A significant new frontier in the employment discrimination field is finding ways to protect employees who are fired, denied a promotion, or harassed just for being lesbian, gay, bisexual, or transgender (LGBT). Already, 12 states and the District of Columbia prohibit discrimination based on sexual orientation as well as gender identity and expression. (Another eight states have legal protections only for sexual orientation discrimination.) Those laws protect not only lesbian, gay, and bisexual employees, but also transgender employees–those whose internal sense of themselves as male or female (their “gender identity”) and/or the way they express that gender identity through their appearance, clothing, or behavior (their “gender expression”) differs from the anatomical sex they were designated at birth.

As described in Phil Duran’s excellent recent blog post, we may see similar protections enacted in federal law in the near future. LGBT advocacy organizations and others are currently lobbying members of Congress to support a version of the proposed Employment Non-Discrimination Act (ENDA) that would prohibit discrimination based on both sexual orientation and gender identity and expression.

In the meantime, though, courts have been increasingly open to claims brought on behalf of LGBT employees who face discrimination, using what may seem like an unexpected theory: sex discrimination. In 1989 the U.S. Supreme Court held, in a case called Price Waterhouse v. Hopkins, that federal sex discrimination laws protect employees who are discriminated against because of their perceived failure to conform with gender stereotypes–that is, women who are perceived as too masculine, or men who are perceived as too feminine. Price Waterhouse was a case brought by a woman who was denied a promotion at an accounting firm, despite her excellent performance, because her supervisors considered her too “macho.” They suggested that she ought to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held that discrimination based on that kind of gender stereotyping was a form of sex discrimination.

Even though no federal law currently prohibits employment discrimination based on sexual orientation or gender identity and expression, some LGBT employees have been able to successfully use gender-stereotyping arguments to bring sex discrimination claims when they are targeted because of their actual or perceived gender nonconformity. For instance, a sex discrimination claim may be viable when a gay man is harassed because of his co-workers’ perception that he is too feminine or when a lesbian is fired because she is seen as too masculine. Sex discrimination cases brought by lesbian, gay, or bisexual employees can be challenging to win, though, because some courts have expressed concern that the gender-stereotyping theory could be used as a back door means of recognizing what are “really” sexual orientation discrimination claims.  Unfairly, even when an LGBT employee is discriminated against because of gender stereotypes, some courts have denied relief simply because the plaintiff is gay or lesbian or because the discrimination appeared to be additionally motivated by anti-gay animus.

Interestingly, courts have been somewhat more receptive to gender-stereotyping claims brought by transgender employees.  In a groundbreaking decision just issued on September 19, 2008, Schroer v. Billington, a Washington, D.C. federal district court found that a transsexual job applicant had been discriminated against based on “sex.”  She had initially applied for the position–and been offered the job–while presenting as a man, but when she informed the employer of her intention to change her sex to female, the employer withdrew the offer.  The court not only found that gender stereotypes played an unlawful role in her hiring, à la Price Waterhouse, but also held that discrimination because a person changes their sex is “literally” sex discrimination – just as discrimination against those who convert from one religion to another would plainly constitute religious discrimination.  While no other court has yet recognized a sex discrimination claim based on transgender status per se, a number of other decisions have upheld sex discrimination claims brought by transgender employees where the employee can show some evidence that stereotypes played a role in the employee’s negative treatment.

The gender stereotyping theory of sex discrimination can provide valuable protection for lesbian, gay, bisexual, and transgender workers who face discrimination because of their perceived gender nonconformity, although some courts still fixate on the employee’s status as LGBT as a justification for denying an otherwise valid sex discrimination claim. That’s why it’s imperative to pass a fully inclusive version of ENDA: to make it clear to everyone, employers and employees alike, that it’s unlawful to mistreat employees because of traits like sexual orientation or gender identity and expression that have absolutely nothing to do with job performance.

About the Author: Ilona Turner is a staff attorney at the National Center for Lesbian Rights, a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.  Prior to law school, she was the lobbyist for Equality California, the state’s leading LGBT political organization, where she helped win the passage of groundbreaking legislation that significantly expanded the rights of domestic partners under California law and prohibited discrimination based on gender identity and expression in employment and housing.  She received her J.D. from the University of California, Berkeley.

The fun continued unabated at TodaysWorkplace.org, as we continued our Take Back Labor Day project for Week 3: September 15-19, 2008. Although we featured fewer posts this week than the previous two weeks, we still tackled many provocative issues that are frequently in the headlines.

On Monday, September 15, we kicked off the week with a post by Paul Bland of Public Justice. Bland, at the center of virtually all litigation to eliminate the scourge of mandatory arbitration in employment cases, tells us all about the pernicious practice that “require[s] current and prospective employees to sign away core constitutional rights as a condition of getting a job,” in the post “Labor in Exchange for One’s Rights.”

The next day, Tuesday, September 16, features Phil Duran of Outfront Minnesota. Duran, who represents transgender employees in discrimination cases, reminds us that not everyone is fully sharing in Labor Day’s promise when transgender employees lack full antidiscrimination protections under federal law, in the post “Sharing Labor Day with Transgender Workers.”

Wednesday, September 17 continued Week 3 with Jeff Blum of US Action. Blum tells us about US Action’s exciting new initiative to bring back some New Deal-era ideas, in the post, The Next New Deal. I think we’d all agree with him that:

We need to invest in our nation’s future and rebuild our middle class; creating good paying jobs instead of shipping them all overseas. No more race to the bottom, we need to begin our race to the top!

In our last post of the week, on Thursday, September 18, Tula Connell of the AFL-CIO, addresses issues straight out of the headlines:

Worsening unemployment. Millions of home foreclosures. Two-income households unable to support families. America’s workers are facing economic disasters so severe, even the national media is paying attention.

Connell’s post, Working Harder for Less Mocks the American Dream, reminds us that the Employee Free Choice Act is a way that we can correct the existing imbalance between workers and their employers which is one of the causes of the financial inequities dominating the headlines.

Although we’re inching closer to the end of the month, we will still be going strong next week, with posts from notables such as: Ilona Turner, Cyrus Mehri, Jen Nedeau, Richard Freeman, and Charlotte Fishman. (See About Our Bloggers to learn more about our rock-star lineup for next week.) Stay tuned every weekday in September to hear about what our experts will be talking about next — you can be certain it’s being ripped from the headlines!

Worsening unemployment. Millions of home foreclosures. Two-income households unable to support families. America’s workers are facing economic disasters so severe, even the national media is paying attention.

But the current crisis has long roots. America’s working families have been suffering through what is now a generation-long stagnation of wages and rising economic insecurity.

Steps must be taken immediately to shore up our flagging economy and provide much-needed assistance to working families. The AFL-CIO union movement supports an immediate moratorium on home foreclosures and the passage of a second fiscal stimulus package, including extension of unemployment insurance and federal aid to states and cities to prevent further cutbacks of vital public services.

Yet short-term measures will not be enough.

We must restore the balance between workers and their employers to ensure that workers can bargain fairly for an equitable share of our nation’s prosperity. Working families have been left behind over the past three decades, as virtually all income gains have gone to the wealthiest Americans.

Between the mid-1940s and mid-1970s, inflation-adjusted wages doubled for most U.S. workers, but between 1979 and 2007, they grew only 7 percent. Since 1979, productivity, or output per hour, has grown 70 percent—10 times as fast as real wages.

As a result, income and wealth are more unequally distributed in the United States than in any other developed country and are more unequal today than at any time since the 1920s. Even more alarming, American intergenerational economic mobility is falling and is already lower than in many European countries.

In a House subcommittee hearing on the economy last week, Rep. Jim McDermott (D-Wash.) summed it up this way:

In short, many Americans are working harder for less. Less income, less job security, less health and pension coverage, less time at home, and less opportunity. Left unchecked, this trend will strike at the very core of the American dream.

Economic Policy Institute (EPI) economist Jared Bernstein describes it this way:

The difficulties facing American workers predated the recession. There may be no more telling statistic…than the fact that the real wage for the median male was lower in 2007 than in 1973.

For the last few decades, [workers] have been losing employer-provided health coverage, or paying more out-of-pocket for premiums, health services, or medications. Their pensions are less secure, and have flipped from majority guaranteed benefit to guaranteed contribution, shifting the risk of an adequate retirement benefit from their employer to themselves and their family.

Correcting this long-term imbalance will require multiple strategies. We need policies that ensure a just global economy. We need a government that provides quality services, adequate public investment and fair taxes. And we need to ensure that when workers seek to join together to improve their wages and access to health care and retirement security, they can do so without employer harassment and intimidation.

In 2007, full-time union workers were paid $863 in median weekly income, compared with $663 for their nonunion counterparts. In March 2007, 78 percent of union workers in the private sector had jobs with employer-provided health insurance, compared with only 49 percent of nonunion workers. Union workers also are more likely to have retirement and short-term disability benefits.

America’s workers know union membership helped build the nation’s middle class. Some 60 million workers say they would join a union if they could. But the nation’s labor laws are broken, letting greedy employers harass and intimidate employees who seek to form a union. In the post-World War II years, our nation’s middle class mushroomed because workers from the factory lines to the office steno pool could join together and form unions, enabling them to negotiate for better wages, affordable health care and retirement security. Their purchasing power helped strengthen communities, and their solidarity pushed through such vital policies as job safety standards and Medicare that benefited all working Americans.

But some 92 percent of private-sector employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-union propaganda, and 75 percent hire outside consultants to run anti-union campaigns. When America’s workers are unable to win a voice at work, the American Dream becomes harder and harder to reach.

That’s why passage of the Employee Free Choice Act is a top priority for the union movement. The Employee Free Choice Act is a crucial step in moving our nation toward a just economy. It would level the workplace playing field by enabling employees to sign up for a union through a majority verification (card-check) process or labor board election, whichever they choose. It also would provide for mediation and arbitration if management and the union can’t work out a contract in 90 days. Because even after workers successfully form a union, in one-third of the instances, employers refuse to negotiate a contract.

Chris Williams, who teaches introductory physics at Pace University in the New York City area, has experienced this firsthand. As an “adjunct faculty” member, Williams couldn’t survive on his wages from Pace, where the average pay for teaching a 15-week, three-credit course is just $2,500. So while a tenured professor might earn $100,000 annually, an adjunct in the next classroom with the same qualifications would earn only $15,000 for the equivalent of a full-time workload.

Williams and other adjuncts joined the New York State United Teachers/AFT (NYSUT/AFT) in December 2003. But, once at the bargaining table, Pace dragged its heels, and today, the adjuncts still have no contract. Williams, a strong supporter of the Employee Free Choice Act, puts it this way:

Anything that can speed that process has to be good for workers. It’s clear that people need someone to represent them collectively. At the moment, the balance of power is almost completely with the employers. It’s long overdue that workers shift the power a little bit in our favor.

The health of the U.S. economy will turn on whether we let corporations get away with paying poverty wages to those responsible for teaching those who, ultimately, will lead our country. And so will the future of our nation.

(Show your support for the Employee Free Choice Act by signing a petition for its passage here. We plan to present 1 million signatures supporting the Employee Free Choice Act to the next Congress and president.)

About the Author: Tula Connell got her first union card while working her way through college as a banquet bartender for the Pfister Hotel in Milwaukee (represented by a hotel and restaurant local union—the names of the national unions were different then than they are now). With a background in journalism—covering bull roping in Texas and school boards in Virginia—Tula started working in the labor movement in 1991. Beginning as a writer for SEIU (and OPEIU member), Tula now blogs under the title of AFL-CIO managing editor.

In 1932, at the middle of the Great Depression, President Franklin Roosevelt swept into office with the promise of bold economic reforms. Although conservative critics of the day said that it wouldn’t work–the same ones that watched the economy collapse and did nothing–policies implemented in The New Deal stabilized the banking system, cut skyrocketing unemployment, paid farmers and workers fair wages, and created a foundation for a generation of economic growth.

A few years later, World War II strengthened America’s economy, resulting in twenty years of prosperity. The standard of living of the American worker rose steadily, with the majority of workers making more and more money each year. Plants were hiring, homes were being built, parents were sending their children off to college, and each generation expected to do better than their parents.

Sounds like fantasy-land, right?

No, that was our reality for two generations–until businesses became greedy. Big business came up with a plan to force workers to do with less so that they could have more. Their strategy included: force wage concessions from their workers, restrict government regulation, lower taxes on corporations and the rich and move as many high-wage jobs overseas as possible.

This has been the Republican mantra for the past 30 years. And although this message of corporate elitism seems to resonate with the general public, you have to ask yourself: Who are these policies benefiting? Are they helping big business – who are now counting their profits in the trillions? CEOs – whose compensation now averages 400 TIMES their average worker? Or are they benefiting everyday, average citizens who are now making less and less while corporate executive make more and more?

Our government, whose constitution was based on “Of the people, by the people and for the people” have corrupted their morals and sold out to big business. Our Founding Fathers shed blood to keep this country from being controlled by an elite group of the super-rich. They wanted to make sure that the common man was being heard, rights were being respected and interests represented in their government.

Who are the real patriots, now?

No one expects to go back to the 1950’s. What we do expect, however, is for this country to get back to our democratic principles of economic fairness and concern for the commonwealth. This country is only as good as its people. For America to become great again, we have to get back to the days of American ingenuity, research, innovation and a strong, vibrant, highly educated and highly trained workforce.

We need to invest in our nation’s future and rebuild our middle class; creating good paying jobs instead of shipping them all overseas. No more race to the bottom, we need to begin our race to the top! It’s time to Invest in America’s Future.

For more information, please visit www.nextnewdeal.org.

About the Author: Jeff Blum is the Executive Director of USAction & USAction Education Fund. Blum’s experience in grassroots organizing is extensive. He founded and directed Pennsylvania Citizen Action, where he helped lead successful campaigns to reform the state’s public utility law, create a toxics right-to-know law and expand access to generic drugs for senior citizens. He has also worked for the Peoples’ Coalition for Peace and Justice, Massachusetts Fair Share, People for the American Way (where he co-coordinated the campaign to establish AmeriCorps) and was Transportation Policy Director for Citizen Action. Blum also served as President of Maryland Citizen Action, founder and member of the Advisory Board of the Jewish Fund for Justice and as a member of the board of Citizens for Tax Justice. He is on the executive committee of America Votes and is an advisor to Progress Now. In Pennsylvania, he ran for state Senate in 1990 and was the Northeast Pennsylvania Regional Director of the Clinton/Gore Campaign in 1992. He has a BSN from Boston University and attended the University of Chicago and the University of Warwick, England. He and his wife, Ellen Cassedy, reside in Takoma Park, Maryland, and have two children.

In 2007, hundreds of gay-rights organizations from across the country signed a statement opposing the first gay-rights bill ever approved by a house of Congress. Why? Because the bill, the Employment Non-Discrimination Act (ENDA), prohibited job discrimination based on sexual orientation, but not discrimination based on gender identity/expression. After the House voted to approve ENDA as written, a House committee held a first-ever hearing on the issue of gender-identity/expression discrimination. It is likely that future ENDA proposals will include both sexual orientation and gender identity/expression as protected characteristics. When that happens, Congress will once again be following the lead that employers from coast to coast have already clearly established in affirming the equal employment rights of their transgender employees.

For purposes of this article, “transgender” is an umbrella term describing people who present to the world a gender identity different from the one they were assigned to at birth. The typical transgender person, in their “mind’s eye,” firmly and sincerely sees their gender in a way that does not match their anatomy; this divergence can appear at a very early age and is not usually thought of as a choice any more than is one’s sexual orientation. Transgender people may or may not attempt to change their bodies (“transition”) to align with this gender expression (those who do are often referred to as “transsexuals”). While most transgender people use the pronouns associated with the gender they present, some avoid the use of traditional, gendered pronouns altogether.

A person who comes out as transgender and changes their gender expression often puts him- or herself at significant risk for rejection, discrimination, harassment, or even violence. There are countless transgender people who, having transitioned later in life, have difficulty finding a fulfilling job even though they have advanced degrees and years of relevant experience – somehow, exchanging pants for a skirt magically negates an MBA and professional accomplishment.

The American workplace is slowly but inexorably recognizing that transgender employees have much to offer, and deserve fair and equitable treatment. Increasingly, labor advocates are leading the way by persuading American employers to amend existing non-discrimination and anti-harassment policies to extend their protection to transgender workers. According to the Human Rights Campaign, 153 of the Fortune 500 companies have taken such a step. Clearly, there is progress yet to be made – and labor advocates are likely to be successful.

Beyond basic non-discrimination/anti-harassment policies, forward-thinking employers are also contemplating issues related to employment benefits. Most fundamentally, does an employer’s health plan, assuming there is one, cover services related to gender transition? These usually fall into three basic categories: counseling, hormones, and surgery. The vast majority of plans that cover mental-health treatment don’t draw a line around gender-identity counseling and attempt to exclude it, nor should they. This is important, because counseling is often the initial step that opens the next doors in the transition process. Some employer plans contain gender-related provisions that specifically exclude surgery, while other go further and also exclude hormones as well. More and more, however, health plans (and related plans, such as short-term disability policies) are eliminating these restrictions as employers realize that covering gender-related care significantly benefits affected employees while adding relatively little to their insurance premium. In June 2008, the American Medical Association issued a statement calling exclusions of gender-related care a form of discrimination. Workplace advocates will continue to press for change in this area, which, in turn, could positively affect the future conversation about universal health care and its scope.

Additional complexities may arise regarding a transgender employee’s partner, and their access to dependent health benefits. For example, if a married male employee transitions to female and adopts a female name, but does not divorce, does the spouse remain the employee’s wife, and therefore the employee’s dependent? Or does the spouse, in effect, become a domestic partner? (Hint: pick door number one.) This matters, because if the dependent is seen as a spouse, the benefits are a tax-free fringe benefit. On the other hand, if the dependent is characterized as a domestic partner, the benefits incur tax liability for the employee and deductions by the employer. On one level, this distinction would be immaterial if not for the tax difference, and here, labor and employers are speaking out together in favor of federal legislation that would treat spousal and partner benefits equally for tax purposes.

Taking back Labor Day means, among other things, sharing Labor Day with transgender workers, and committing oneself to learning about the issues they face, educating others, and advocating for workplace fairness for all.

About the Author: Phil Duran is the Staff Attorney at OutFront Minnesota, the state’s leading advocacy, direct service, and public policy agency for gay, lesbian, bisexual, and transgender (GLBT) Minnesotans and their allies. His work at OutFront Minnesota focuses on legal information, referral, and education; state legislative research and analysis; state administrative agency and local government public policy; school-related issues; and direct representation in selected public-assistance and human rights matters. Additionally, Duran serves on the board of the Minnesota Lavender Bar Association, which raises GLBT issues within the legal profession in Minnesota. He also is a past member of the executive council of the Minnesota State Bar Association (MSBA), and served on the steering committee of the MSBA’s Diversity in the Legal Profession Task Force. He currently serves on the MSBA Diversity Committee, MSBA Task Force on the Rights of Unmarried Couples, and Minnesota Supreme Court’s Gender Fairness Implementation Committee. Phil is a graduate of the University of Minnesota Law School.

A large and growing number of employers across the United States require current and prospective employees to sign away core constitutional rights as a condition of getting a job. “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.

These provisions are common. Big Box retailers have them, restaurants have them, companies like Halliburton have them, and many more. Exact numbers are hard to come by, but it’s clear that today there are far more workers in America who have been required to sign mandatory arbitration clauses than there are workers who are members of unions. If one were trying to figure out whether the balance of power had shifted one way or the other between employers and employees, it would be hard to find a more obvious measure. A smaller and smaller percentage of American workers have been able to organize into groups to balance out the power of employers, and a larger and larger percentage of American workers have been forced to give up their legal rights and submit to corporate-chosen, largely non-transparent tribunals whose decisions are not meaningfully reviewed by any court. What a deal!

Arbitration tends to work pretty well in the collective bargaining process, where both sides–the union and the employer–are pretty sophisticated “repeat players,” and where neither party dominates who selects the arbitrators. Arbitration between employers and individual employees tends to be a very different situation, though. While individual employees rarely know how a given arbitrator has ruled in past cases (the arbitrations are generally confidential, and thus secret), the employers know who’s who. Arbitrators who rule for an employee risk being blackballed, and never working as an arbitrator again.

As a lawyer who represents employees and consumers in an adversary process, I’ve learned to be suspicious when the party who is adverse to–against–my client says it’s doing something for my client’s good. Thus, I’ve always taken it with a grain of salt when big corporations say things to the effect of “the reason we’re choosing to force our employers to submit to arbitration is because arbitration is fairer and better for the employees.” It reminds me of the line in Caddyshack where the Judge self-righteously tells the caddy “I’ve sent boys younger than you to the electric chair. I didn’t want to do it; I felt I owed it to them.”

Thus it should be no surprise that the leading academic study of thousands of publicly reported employment cases has found conclusively that non-unionized employees who have to take their disputes to pre-dispute binding arbitration win less frequently than if they could have taken their cases to court. The same study found that in those cases where employees do win in arbitration, they tend to win smaller awards than they would have been likely to win in court. (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). (Purchase the article.) There are some studies paid for by the Chamber of Commerce that purport to show how employees benefit from mandatory arbitration (some by carefully selecting the cases they study, some by blurring together data from arbitration in the collective bargaining setting and the non-unionized setting, and some by simply lying), but the Colvin piece is the real deal.

The U.S. Supreme Court has repeatedly said that a cornerstone of arbitration is that it’s voluntary, and consensual. The Court sees nothing involuntary about telling a long-time employee that they have to sign a binding arbitration clause or lose their job. “After all,” the argument runs, “they could always choose to work for someone else.” This argument is pretty empty for most employees. It’s only a short step from that to saying that someone who signs an arbitration clause at gunpoint has made a voluntary choice – “hey, they could have chosen to be shot.”

The legislative history of the Federal Arbitration Act makes very clear that this state of affairs is not what Congress intended in 1924. From talking to my clients, there are a large and growing number of people who feel that mandatory arbitration for employees is unfair, and that Congress needs to do something to correct the problem.

About the Author: F. Paul Bland, Jr. is a Staff Attorney for Public Justice (formerly Trial Lawyers for Public Justice), where he handles precedent-setting complex civil litigation. He has argued or co-argued and won more than twenty reported decisions from federal and state courts across the nation, including cases in four federal Circuit Courts of Appeal and six state high courts. He was named the “Vern Countryman” Award winner in 2006 by the National Consumer Law Center, which “honors the accomplishments of an exceptional consumer attorney who, through the practice of consumer law, has contributed significantly to the well being of vulnerable consumers.” He is a co-author of a book entitled Consumer Arbitration Agreements: Enforceability and Other Issues, and numerous articles. For three years, he was a co-chair of the National Association of Consumer Advocates. He also has won the San Francisco Trial Lawyer of the Year in 2002 and Maryland Trial Lawyer of the Year in 2001. Prior to coming to Public Justice, he was a plaintiffs’ class action and libel defense attorney in Baltimore. In the late 1980s, he was Chief Nominations Counsel to the U.S. Senate Judiciary Committee. He graduated from Harvard Law School in 1986, and Georgetown University in 1983.

It goes without saying that a healthy worker is a better, more productive worker. Sickness not only cuts into productivity by taking an employee out of the office, but chronic, untreated conditions can sap energy, happiness, and ability, resulting in a less productive environment for both the employee and the employer.

This is why in the 1940s, when businesses were competing for workers but couldn’t raise wages due to wartime wage controls, health insurance was introduced as a benefit. It was a win for both sides. Back then, health care was a non-profit enterprise, and everyone was charged the same premium no matter their age, sex, or pre-existing conditions, so costs were much lower. And employers realized that healthy workers were better for business. Today, this is how most Americans get their health care, as a benefit provided by their employer.

Of course, a lot has changed since then. Today, private insurers of the mostly for-profit type cherry-pick the customers they can make money on while dumping those who actually need to access the care they’ve paid the insurance companies to provide either on their own without insurance or on the rolls of state programs like Medicare and Medicaid. Combined with the rising cost of health care as technology transforms medicine, and you have a system that currently allows insurance companies to rake in sky-high profits while the rest of us are facing sky-high premiums we can’t afford to pay. And even if we can pay them, insurance companies work to deny our claims.

The solution is fairly straightforward. We’ve all got to share the risk. Insurance companies should be forced to take on all patients, and public plans should be forced to do the same. This way, risk is shared fairly.

These skyrocketing costs hit businesses hard. As Amber Sparks from UFCW explains, health care costs are now so high, they threaten companies and their employees:

Every time UFCW members go to the bargaining table to negotiate a new contract, health care is the five hundred pound gorilla in the room. It’s the same fight that we face in every contract negotiation these days, that battle for quality, affordable health care for all of our members.

As the costs of health care continue to march up an infinite incline, everyone suffers–employers are no exception. And employers respond by trying to cut their health care costs when negotiating a new contract, forcing us to spend all our energy and resources to preserve the quality of health care and keep workers’ costs down, too.

So, let’s review. Healthy workers are productive workers, so businesses want to offer health benefits to their employees to stay competitive. Yet, because private insurance has blocked fair risk sharing, skyrocketing costs are borne by businesses in the form of higher premiums to insure their workers, and these costs are either passed along to the worker in the form of rising health care contributions, or health benefits are scaled back or cut altogether. In short, our health care system is sapping our productivity and putting a huge burden on our businesses. It goes without saying that this isn’t good for the economy.

At it’s heart, health care is an economic issue, and that’s something that gets the attention of everyone in America, both progressives and conservatives.

So, workers, business owners, and labor activists need to be talking about health care. And to a large extent, most people get it. There is a reason every labor union has health care reform as one of their top political priorities. Now we’ve just got to get the rest of the country on board.

About the Author: Jason Rosenbaum is a writer and musician currently residing in Washington D.C. He is interested in the intersection of politics and culture, media consolidation issues, and making sense out of our foreign policy disasters. He currently works for Health Care for America Now and he is also the webmaster for The Seminal.

Got Plans for Sunday? On Sunday, September 14th, people will gather at over 300 house parties around the country to watch the new film Diagnosis: Now!, a new documentary by Robert Greenwald of Brave New Films, which tells the saga of our failing health care system. If you attend a house party in your area, you can be part of this historical effort to win quality, affordable health care for all in 2009.

Want to check out the trailer for the film? Click here to watch the trailer and find a house party in your area!

If you don’t find a house party in your area, or would rather participate online, Firedoglake.com will be hosting a virtual house party on September 14th at 7pm EST, with special guests Rep. Pete Stark of CA, Jim Gilliam, whose story is featured in the film, and Roger Hickey of Campaign for America’s Future.

Click here to sign up for the virtual house party!

Across America on September 14th, not only will Americans watch this new documentary, but they will mobilize together for change. Be part of this historical effort to win quality, affordable health care for all in 2009!

This post cross-posted at the NOW! blog.

Mr. and Mrs. Ortega* worked and lived in the D.C. home of Ms. Glasson* for the last 7 years. The Ortegas each worked an average of 60 hours a week, cooking, cleaning, and driving Ms. Glasson around town. Last fall, they were fired without notice, given two weeks severance and immediately evicted from Ms. Glasson’s home. Ms. Glasson was gracious enough to have a U-Haul waiting for them. The Ortegas were never paid overtime.

I wish I could say that this story was uncommon or shocking, but the truth is that I hear some version of this story several times a month. To make matters worse, protecting employees like the Ortegas is difficult because domestic workers are routinely exempt or excluded from many basic workplace laws. For example, the Ortegas, as live-in domestic workers, were not entitled to overtime pay (time and a half their regular rate) for the extra hours they worked over 40 each week, unlike many low-income workers under the Fair Labor Standards Act. Instead, they were only entitled to straight time. Moreover, employers like Ms. Glasson can further underpay domestic workers by deducting things like a portion of the fair market rental value of the housing provided. Try to imagine what the fair market rental value of a room in a $1 million home might be.

Domestic workers are also not protected by the National Labor Relations Act and, thus, have no legally protected right to organize. They are excluded from the protections of the Occupational Safety and Health Act. And the Civil Rights Act (commonly referred to as Title VII), which provides protection from unlawful discrimination, and the Family Medical Leave Act, which provides limited time off to care for oneself or an immediate family member in certain instances, generally do not apply to domestic workers because small employers are exempted from these laws.

Given the lack of legal protections for domestic workers, it is not surprising that the vast majority of these workers are immigrant workers who are paid close to or less than the minimum wage. The Ortegas were lucky. They were paid $10 an hour. A survey conducted by the Montgomery County Council in Maryland found that half of its survey respondents were paid less than Maryland’s minimum wage and 75% reported not receiving overtime pay. And a study by a group in New York City, Domestic Workers United, reported that over 99% of domestic workers in New York were foreign born.

Montgomery County Maryland and New York City have passed “nanny bills,” which take a first step in protecting these workers. The Montgomery County law requires an employer to state the terms and conditions of employment in a written contract and also mandates certain living conditions for live-in domestic workers. The New York City law requires employment agencies to inform domestic workers about their workplace rights and requires employers to sign a statement saying they understand the rules on minimum wage, overtime and Social Security.

While small, these gains are important because most of these workers labor in private homes, where they have little to no access to workplace rights information. For obvious reasons, private home owners are not required to hang those laminated posters in their dining rooms, but there is nothing from stopping the government from requiring that the information be handed to the worker.

Last year, a Maryland jury ordered Redskins owner Daniel Snyder and his wife to pay their nanny over $40,000 in unpaid overtime. There is simply no reason why individuals who can afford to hire domestic workers should not be held to a high standard in providing them with the basic wages and employment standards the vast majority of American workers enjoy.

* The names have been changed.

About the Author: Melvina Ford is the Executive Director of the EJC (DC Employment Justice Center). Prior to joining the EJC as Director of Legal Services in 2005, Melvina was a senior associate at the law firm of Tydings & Rosenberg LLP, in Baltimore, Maryland, where she practiced in the firm’s Litigation Department with an emphasis on labor and employment law. Melvina, however, is not a newcomer to nonprofit advocacy. Before re-entering private practice, Melvina served as the Legal Projects Manager for the Women’s Law Center of Maryland, where she coordinated the Center’s litigation efforts, represented the organization before the Maryland General Assembly and wrote and updated Center publications, such as Sex Discrimination in Employment, a guide to federal and Maryland employment laws for women. Melvina graduated from the Georgetown University Law Center, and she is a member of the Maryland, Virginia, and District of Columbia bars.

For this week’s installment of our Take Back Labor Day project, we had ten new posts representing the incredible quality and diversity that exists among those who think and write about workplace issues. With a wide variety of topics, including domestic workers, CEO pay, and workplace flexibility, and the representation of powerhouse organizations such as the Center for American Progress, the new Health Care for America Now coalition, and Women Employed, Week 2 was another stellar week.

Kicking off the week, on Monday, September 8, were Dr. David Madland and Karla Walter of the Center for American Progress (CAP) and Mark Harbeke of Winning Workplaces.

Madland and Walter, of the Center for American Progress’s American Worker Project, point out the abysmal record of the current administration when it comes to having the Department of Labor simply do its job of protecting workers.  What’s the solution (besides voting, of course)?  Passing the Employee Free Choice Act, which the next administration should have the opportunity to do.

Winning Workplaces helps small and midsize organizations create great workplaces, and often it’s Mark Harbeke bringing some of the very best workplace practices and hottest workplace trends to our attention.  This post was no exception, as Mark found three different studies that all make it crystal clear that employers have to engage their employees, if they want them to be productive and satisfied with their work.  If you’re too busy to read the handwriting on the wall, just read Mark on a regular basis at the Winning Workplace blog.

Continuing on Tuesday, September 8, were workplace columnist Bob Rosner and Anne Ladky of Women Employed, respectively tackling the hot topics of CEO pay and paid sick leave.

In a bit of workplace Freakonomics, who figured out that CEO performance has an inverse relationship with their house size? No, it wasn’t Bob Rosner, but he tells us about the study that figured out that the larger the CEO’s house, the more likely that shareholders will pay for the CEO’s poor performance. Pay close attention to Bob — you’ll be seeing a lot more of him soon around these parts!

Anne Ladky of Women Employed provides us a great way to track our progress between this Labor Day and next:  have we passed a federal paid sick leave bill?  If not, we’re not done ensuring fairness in the workplace, while a benefit considered standard by most professionals—paid sick time—is unavailable to millions of lower-paid workers, including 22 million women.

Wednesday, September 10 featured two titans among lawyers who represent workers:  Paul Tobias and Ellen Simon.

Paul Tobias, who can count founding Workplace Fairness and the National Employment Lawyers Association among his myriad of career accomplishments, uses Labor Day to identify a number of necessary changes we need to our employment laws for workers to get a fair shake.  As he remarks, we all hope that the presidential candidates will take note of these needed changes and actually fix them during the next administration.

Ellen Simon, one of the foremost employment and civil rights lawyers in the United States, tells us about a recent surprisingly positive Supreme Court decision (Sprint v. Mendelsohn), which gives us a slight bit of hope that the Court — not especially known for its friendliness to workers — will actually enforce the long-standing rules of evidence, even when to do so might benefit workers.

Thursday, September 11, was a somber day of remembrance for many of us.  Blogger Jason Gooljar looked back to the very origins of the Labor Day holiday, while Chai Feldblum and Katie Corrigan looked to the not-too-distant future of the flexible workplace.

Jason Gooljar, blogger Working Families Party Man, points out what even the most worker-friendly among us might not know about Labor Day: that it was proposed as a September holiday to prevent the celebration of what was considered a much more radical observance:  May Day.  While we may now observe a watered-down holiday, we don’t have to have a watered-down global labor movement, and Jason tells us why that’s important.

Chai Feldblum and Katie Corrigan, who co-direct the Workplace Flexibility 2010 campaign at Georgetown Law, talk about how many workers have extreme difficulty juggling the competing demands of work, family, and community involvement.  Workplace flexibility (including telecommuting, phased retirement, and flexible work arrangements) is a solution which can ultimately bring about more effective business, a stronger workforce, and healthier families — if enough businesses choose to embrace flexibility principles and practices.

Week 2 wrapped up on Friday, September 12, but we didn’t slack off at the end of the week, with Melvina Ford and Jason Rosenbaum tackling two urgent workplace problems:  the lack of sufficient legal protections for domestic workers, and the lack of adequate health care for many, if not most, American workers.

Melvina Ford, Executive Director of the DC Employment Justice Center, identifies a problem hardly confined to the DC metro area:  the exploitation of domestic workers who cook, clean, and take care of children and seniors at home.  She correctly notes that many current laws weren’t written with domestic workers in mind, and either exempt them entirely or do not adequately protect them.  Some recently enacted laws show promise in educating oft-exploited workers about their rights, but we need to do even more to ensure that domestic workers are fairly compensated for their often back-breaking work.

Jason Rosenbaum, writing for the recently formed Health Care for America Now! coalition, makes a relatively obvious but incredibly overlooked connection:  a healthy worker is a better, more productive worker, and sick workers who lack adequate insurance sap productivity.  Yet both businesses and employees face skyrocketing health care costs as a result of insurance company intervention.  Yes, health care is an economic issue — and a vitally important one that we are forced to address in the days ahead.

Whew:  health care, CEO pay, domestic pay, the Supreme Court, the Department of Labor:  you name it, we covered it in week 2, if it’s important in today’s workplace.  And next week continues the fine tradition we’ve established this month:  with at least five guest bloggers continuing the quality posts you’ve seen all month.  Stay tuned!

Many people don’t think about Labor Day. They see it as another day off from work. It’s a day when the retail corporations offer incentives to come out and consume. Yet, even those who have an inkling of what Labor Day is and what it’s about don’t realize that this day masks the real defiance and spirit of the workers’ movement.

The Knights of Labor were the driving force behind making the Labor Day of September officially recognized. They were aided in this effort by President Grover Cleveland who sought to commemorate this day instead of another more historic day in May 4^th in which many in the international labor movement sought to recognize in the May Day of May 1^st.

It was the events that occurred in May 1886 that eventually brought about the eight-hour work day. Starting on May 1^st of that year there were thousands of rallies organized in support of eight-hour workdays. The one rally that forever ingrained May Day in our collective memories was the one which occurred on May 4^th in Haymarket Square in Chicago.

If there is one thing that is true about labor versus capital, it is the reality that nothing is ever won by labor without a fight. Working people often face violence, repression and hostility when trying to organize and wring concessions from corporations and sometimes government. It is as true then, in the late nineteenth century, as it is now in the early twenty first century. If we want to take back Labor Day on whatever day we celebrate it–we must show people that this truth of the struggle is far from being over.

It was then with this ever present reality that striking and locked out McCormick Harvesting Machine Corporation plant workers in Chicago—which were attacked by Pinkerton thugs and then cut down by the police in gunfire on May 3^rd—had had enough and organized a protest to take place at Haymarket Square.

The rally that occurred in Haymarket Square that day was meant to be peaceful. Unfortunately it did not end that way. Someone threw a pipe bomb at the police which resulted in anarchy as gunshots filled the air. Many police officers and bystanders were injured mostly by friendly fire. In the end seven police men and four workers were killed.

Afterward it is the trial that ensued and the injustice that the rally’s organizers faced is what gave the Haymarket Affair its notoriety. Eight people were charged and seven were given death sentences, including August Spies, a leader and labor activist.

It is my opinion that this trial was also used to try and discredit the workers and their cause. Thankfully this did not happen and we can thank organized labor for the eight-hour workday (and five-day workweek) today.

Yes, we enjoy benefits that the labor movement of the past worked to get us, but there are new issues and needs that we must address and fight for. We need to start working to organize sectors of the new economy like IT and the service-based jobs. This work has already begun and hopefully it will prove successful. We also need to look to the new green-collar jobs that will come into being. We also shouldn’t give up entirely on manufacturing. As the cost of oil rises we will probably see a return of some manufacturing jobs to America. We have to also look to organize plants that are opened in the US by foreign corporations. We have to focus on affordable college education and ensuring that the workforce is educated for any new sectors of the economy that may become a reality. Last but not least, universal healthcare and affordable housing are issues that deeply concern working America and must continue to be focused on until working families get what they need.

I think that another thing we must also do is to start thinking of a global labor movement. Corporations have successfully globalized, but labor is still at the very beginning of doing this. If manufacturing jobs are going to leave the developed countries that doesn’t mean that workers in other countries should be allowed to be taken advantage of. We can work to organize these workers as well. Every few months I read of tens of thousands of workers in developing countries going out on strike. We need to work on forming global labor unions. To take back Labor Day and make it truly a holiday to celebrate for not only America’s workers but for workers everywhere, there are many things we must do. Probably the one thing we can do as a society is also recognize that we can’t continue a race to the bottom. We can’t put the bottom line above people. Profit maximization and the lowest possible prices for the consumer isn’t everything. If we have to pay a little more as consumers and earn a little less as corporations then maybe it’s not a bad thing if it ensures more people have jobs and a secure life.

About the Author: Jason Gooljar is a progressive liberal blogger currently employed in the progressive movement and living in the DC metro area. A native New Yorker, Jason first got involved with political and civic issues in 1998 during his senior year in high school. At the time he was an intern and learned about the workings of local government in Westchester County, NY. Since then, he has worked as a paid staffer on two state senate campaigns and one gubernatorial campaign in NY. He was also a member of the first class to be trained in online organizing by the DC-based non-profit the New Organizing Institute in the winter of 2006. Jason holds an Associates degree in Multimedia Development and Management. His future goals include going back to school to study political science or a public policy-related area. While Jason always had an interest in politics, it was witnessing the 2005 TWU Local 100 transit strike in NYC which really galvanized him to focus on labor issues. In addition to labor issues Jason’s other areas of focus when he’s blogging is corporate abuse and consumerism. You can find him online at www.jasongooljar.com, where this post is cross-posted.