(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)
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This time, grill some burgers, raise a glass of beer and drink a toast to Laborless Day, in honor of the 10% to 20% of the American workforce who cannot find work, or anything meaningful that pays a living wage.
The current state of labor affairs in the United States is this: We’ve just barely survived eight years in which corporations amassed even more political power and societal control than they had before.
The military-industrial complex has continued to provide us with war, the banking industry gave us substandard mortgage derivatives but won’t loan money to people with good credit, and the insurance industry forced us to buy home insurance, car insurance, flood insurance and life insurance, but refused to sell us health insurance. Labor unions are on the run in many states, and the minimum wage will buy you a dry spot under the U.S. 90A bridge.
The Captains of Industry have had their way, more or less, for decades, and never more than now. You’d think they’d be flying high, but instead, on the eve of this Laborless Day, they find themselves in a quandry.
They’ve re-learned the hard way that their stock appreciation, bonuses, vacation mansions and hot cars accrue in proportion to American consumer spending.
Economists such as Michael Mandel may argue otherwise, but American consumer spending accounts for in the neighborhood of 70% of the Gross Domestic Product, which is roughly to say, our economy. (Mandel makes a good argument that the consumer impact is less than that, but doesn’t count consumer wages confiscated as taxes, which are then spent on government programs and, yes, do have an economic impact.)
After taking a financial beating in a variety of ways, directly or indirectly from numerous corporate captains, the American consumer has lost the ability to spend. The big shots still are living high on the fuel that was stuffed into the pipeline before the Last Straw, but soon nothing will be left but fumes.
Thus we find the Captains of Industry, through major voiceboxes such as the Wall Street Journal, playing a dual role. Yes, as Republicans they still have to diss the Democrats’ stimulus spending (while forgetting Bush Jr.’s). But at the same time, because consumer spending is predicated on consumer confidence, they must declare that the glass is half full and in fact the recession, which was never all that bad to begin with, is really pretty much over and we’re all in recovery now.
Sure, guys. Paper me over with charts explaining how, technically, the bell curve has rung while Southeast Asian production rates clearly are leveling off and job losses truly are not gushing out on the ground as fast as they were just a month ago.
Meanwhile, back in the real world, almost every middle-class American who still has a job and is not employed in the medical industry faces the very real prospect of sudden job loss. In Detroit, by one measure, 17.7% of the workforce was out of work by the end of July. In the El Centro, Calif., market, for some reason, the unemployment total hit 30.2%.
Some, especially over at the Journal, will say these figures are overstated, that the Labor Department figures show the average U.S. unemployment rate at the end of August was “only” 9.7%.
I say that’s more than bad enough. But it’s also an example of how figures lie.
The Labor Department also tracks more meaningful numbers, which I believe the media should use to provide a more accurate picture of U.S. employment.
Like this one: “Total unemployed, plus all marginally attached workers, plus total employed part time for economic reasons, as a percent of the civilian labor force.”
“Marginally attached” workers are those who have run out of benefits, been unemployed for a year or more but are available for a job and want one. The part-time workers referred to really want full-time jobs but can’t find any.
In August of 2008, as the current collapse began, this more accurate average U.S. unemployment rate stood at 10.7%. One year later, it stands at 16.8%. I shudder to think what this rate is in Detroit.
This holiday weekend, be as patriotic as you are on holidays honoring our brave military members who died serving their country. Honor the American working man and woman, salt of the Earth and the blood that keeps our country’s heart beating.
But also honor your fellow Americans, almost one in five now, who want to do their part, secure their families and help spend the country back into recovery with honest work, only there isn’t enough to go around.
About the Author: Bob Dunn is a writer, consultant and web developer based in Richmond, Texas. He can be reached via Bob Dunn’s Brazos RiverBlog.
This article originally appeared in Bob Dunn’s Brazos River Blog on September 5, 2009. Re-printed with permission from the author.
(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)
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Labor Day has lost its luster as a holiday. First celebrated on September 5, 1882 in New York City, the day consisted of a parade and celebrations to exhibit “the strength and esprit de corps of the trade and labor organizations.” Now the holiday has been downgraded to back yard bar-b-ques and end of the summer getaways. The question is: who is resting on Labor Day? Certainly 15 million American’s aren’t taking the day off- because they don’t have job, as “real unemployment” rates have climbed to 16.8%.
Many of the older generation aren’t resting on Labor Day. They can’t afford to quit their jobs and retire. And, according to new data, our youth aren’t resting either. Nearly one in three workers under age 35 will be laboring on Labor Day, and almost half of them are working more than 40 hours per week. A full 50% do not have family leave time, at an age most likely to be growing a new family, 40% do not have sick leave and 33% don’t have any vacation time at all. (AFL/CIO, 2009). Not much “esprit de corp” to celebrate this year.
These grim statistics, and many more, were released in a landmark report called, “Young Workers A Lost Decade” conducted in July 2009 by Peter D. Hart Research Associates for the AFL-CIO and their affiliate Working America. The nationwide survey of 1,156 people follows up on a similar survey the AFL-CIO conducted in 1999.
The survey states; “young workers, (in 1999), were economically insecure, concerned about deteriorating job quality, distrustful of corporate America–and yet stubbornly hopeful about the future. Ten years later, the change is shocking. The status of young workers not only has not improved; its dramatic deterioration is threatening to redefine the norm in job standards. Income, health care, retirement security and confidence in being able to achieve their financial goals are down across the board. Only economic insecurity is up.”
An astounding one third of workers age 35 and under live at home with their parents – because they cannot afford housing on their own. Our best and brightest are frozen in place, while simultaneously running in circles. Many can’t afford to go to college, yet, those who do have upper level degrees can’t find jobs in their field, and are overwhelmed with student loans. Workers age 35 and under can’t afford health care, can’t get ahead, or save for the future.
AFL/CIO Secretary-Treasurer Richard Trumka summed up the report’s findings this way:
“We’re calling the report “A Lost Decade” because we’re seeing 10 years of opportunity lost as young workers across the board are struggling to keep their heads above water and often not succeeding. They’ve put off adulthood–put off having kids, put off education–and a full 34 percent of workers under 35 live with their parents for financial reasons.”
Check out this short You Tube video clip of young professionals most affected by the economy speaking their minds:
The findings from this study are significant, and deeply distressing. The days of securing a job as a bank teller or in sales; settling down, buying a house and starting a family are over. The upcoming generation will emerge as the first to be worse off than their parents, and something must be done.
I have written previously about how the United States is one of the few countries that does not mandate paid vacation time for workers. We give a nod to Labor Day, but we do not believe in it. Stress related illnesses from our overworked population are the greatest burden on health care, but we do not support any measures for prevention. We complain to our government to fix our problems, but we don’t eat properly, exercise and meditate – what’s wrong with us anyway?
On Labor Day, while it is important to rest our bodies, we cannot rest in our determination to change the climate and opportunities in the work force. We cannot put our heads in the beach sand and ignore the far reaching implications of the “Lost Decade”. It is exactly the fire, imagination and energy of our nation’s young professionals that will carry us into a new era of prosperity.
While the outlook looks pretty grim for this bunch, there is a bright side to this group- they are incredibly resilient, creative and interested in service. Our working class, age 35 and under are unusually politically active – at the polls and in civic affairs, and are resoundingly optimistic President Obama can help turn things around for them to move forward as future leaders.
If we can give our youth a little room – they can get the job done. Let’s look at the health care reform issue from their perspective. While the politicians are punting sound bytes like Hail Mary’s, check out a creative approach in the “SuperMom Healthcare Truth Squad.” Picture a bunch of young women donning bright red capes and flocking in major cities across the nation to distribute information about why health care reform will help bring economic security to the nation. Kristin Rowe-Finkbeiner, founder of MomsRising.org. writes,
“why do moms care (about health care reform?) Not only are families struggling with getting children the healthcare coverage they need for a healthy start, but 7 out of 10 women are either uninsured, underinsured, or are in significant debt due to healthcare costs.”
Julia Moulden writes about the “New Radicals” who are making money – and making a mark on the world, through social change and empowering disadvantaged workers world wide. Recently, she highlighted a new “30-something” company that helps fund entrepreneurial projects, via mini pledges instead of investors, called Kickstarter.
The original Labor Day was born in during the peak of the Industrial Revolution as a backlash to workers being on the job 12 hours a day, 7 days a week in order to make a basic living. Hmmm. Sound familiar? Let’s take back Labor Day for the purpose it was created, and address the basic worker’s rights to a decent paying job, health benefits, paid leave time and a positive work environment in which to thrive. And, yes, let’s remember to Rest.
About the Author: Kari Henleyis currently President of the Board of Directors at the Women & Family Life Center. She organizes the Association of Women Business Leaders (AWBL), and runs her own training and consulting practice. Kari is an avid writer, active in her community, and an expert in group facilitation. She has worked for the past 17 years with corporate, non-profit and public audiences. Past clients include Yale Medical School resident program, Fed Ex, Hartford Hospital, St. Francis Hospital, Price Waterhouse Coopers, Washington Trust Co., CT Husky program, the American Cancer Society. For more information, email: karihenley@comcast.net.
(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)
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When I was growing up Labor Day was the most, maybe the only, sacred holiday of the year. My parents were both ardent labor union activists. My mom was a member of Local 1199 in NY – the health care workers union. She worked in a pharmacy and that was the union for workers there. My dad was a member of District 65 which was then part of the Retail, Wholesale, Department Store Workers Union – he was a camera salesman. They both served as shop stewards during my childhood and I think before I was born they both held other positions in their unions with more responsibilities.
My parents met at an event my mother’s union was holding. They were showing a film and my father was hired as the projectionist, in the days before you could just slip a DVD into a computer to watch a film. I don’t know too much about their courtship, but their union came about because of union activities. I’m pretty sure that is not a unique situation.
I grew up going to Labor Day parades in NY – my stroller covered with streamers. I was so pleased when I got to be in a parade as a union member myself. It was 198? , the year that Reagan went all out to destroy PATCO. I belonged to the International Brotherhood of Electrical Workers, Local 3; I worked for a cable television company.
For this Labor Day, I’ll be going to a rally in Boston Common which will both celebrate labor, and the need of all people to have good health care.
The issues that arise on Labor Day are so closely related to an Ethical Culture view of the world. In Ethical Culture we follow the Kantian notion that all people are ends in and of themselves. We attribute worth and treat them with dignity and respect just because we are people. And here’s the part that’s most related to labor issues – we do not use people as means to reach our own ends. Seems to me that point has been missed by lots of people in the corporate and business world. I’m glad to say that there are also many who bring a very ethical and caring approach to their endeavors, there are those who form cooperatives, there are those who consider others and the natural world around them as they conduct their business.
But there are also many who see a business primarily as an opportunity to use the labor of others to make a lot of money for themselves. When workers join together in unions they have a chance to have greater influence on their working conditions, on how much they are paid for their work and what benefits they receive. The share holders of a corporation are very much like a “union” of business owners, looking out for what is best for them.
Corporations do not have to jump through hoops to organize the people with an interest in the profits of the corporation. Yet, others, workers, often do need to jump through hoops, or around other obstacles to be able to organize in labor unions. Even though workers, employees of a corporation also have an interest in the success of a business, they are not usually allowed to have input into the decision making which affects the business, and certainly not into the decision making which affects them directly.
Labor unions have been successful in providing a strong voice for employees, both on an individual level and on issues of local and national importance. At a time when unemployment levels in this country are incredibly high, I seeit as especially important that workers can organize for good working conditions. While many might say this is a time when businesses can’t afford to accommodate unions, I see it as a time when even more attention needs to be paid to not taking advantage of people – workers- not using people as a means for creating profit for some, but not for the people doing the work. As I understand it, the Employee Free Choice Act is a bill which would create a fairer process for union organizing. You can find out more about it in the Ethical Action section of the newsletter.
What is your experience with labor unions? How do you see a connection between Ethical Culture and Labor Day or labor issues?
(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)
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On Tuesday September 5, 1882, 10,000 workers marched from city hall to Union Square in New York City, holding the first-ever Labor Day parade. Despite the threat of losing their jobs, participants took an unpaid day off to honor American workers and draw attention to grievances they had with employers.
And the list of grievances was long. During this time, the average American worked twelve hour days, seven days a week, just to make a basic living, with children as young as six toiling alongside adults.
As years passed, more states began to hold these parades, but Congress would not legalize the holiday until 12 years later. A bloody strike by railway workers brought the issue of workers’ rights to the public eye and provoked Congress to officially make the first Monday of September Labor Day.
Today, it’s not uncommon to hear the phrase “Unions: The Folks Who Brought You the Weekend.” And the saying is true: unions won the eight-hour day standard we all enjoy today. What many people don’t realize is that workers and their unions had to fight for the eight-hour day for nearly 3/4 of a century (beginning in August 1866) before any national reform was enacted. The dream of an eight-hour work day finally became a reality in 1938, when the New Deal’s Fair Labor Standards Act made it legally a full day of work throughout the United States.
The Struggle Continues
Although many Americans have now come to associate Labor Day as just a day off from work or the end of summer relaxation, it’s important not to forget the sacrifices of our brothers and sisters, whose brave acts earned us the working rights we now possess. Unions have historically laid the groundwork for impressive grassroots campaigns to strengthen America’s middle class and rebuild the economy in hard times. As we face the greatest recession since the Great Depression, unions continue to be at the heart of efforts to pass healthcare reform, restore economic balance and bring prosperity to all Americans.
This Labor Day, let’s remind members of Congress just how many working families are still struggling to make ends meet under the strain of skyrocketing health care costs. Help send Congress back to DC with a mission to reform healthcare by joining us at send-off rallies across the country.
Events being held by SEIU and HCAN across the country on Labor Day, September 7th in Arkansas, Colorado, California, Florida, Massachusetts, Michigan, Montana, New Hampshire, New York, Ohio, Pennsylvania, South Dakota and Washington state are listed after the break.
About the Author: Kate Thomas is a blogger, web producer and new media coordinator at the Service Employees International Union (SEIU), a labor union with 2.1 million members in the healthcare, public and property service sectors. Kate’s passions include the progressive movement, the many wonders of the Internet and her job working for an organization that is helping to improve the lives of workers and fight for meaningful health care and labor law reform. Prior to working at SEIU, Katie worked for the American Medical Student Association (AMSA) as a communications/public relations coordinator and editor of AMSA’s newsletter appearing in The New Physician magazine.
This post originally appeared in the SEIU blog on September 7, 2009. Reprinted with permission by the author.
(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)
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At Workplace Fairness, Labor Day isn’t just another day off from work or the last day of summer. And while this former Kansas City resident has nothing against barbecues, the day is much more than one of the last chances of the season to grill outdoors with family and friends. We think that Labor Day is a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. In commemoration of Labor Day, we’re excited to launch two new website features, our “Taking Back Labor Day” blog carnival, and our 2009 Labor Day Report, Change Has Come to the Workplace.
Throughout September, Today’s Workplace will be hosting our second annual “Taking Back Labor Day” blog carnival. Our guest bloggers, who will include many of the leading thinkers on labor and employment issues, will focus on why the labor movement is still important and address some of the most critical issues affecting workers today. We are also inviting YOU to participate: either by preparing a blog post for submission, or by making comments and using “Taking Back Labor Day” as an opportunity to have a real conversation about the future of the American workplace. Tune in every weekday in September at www.todaysworkplace.org to see the latest “Taking Back Labor Day” post, and join right in!
It’s also time for a look back at the previous year in the workplace, and we do so in our 2009 Labor Day Report, “Change Has Come to the Workplace.” In the past year, there was no more important development affecting the workplace than the election of President Barack Obama. After eight years of an Administration that could generally be characterized as hostile to workers’ rights and more interested in promoting business interests than ensuring employees were protected, the election of a more worker-friendly president has the potential to bring about significant change. In Change Has Come to the Workplace, by legal intern Hannah Goitein (The George Washington University Law School Class of 2011), we highlight the changes we have already seen in the last several months, as well as talk about what is on the horizon.
We hope these two new website features provide much interesting food for thought for you on this Labor Day weekend, while you’re enjoying that barbecue or last dip in the pool, or getting your children ready to start school on Tuesday. Have a great Labor Day weekend, but don’t forget who makes it possible – the American worker.
(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)
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For far too many women, work isn’t working. That’s why passage of the Employee Free Choice Act (EFCA) is so critical.
Women still earn only 78 cents for every dollar earned by men – and for African American women and Latinas the gap is even wider. Far too many working women labor in jobs that do not provide a family-supporting income. Far too many women, particularly low-wage women, lack paid sick days to care for themselves during occasional illness. And far too many lack even a single paid sick day to care for a sick child.
As we mark Labor Day 2009 – a day to pay tribute to the historic achievements and contributions of workers — it’s time to call attention to this fact: Union membership is one sure way to address gender-based workplace disparities and unionization can provide important economic security for low-wage women and their families.
According to “Unions and Upward Mobility for Women Workers,” a December 2008 report by the Center for Economic and Policy Research, in the 15 lowest-paying occupations, union members not only earned more than their non-union counterparts, they were also 26 percentage points more likely to have employer-provided health insurance and 23 percentage points more likely to have a pension plan.
“For women, joining a union makes as much sense as going to college,” said John Schmitt, author of the upward mobility study. “All else equal, joining a union raises a woman’s wage as much as a full-year of college, and being a member of a union raises the chances a woman has health insurance by more than earning a four-year college degree.”
As the entire country debates health reform, it’s important to note that health insurance is just one of the positive workplace standards unions can provide for working women. Union representation is also one of the strongest predictors of family-flexible workplace policies.
More than 60 million American workers lack a single paid sick day to care for themselves when ill, and nearly 100 million workers lack paid sick time to care for an ill child. Especially in this economy, no one should lose a job just because they or a loved one gets sick. Companies with 30 percent or more unionized workers have been documented to be more likely than non-union companies to provide paid time off to care for sick children (65 percent compared to 46 percent).
So, how can women work for workplace change?
Speak out in support of the Employee Free Choice Act. EFCA would put the choice of how to form a union back into the hands of workers. A free choice means that workers would have the option of unionization if a majority of them sign up. EFCA will protect women and men who join together to negotiate with their employers for health care, fair wages, retirement security and paid sick days.
It’s critical that we pass this federal legislation. Tell your family, friends, colleagues and neighbors about EFCA. And, most important, let your members of Congress know that you support it and expect their support as well.
On this Labor Day, it’s time to ensure that the workplace work for us all.
About the Author: Linda Mericis Executive Director of 9to5, National Association of Working Women, an inclusive multi-racial membership organization founded in 1973 to strengthen the ability of low-income women to win economic justice through grassroots organizing and policy advocacy.
Under Linda’s leadership, 9to5 has won important victories on minimum wage, good jobs, work-family, anti-discrimination, pay equity, welfare, child care and other issues affecting low-income women. Linda has spent more than 30 years as a labor and community organizer. She also serves as an adjunct professor specializing in sexual harassment and other workplace issues.
Linda is a member of the Governor’s Colorado Pay Equity Commission, serves in the leadership of several state and national policy coalitions, and has received several awards for her work with and on behalf of low-income women, including the “Be Bold” Award presented by the Women’s Foundation of Colorado. She was recently appointed to the National Board of Directors of the American Forum, a progressive media organization.
(Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)
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We always knew it would take a fight to enact the kinds of sweeping reforms we need to fix the economy so that it really works for working Americans. The Employee Free Choice Act was never set to sail through Congress without opposition from the nation’s most anti-union employers. No one expects that it will be much easier to repair our broken immigration laws, overhaul flawed trade policy, improve retirement security or ensure that parents can finally afford time off work to welcome a newborn. But the sheer nastiness of the health care reform fight begs the question: if even modest reforms are this difficult for a popular Democratic President with large majorities in both chambers of Congress, how will we ever achieve the economic restructuring the nation needs?
One way to improve the odds that working people will have more to celebrate on Labor Days to come is to ensure that our cities get a special invitation to the national policy conversation. Picture it as a giant nationwide barbecue: gathered around the grill, cities can share local policy victories that have measurably improved the lives of their own residents – and can provide a successful model for other cities and for national action. Raising the profile of proven local policies may make the reforms proposed in Washington feel a lot less lonely.
San Francisco can share its own universal health care model, which currently provides 45,000 uninsured city residents with access to affordable primary and preventive care, prescriptions and lab tests through city clinics and participating private hospitals. The track record of Healthy San Francisco, as the program is known, should be informing the national health care debate to a far greater extent than it is.
Then there’s New York, where grassroots organizations citywide have teamed up with the State Department of Labor to educate employees and employers about workplace laws and identify cases where employers are illegally cheating their workers out of pay. The program, known as New York Wage Watch has attracted national controversy because it enlists unions in the effort to detect illegal activity by employers. The debate provides a perfect opportunity to consider which poses a greater threat to the country: the pervasiveness of employers stealing employee wages or the potential for groups – which have no special power to look at a company’s books or confidential documents – to intrude on private business as they uncover illegal activity? Lawbreakers may be right to fear that this local education and monitoring effort could go national.
Finally, Los Angeles should join the party. Home to the nation’s busiest seaport, Los Angeles realized it would never significantly improve air quality as long as the dirty diesel trucks servicing the port were owned by overstretched independent operators without the resources to buy or maintain cleaner vehicles. The city took bold action to both clean up the trucks and transform the drivers from exploited independent contractors into employees with a chance of improving their own working conditions. Not surprisingly, national business interests don’t like the idea of port truckers unionizing. But other port cities are considering the policy, with the potential to improve the quality of both air and jobs.
Federal policy battles cannot be won in a vacuum. Cities and towns across the country demonstrate the success of policies that improve the lives of working people. This is one Labor Day barbecue we should all attend.
About the Author: Amy Traubis the Director of Research at the Drum Major Institute. A native of the Cleveland area, Amy is a Phi Beta Kappa graduate of the University of Chicago. She received a graduate fellowship to study political science at Columbia University, where she earned her Masters degree in 2001 and completed coursework towards a Ph.D. Her studies focused on comparative political economy, political theory, and social movements. Funded by a field research grant from the Tinker Foundation, Amy conducted original research in Mexico City, exploring the development of the Mexican student movement. Before coming to the Drum Major Institute, Amy headed the research department of a major New York City labor union, where her efforts contributed to the resolution of strikes and successful union organizing campaigns by hundreds of working New Yorkers. She has also been active on the local political scene working with progressive elected officials. Amy resides in Manhattan Valley with her husband.
This blog was originally written for DMI Blog for Labor Day 2009. Re-printed with permission by the author.
The following is cross-posted on the Winning Workplaces blog. I thought it was appropriate for Today’s Workplace’s focus on taking back Labor Day. After all, this holiday should offer pause not just for workers, but for company leaders to reflect on how they can do more with less in this difficult economic environment. Enjoy, and feel free to drop a comment below.
– MH
According to two new, independent employer studies – this one and this one – while more than half of employers are planning to hire full-time employees over the next year, over half also don’t offer paid maternity leave (and those that do provide only around 50% pay, on average).
This recruiting/retention picture doesn’t add up for me. Companies that believe they’re seeing light at the end of the economic tunnel should focus on pleasing their current workforce and getting employees engaged – especially if they’ve had to make some wage or other concessions since the beginning of the recession. This is all part of sharing the recovery as well as the pain with workers.
This is not to say that companies that see more demand shouldn’t hire more talent to meet it. But while they make plans to do so, they should use this time as an opportunity to ramp up their benefit packages and other methods for improving productivity and commitment so their existing knowledge base is fully on board for the increased workload – and so they can serve as better ambassadors to acclimate new hires to the organizational culture.
Do you agree or disagree with my assessment that the above-mentioned studies represent conflicting human capital strategies?
About the Author: Mark Harbekeensures that content on Winning Workplaces’ website is up-to-date, accurate and engaging. He also writes and edits their monthly e-newsletter, Ideas, and provides graphic design and marketing support. His experience includes serving as editorial assistant for Meredith Corporation’s Midwest Living magazine title, publications editor for Visionation, Ltd., and proofreader for the National Association of Boards of Pharmacy. Mark holds a bachelor’s degree in journalism from Drake University. Winning Workplaces is a not-for-profit providing consulting, training and information to help small and midsize organizations create great workplaces. Too often, the information and resources needed to create a high-performance workplace are out of reach for all but the largest organizations. Winning Workplaces is changing that by offering employers affordable consulting, training and information.
This September Workplace Fairness and the Today’s Workplace Blog will be hosting our second annual “Taking Back Labor Day” blog carnival. Since last Labor Day our blog has been relaunched and improved and our website continues to grow. This year we were nominated for a Webby Award for Best Law Site and have increased our number of website visitors annually to over 400,000. Today’s Workplace is a source for commentary and discussion on the most important issues in labor and employment facing workers today.
Labor Day should be a time to remind people of why the labor movement is still important and to discuss and take inventory of critical issues affecting workers. We are inviting you to write an original blog for Labor Day. A few broad topics we’d like to touch on are as follows:
* Why is the labor movement still important?
* How can it be further revitalized?
* How can unions and employment lawyers work together more closely to advance the rights of workers?
* What things should the Obama administration be focusing on with regard to the labor movement?
* In 5, 10, 15 years, what will be the most important workplace issue to consider on Labor Day?
* Given the state of our economy and all that has happened since late 2008, what part should the labor movement play and how will it change?
Last year we ended up with 35 guest bloggers for “Taking Back Labor Day” and this year we hope to make it even bigger. If you do not have time to write an original piece we would also be happy to crosspost from your ‘home’ blogs if you would like to send something. Also we encourage all our contributors and readers to make comments and really turn the blogs into a conversation. Perhaps through this effort more people will remember that Labor Day is not just a good day to go shopping, but a day, as Peter McGuire put it circa 1882, to honor those “who from rude nature have delved and carved all the grandeur we behold.”
If you have any questions please feel free to contact Paula Brantner at blog@todaysworkplace.org. Articles can be sent as word documents to the aforementioned email address or if you are familiar with blog publishing we can set up a user account for you. If you would like to post a blog that is pertinent to our audience but not specific to Labor Day you are welcome to send it and we will post it later in the month.
Thank you for your time and consideration,
Shannon Lichtenberg & Paula Brantner
Workplace Fairness
When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.
Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:
When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.
Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases. And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.
Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day. (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.
1. Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.
There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years. Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above. Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case: either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.
But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case. Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true. Bottom line: the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad. They’re two completely different things that both happen to affect workers.
2. More cases are ending up in arbitration, instead of the courts.
Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,
“If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.”
Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.
3. More plaintiffs are going to state court instead of federal court.
In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.
However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.
4. More cases are being resolved by the EEOC pre-litigation.
Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.
But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.
Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.
Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.
So let’s review: reducing the number of cases in federal court, no matter what the reason, doesn’t:
explain why plaintiffs fare so much worse in front of federal district court judges than juries;
explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;
And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”
This time, grill some burgers, raise a glass of beer and drink a toast to Laborless Day, in honor of the 10% to 20% of the American workforce who cannot find work, or anything meaningful that pays a living wage.
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