist, came to Paducah to join the picket line. When a member of management tried to stop him from handing out leaflets, another customer came to his aid.

Explained Thompson, a member of Vacaville, Calif.-based International Brotherhood of Electrical Workers Local 1245:

“The manager started bullying me for peacefully disseminating information, which I had the right to do. When the customer saw the manager walk away, she said ‘Give me a stack of those. I’ll take them in for you and pass them out.'”

Thompson said OUR Walmart is not trying to drive Walmart out of business. “We are not asking a single customer to turn away. We are fighting to win respect and improve working conditions for all associates.

“We want employees to have a chance to form their own association and have their own concerted actions without retaliation and unfair treatment. Walmart is not a feudal manor. The associates are not serfs. Walmart does not own every aspect of their lives.”

This post was originally posted on November 24, 2012 at Union Review. Reprinted with Permission.

About the Author: Berry Craig is a recording secretary for the Paducah-based Western Kentucky AFL-CIO Area Council and a professor of history at West Kentucky Community and Technical College, is a former daily newspaper and Associated Press columnist and currently a member of AFT Local 1360. His articles can also be featured on AFL-CIO NOW.

President Of Florida-Based Company Threatens To Fire Employees If Romney Loses

Monday, November 5th, 2012

 With fewer than 72 hours before polls begin to close, another report has emerged of a company owner strongly urging his employees to vote for Mitt Romney over Barack Obama, claiming that their jobs are potentially on the line if Obama wins re-election.

Cliff Otto, president of the Florida-based Saddle Creek Corporation, circulated an email to staff this week explaining that, while “we do not support candidates based on their political affiliation,” Romney’s positions are in “the best interest of our company, and therefore our jobs and our future”:

In the past, Saddle Creek has not felt it imperative that we communicate with our associates regarding the political issues that affect our business. This year the positions taken by the two presidential candidates with regard to these issues are starkly different. As such [we] feel it would be wrong for us not to share with you the company’s position on just a few of the critical issues and, at the same time, how each of the two candidates compare to our position. … We do not support candidates based on their political affiliation. We do support candidates that share our positions with regard to the key issues facing our company and our country. Thank you for considering what Saddle Creek believes is in the best interest of our company, and therefore our jobs and our future.

An accompanying flyer, obtained by MSNBC’s Up With Chris Hayes, highlights by position — not candidate — which would be more beneficial for Otto’s employees’ jobs:

Otto is not alone in his effort to sway his employees’ votes by insinuating that they might lose their jobs should Obama win. Similar tactics have been used by other CEOs across the country who warn of “consequences” should Romney lose on November 6th. One CEO likened the threats to telling employees to “Eat your spinach.”

Indeed, it may be a concerted intimidation effort by right-leaning CEOs that is orchestrated from the top. Just a month ago, leaked audio captured Romney urging conservative business owners to tell their employees who to vote for.

This article was originally posted on November 4, 2012 at Think Progress

About the Author: Annie-Rose Strasser is a Reporter/Blogger for ThinkProgress. Before joining American Progress, she worked for the community organizing non-profit Center for Community Change as a new media specialist. Previously, Annie-Rose served as a press assistant for Representative Debbie Wasserman Schultz. Annie-Rose holds a B.A. in English and Creative Writing from the George Washington University.

NLRB Chairman: New Penalties Needed for Union-Busting of Undocumented Workers

Tuesday, October 30th, 2012

NEW YORK CITYNational Labor Relations Board Chairman Mark Pearce says his agency could pursue new remedies to punish employers who retaliate against undocumented immigrants for organizing. Last year Pearce interpreted a 2002 Supreme Court decision to rule out back pay as a remedy in such cases, limiting the NLRB’s options of financial penalties.

Interviewed Friday by Working In These Times, Pearce called the tension between immigration law and labor law “extremely frustrating,” and the tools available for protecting undocumented workers against employer crimes “insufficient.”

“The concept of ‘made whole’ by us needs to be examined,” said Pearce, referring to a legal guideline for NLRB remedies. “Perhaps there are things within that concept that we can utilize. Now I can’t articulate what they are, because we’ve got to consider it.”

Pearce made these comments following a forum hosted by Cornell University’s ILR School. In his remarks to the assembled attorneys, Pearce said he “had angst over” his ruling in the NLRB’s Mezonos Maven Bakery case last year. In that 3-0 decision, the NLRB found that a bakery that fired a group of workers who had collectively complained about a supervisor could not be required to pay them back pay, because they were undocumented.

The Mezonos decision cited the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. NLRB, which overturned an NLRB ruling granting back pay to an undocumented worker who was fired after trying to form a union (the NLRB is tasked with enforcing and interpreting private-sector labor law, but federal courts have the power to overturn the NLRB). Writing for a 5-4 majority, then-Chief Justice William Rehnquist said that “awarding back pay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations.”

At Friday’s forum, Pearce said that the Hoffman decision had forced him to deny back pay in Mezonos and “continues to create that problem where an employer could get away scot-free” with firing undocumented union supporters. Pearce said he had “struggled with the tension between the National Labor Relations Act, immigration law, and the rights of undocumented workers.” While the NLRB can still use non-economic remedies in such a situation, like requiring a company to post a notice saying it will comply with the law in the future, Pearce said that “seems a little empty” without a financial cost attached.

After the forum, Pearce told Working In These Times that the tension he’d identified could be resolved if a future Supreme Court case offers the NLRB “a more promising, or a more significant remedy to be applied for discriminatees who happen to be undocumented. But otherwise, it would probably have to take a change in the law.”

In the meantime, said Pearce, “the board has a certain degree of discretion with respect to the remedies.” He noted that the NLRB is legally empowered to “make whole” workers who are illegally punished or discriminated against, but is barred from assessing punitive damages against employers. That means that financial penalties against companies generally come in the form of back paywhich Mezonos took off the table for undocumented workers. “So exploration would have to be had,” said Pearce, “as to the full parameters of [the 'made whole'] concept, to see whether or not a remedy could be fleshed out [for] those kinds of violations.”

Such a move “would be significant,” said Ana Avendaño, the AFL-CIO’s director of immigration and community action. “Because under the current structure, employers basically get a free bite at the apple. They can violate the law with impunity.”

Interviewed Saturday by phone, Avendaño disputed Pearce’s view that the Supreme Court’s Hoffman ruling required the NLRB to deny back pay in Mezonos. She said that a lower-level NLRB judge had been right to find that Hoffman didn’t apply in Mezonos, because in Hoffman it was the undocumented worker that had been proven to have violated immigration law, and in Mezonos it was the employer. Avendaño, who was among the attorneys arguing for back pay in Mezonos, said she hopes the second circuit court will reject the NLRB’s Mezonos reasoning and send the case back for a new ruling.

But Avendaño echoed Pearce’s criticism of Hoffman, which she said “has a chilling effect” on undocumented immigrants seeking to organize at work. Ultimately, she said, new legislation will be necessary to restore such workers’ rights, perhaps as part of a broader immigration reform.

Still, Avendaño welcomed the NLRB Chairman’s comments about the possibility of other remedies under current law. Given that the law bars punitive damages, and Hoffman restricts back pay awards to workers, Avendaño said, “one idea that advocates haveand the legal basis for this is soundis that there could be a fund established, where employers would still have to pay the back pay, but it would go into the fund, not directly to the worker.”

Avendaño said such a “special remedy” would be “less than ideal,” but would be an improvement over the status quo, where employers face a “perverse incentive … to just violate the immigration law, and then violate the [National Labor Relations Act], and have no responsibility for it.”

If a fitting test case reaches the NLRB, said Pearce, “We would have to see whether the board has that kind of authority, or is there something that causes us to feel that we are able to create an exception to the standard remedy.” Avendaño said the AFL-CIO hopes that will be the case: “If there was an opportunity, and we may have one soon, then we certainly are going to advance that argument.”

This article was originally posted on In these Times on October 29, 2012. Reprinted with permission.

Do Workers with Criminal Backgrounds Deserve a Second Chance?

Thursday, March 31st, 2011

Michelle ChenThe promise that 2011 will be a year of economic recovery rings hollow for the workers held back by their past. For many who’ve been in trouble with the law, not even a lifetime is enough to recover from a bad rap sheet.

A brand-new report by the National Employment Law Project shows that people with criminal backgrounds, even those who’ve paid their dues to the state, are unfairly shut out of employment opportunities and denied the second chance they need to overcome their past.

Today, about one in 100 adults in America are in the prison system. Prison releases have exceeded 700,000 per year, according to recent federal data . And many are headed for a job market where the vast majority of employers screen applicants for criminal histories. According to NELP, “more than one in four U.S. adults—roughly 65 million people—have an arrest or conviction that shows up in a routine criminal background check.” All that adds up to a dead end for people who have a criminal taint on their record.

In the midst of fierce competition for scarce jobs, a second chance is hard to come by for people with criminal backgrounds—which could range from an arrest for smoking a joint decades ago, to a more serious conviction for which a sentence has been fully served. NELP’s research reveals that employers across the country routinely post job ads that include blanket clauses disqualifying applicants with criminal records. A compilation of online job listings includes phrases like, “You must not have any felony or misdemeanor convictions on your record. Period.”

(Image via Ban the Box campaign, The Defenders Online)

(Image via Ban the Box campaign, The Defenders Online)

But civil rights advocates aren’t letting biased employers get the last word. They have launched legal challenges against these exclusionary hiring policies under the framework of Title VII of the Civil Rights Act, which bars discrimination on the basis of race, gender and other protected categories. Since blacks and Latinos are historically overrepresented throughout the criminal justice system—in arrest rates as well as length of the sentence—advocates argue that the words “need not apply” in effect act as a structural barrier to opportunity in communities of color.

The downward spiral of exclusion and marginalization is intensified when the job market is increasingly under the grip of mega-companies. People seeking entry-level jobs in their communities may be completely at the mercy harsh screening policies at major employers like Radioshack, Aramark, and, that bastion of legal rectitude, Bank of America.

There are reasonable arguments for screening applicants for criminal histories, particularly if employers have workplace security concerns. Yet, as NELP points out, there is often little if any connection between a rap sheet and the personality, goals or capacities of the person behind it. A minor drug charge during one’s youth may look like a glaring blight on an application form. But the employer who screens her out automatically will never hear the job-seeker explain in an interview how she’s been sober,  steadily employed for the past ten years, or how the police record was erroneous in the first place and never corrected.

The data, in fact, shows that giving the benefit of the doubt to people with less-than-pristine records pays dividends for employee, employer and society as a whole. In the long run, NELP argues:

The irony is that employers’ attempts to safeguard the workplace are not only barring many people who pose little to no risk, but they also are compromising public safety. As studies have shown, providing individuals the opportunity for stable employment actually lowers crime recidivism rates and thus increases public safety.

A few progressive employment and training programs have emerged to address some of these barriers, but social services alone cannot make up for the economic toll of a criminal justice system aimed at punishment and not rehabilitation, much less helping people build a future from a rough past.

In addition to racial disparities, exclusionary policies may have special impacts on women struggling to to reintegrate into work and family life after prison. A 2008 study published by University of California-Berkeley School of Law examined the economic prospects of formerly incarcerated women and found hidden obstacles that prevent them from staying employed (and out of jail).

When you peel back the stigma of a criminal record, you’ll find much more troubling histories underlying their struggles, including physical and sexual abuse, health problems, and the hardships of long-term separation from their children. Focus group studies with women in the Bay Area suggested that the social services and programs in their communities were inadequate for helping overcome these hurdles.

One of the lead researchers in the study, Monique Morris, told In These Times of how legal barriers to employment, coupled with misguided policies within prison, sometimes reach the height of absurdity:

In a number of instances, women were qualified to work in a field because of work experience while incarcerated, but precluded from working in that same area upon their release because of their criminal record. For example, a number of women worked as fire fighters while incarcerated. But they could not do that work on the outside.

According to the study’s analysis of job applications showing a woman had done time versus those that didn’t, “formerly incarcerated women were 31 percent less likely to receive a positive response from potential employers.”

The consequences go beyond the sting of rejection. When an unalterable stigma is combined with long-term unemployment, being permanently branded as a criminal can lead to crippling self-doubt, frustration, and in some cases, desperation that is deep enough to drive someone back into crime.

Over time, thousands of individuals who are asked to “check the box” on an application form are slowly drained of the will to put their lives back together. That only adds to the sense of hopelessness dogging the country’s working class—building a social prison that our “recovering” economy can ill afford.

About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at [email protected]

This blog originally appeared In These Times on March 24, 2011. Reprinted with Permission.

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