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U.S. Supreme Court To Decide Whether Class Action Defendants Can Bribe Their Way Out Of Legal Trouble

Thursday, September 3rd, 2015

TLeslie Bruecknerhe U.S. Supreme Court is poised to decide an issue of huge importance to everyone who cares about access to justice. The question, in Campbell-Ewald v. Gomez, is whether corporate defendants in class actions are entitled to bribe class representatives to abandon the rest of the potential class members.

Yes, you read that right. According to the corporation who was sued, it should be allowed to cancel out a class action against it simply by offering to settle the named plaintiff’s individual claims. Under the defendant’s view of the law, corporations accused of ripping off millions of people could avoid accountability by repeatedly picking off the few named plaintiffs who are willing to step forward. Campbell-Ewald has even gone so far as to argue that class representatives are bound by such offers, accepted or not, even if it effectively denies all other class members the ability to obtain any relief at all.

The craziest part about the theory they’ve put forth is that it turns the whole notion of adequacy of representation 180 degrees. As we explained in an amici brief we just filed with the Court (along with the AARP), one of the most basic rules of class actions is that class representatives are supposed to represent the others impacted by the wrongdoing. Not only is this required by Rule 23 (the federal class action rule), it’s also required by the U.S. Constitution (due process, anyone?). This means not just that the class representatives are supposed to be competent, they are also supposed to be loyal to the rest of the class members. And that means the class representatives are not supposed to file potential class actions just to make money for themselves, they are supposed to be standing up for everyone in the class.

But if Campbell-Ewald’s lawyers are to be believed, the basic ethical and constitutional premises of class actions were just flipped. They say that corporate defendants in class actions have the right to bribe class representatives to abandon everyone else. And in their view, even if a class representative wants to do the right thing and reject an individual payday so they can stand for the entire class, Rule 68 strips away that possibility, and the court must dismiss the whole case for lack of subject matter jurisdiction.

If the Supreme Court agrees with Campbell-Ewald, it could spell disaster for the ability of injury victims to obtain any compensation whatsoever via class action suits. Class actions make it economically possible for injured consumers, civil rights plaintiffs, and low-wage workers to pursue claims for relatively small damage amounts for wrongs that would otherwise go unremedied. A Supreme Court ruling that would allow defendants to shut down class actions simply by “picking off” named plaintiffs could wipe countless cases – and countless consumers and others who would benefit from those cases – off the litigation map.

Hopefully, the Court will see this tactic for what it is: a form of bribery that turns the very idea of class representation on its head.

This blog was originally posted on Public Justice on September 02, 2015. Reprinted with permission.

About the Author: The author’s name is Leslie Brueckner.  In 2011, Leslie became the director of Public Justice’s new Food Safety & Health Project. In addition to her litigation work, Ms. Brueckner has taught appellate advocacy at American University Law School and Georgetown University School of Law. She is a senior attorney at Public Justice.

Changes to Overtime Rules Getting Closer: Act Now!

Tuesday, September 1st, 2015

erik idoniRecently, the Department of Labor proposed a rule to bring overtime up-to-date. If the proposal goes into effect, an additional 5 million white-collar workers are expected to benefit from overtime. The Department of Labor wants to hear your voice on this proposal and until this Friday, September 4, 2015, they are taking comments on the proposed rule.

Whether a worker receives overtime or not is determined by a three-part test. Under this test, the employee does not receive overtime when:

  1. they are paid a fixed salary;
  2. their salary is at least $455 a week (which equates to $23,660 a year); and
  3. their job primarily involves executive, administrative, or professional duties.

Furthermore, there are exemptions for highly compensated employees who regularly perform executive, administrative, or professional duties and make at least $100,000 a year, including at least $455 a week via salary or fees.

The Department of Labor’s proposal would focus on the salary aspect of the three-part test. Instead of a stagnant number, the salary standard would be set at the 40th percentile of weekly earnings for full-time salaried workers, which is expected to be about $970 a week, $50,440 a year, in 2016. For highly compensated employees, the standard would be set at the 90th percentile, expected to be $122,148 annually.

This proposal would be a drastic change, but a necessary one. The salary threshold has only been updated twice in the last 40 years. As a result, only 8% of full-time salaried workers fall under the threshold. This is a stark contrast from 1975 when 62% of full-time salaried workers fell below the threshold. Under the Department of Labor’s proposal, of the five million new workers expected to qualify for overtime, 53% of them would have college degrees and 56% would be women.

These days, the few that do fall under the salary threshold for overtime likely fall under another threshold, the poverty line. The poverty line for a family of four is $24,008 a year, or $348 more than the overtime threshold. This means that, a worker making $460 a week could work 50 hours every week, receive no overtime pay, and be below the poverty line.

The Department of Labor’s proposal can still change and they want to hear from you on a wide variety of issues. The agency wants your opinion on the proposal to use the 40th and 90th percentiles, or switch to using changes in inflation to determine the salary threshold. They want to know whether the three-part test is working. First and foremost, they want to know what overtime pay would mean to you and your family.

Make your voice heard and make it clear that this is an important issue that has been ignored for far too long. Share your ideas on the proposal here and your story here. You only have until Friday, but please, don’t make the comments too long they would have to work overtime to read them all, and chances are they don’t get paid for that.

 

About the Author: The author’s name is Erik Idoni. Erik Idoni is a student at the George Mason University School of Law and an intern at Workplace Fairness.

How Much Money Does a Family Need to Get by Where You Live?

Tuesday, September 1st, 2015

Laura ClawsonWe talk a fair amount about what people earn. The federal minimum wage is $7.25 an hour, or $15,080 for a year of full-time work. Workers are organizing to demand $15 an hour, or $31,200 a year. The median household income is around $52,000. To be in the top one percent of households, you need $385,195 in income. But we need to put those numbers in the context of what people need.

That minimum wage? It’s not enough to pay rent on an average one- or two-bedroom apartment in any state. But the median household income falls short of living costs in many places, as a new report from the Economic Policy Institute shows.

  • The basic family budget for a two-parent, two-child family ranges from $49,114 (Morristown, Tenn.) to $106,493 (Washington, D.C.). In the median family budget area for this family type, Des Moines, Iowa, a two-parent, two-child family needs $63,741 to secure an adequate but modest living standard. This is well above the 2014 poverty threshold of $24,008 for this family type.
  • For a two-parent, two-child household, housing ranges from 10.2 percent of a family’s budget in Binghamton, N.Y., to 25.6 percent in San Francisco. Housing for this family type is most expensive in San Francisco ($1,956 per month), and is least expensive in Franklin, Poinsett, and Grant counties in Arkansas ($561 per month).
  • Across regions and family types, child care costs account for the greatest variability in family budgets. Monthly child care costs for a two-parent, one-child household range from $344 in rural South Carolina to $1,472 in Washington, D.C. In the latter, monthly child care costs for a two-parent, three-child household are $2,784—nearly 90 percent higher than for a two-parent, one-child household.
  • Among two-parent, two-child families, child care costs exceed rent in 500 out of 618 family budget areas.

Household income is often higher in the more expensive places to live, of course. In the Washington, DC, metro area in 2013, it was $90,149. But that means that more than half of families fell short of what was needed to support a basic but stable lifestyle; the EPI calculated its budgets using rents at the 40th percentile and the second-least-expensive food plan the USDA outlines, to give a sense of what type of budget we’re talking about. What that means is that many, many families in this country are cutting basic corners because their incomes don’t keep up with the cost of living—and no wonder, since the cost of living keeps rising while incomes stagnate.

Check out the EPI’s family budget calculator to see basic living costs for families in your area.

This blog was originally posted on Daily Kos on August 29, 2015. Reprinted with permission.

About the Author: The author’s name is Laura Clawson. Laura has been a Daily Kos contributing editor since December 2006  and Labor editor since 2011.

Twitter Regrets Throwing Frat-Themed Employee Party

Tuesday, July 28th, 2015

Twitter threw a summer soiree to rival all soirees Tuesday. The microblogging site hosted a college-frat-party themed happy hour for its San Francisco employees complete with beer pong, a keg, those iconic red Solo cups synonymous with underage drinking, and a proud banner that read “TW?TT?R ?R?T H?VS?.”

News of the party spread like wildfire after a female employee posted a picture to a women in technology group on Facebook. Fraternities and greek culture have become synonymous with sexism in the tech industry, which often referred to as the brogrammer culture that caters to white males and often excludes — or is hostile toward — women and people of color.

View image on Twitter

Twitter has since apologized for the party as spokesman Jim Prosser told Fusion, “This social event organized by one team was in poor taste at best, and not reflective of the culture we are building here at Twitter. We’ve had discussions internally with the organizing team, and they recognize that this theme was ill-chosen.”

The “ill-chosen” party theme marks the latest in a series of missteps regarding the company’s handling of gender-based issues — most notably a gender discrimination lawsuit. Former software engineer Tina Huang claimed Twitter’s promotion process was biased toward advancing male employees over female employees up for the same job. Women make up less than a third of all Twitter employees — only 10 percent in tech jobs — and hold 21 percent of management positions, according to the company’s 2014 diversity report.

Twitter has been at the center of the industry’s perceived ineptitude when dealing with issues of diversity internally and when it comes to implementing policies for issues that predominantly affect marginalized communities. The company has made strides to improve its policies and image by making it easier for users to promote rape and death threats, and other instances of online harassment.

But the company continues to struggle with internal diversity efforts, namely its hunt for a new CEO. After Dick Costolo stepped down in June, Twitter co-founder Jack Dorsey took over as interim CEO while the company searches for a permanent, full-time replacement. (Dorsey is also the CEO for Square, an online payment system.)

So far, the preliminary candidate pool doesn’t reflect users call for more diversity. The early list of hopefuls don’t include any women or people of color. Twitter has only one female board executive, Marjorie Scardino, who was hired in 2013.

This blog was originally posted on Think Progress on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is Lauren C. Williams. Lauren C. Williams is the tech reporter for ThinkProgress with an affinity for consumer privacy, cybersecurity, tech culture and the intersection of civil liberties and tech policy. Before joining the ThinkProgress team, she wrote about health care policy and regulation for B2B publications, and had a brief stint at The Seattle Times. Lauren is a native Washingtonian and holds a master’s in journalism from the University of Maryland and a bachelor’s of science in dietetics from the University of Delaware.

Vocational Education Should Be For Everyone

Wednesday, July 22nd, 2015

Casey_200x200The term “vocational education,” which means preparing students for a certain trade, such as auto repair or beauty school, initially began in 1917 to reduce unemployment and improve wages, and in the 1940s and 1950s, vocational education expanded to other subjects beyond agriculture and industrial work such as science, math and foreign language education.

At some point, however, vocational education earned a reputation as something reserved for “those students,” experts say. From 1982 to 1994, there was a decline in enrollment in vocational education for most groups of students, but the portion of black, non-Hispanic students and Asian/Pacific Islander students stayed about the same while the percentage of students with disabilities increased, according to the National Center for Education Statistics (NCES).

Since 1990, students enrolled in vocational education has declined from an average 4.2 credits to 3.6 credits in 2009, according to NCES data analyzed by the National Education Association. Meanwhile, enrollment in academic credits increased from 23.5 to 26.9 during the same period.

Hillary Clinton said it is necessary to change attitudes about how we see vocational education and that it is critical to support and develop the nation’s community colleges “and get back to really respecting vocational and technical work.” She also supported the idea of apprentice work, saying at a campaign event in South Carolina last month that there should be a tax credit for businesses that hire and train apprentices.

Vocational education is changing, but many still see it as something only low-income, mostly minority students are pushed into and an option that upper class students and white students wouldn’t be encouraged to take. As academics and authors on national education trends point out, when our society devalues anything that isn’t academic prep work and a pathway to a four-year university, it’s easy to see why people are suspicious of vocational education, which encourages students to gain practical, hands-on skills in a certain industry, versus learning about economic theories in a lecture format.

In many cases, there is good reason for that suspicion. Anthony Greene, assistant professor with the African American studies program at the College of Charleston found that racial-ethnic minority students are disproportionately placed into lower-level academic courses, and subsequently enroll in vocational courses. Even within vocational education, students of color, especially women of color, aren’t tracked into professions that earn as much money over time. Greene wrote a 2014 paper on racial trends in vocational education in the International Journal of Educational Studies.

“Think for a second on the ‘workers’ at colleges and universities across the country. In the vast majority of cases, women, particularly black and Latino, often are regulated to cook and cleaning staffs. Latino men are often regulated to grounds keeping, but white males tend to be in maintenance and heating and lighting and electrical,” Greene said. “Each one of these jobs come with a level of prestige accompanied by a variation of pay. I argue that these pathways in occupations begin in high school vocational programs.”

Jose Vilson, a middle school math educator in the Inwood/Washington Heights neighborhood and author of This Is Not A Test: A New Narrative on Race, Class, and the Future of Education, said he says similar patterns at his school.

“Usually the language is kind of coded like, ‘This kid isn’t really into academics,’ or ‘This kid doesn’t come to class a lot,’ or ‘Based on the way they volunteer, they seem to be very good with their hands,” Vilson said. “Who are we to say they aren’t good with academics? Maybe we haven’t given them the proper environment for them to succeed in an academic setting, and this isn’t just from white teachers. This comes from people who look like the kid.”

Vilson doesn’t oppose vocational training but would rather see more of an effort from educators to make sure they are encouraging students to follow their actual interests and make an informed choice on whether or not they want to take vocational education classes. Part of the problem, Vilson said, is that the professions we associate with vocational training, such as becoming an electrician or a plumber, are often devalued even though they make good money and are perfectly legitimate career options.

“I find there’s another element there too, in terms of what do we see as a professional job. You look at a plumber, for example, and they could be making money hand over fist, and people can denigrate the plumbing profession and make it into something that isn’t a profession in of itself. There just needs to be a certain set of skills that every American is entitled to,” Vilson said. “For the last 13 years, there has been a decline in having those types of skills in academic courses, like home economics and workshop. My focus is always going to be on students and allowing them to make a choice.”

Vocational training may typically lead people to envision beauty school and carpentry, but vocational programs are expanding to new subjects, and some programs, such as Denver Public Schools’ vocational education program, are much more modern. The district offers an engineering and energy pathway, biomedicine, engineering, and advanced manufacturing, said Laurent Trent, manager of strategic partnerships at Denver Public Schools at the school’s office of college and career readiness.

“Often, a student doesn’t realize they’re in a career and technical education class until they get in it and really like it and say, ‘Oh I’m going to take the next one.’ They don’t hold a lot of the stigma that their parents and other adults hold,” Trent said. “So, business partners and parents — in the best-case scenario, they don’t know — and in the worst, they do know and they associate it with vocational education of decades past, so we definitely wanted to signal that this is a new day.”

They’re also trying to reenvision some of the more traditional kinds of vocations, such as automotive work, to be more compatible with the modern workforce, Trent said.

“We’re thinking about that now, to take more old school programs and reimagine them into career pathways, so we’re thinking about how you take traditional construction and woodworking classes and change the structure so it aligns with a high-demand advanced manufacturing pathway. Certainly many of our investments are in other areas. Auto – for instance – does auto have a place in the engineering pathway? We’re still thinking through how that works,” she said.

To decide which programs reflect relevant growing industries, the school partners with the Office of Economic Development in Denver, to analyze data on which fields are developing rapidly. The school also received a “Youth CareerConnect” grant. Students are also doing job shadows and getting connected with mentors in their fields. Trent said the district is currently working with three universities on a preferential admissions agreement for students in the vocational education classes.

Philip Zelikow, co-author of America’s Moment: Creating Opportunity in the Connected Age, and White Burkett Miller Professor of History at the University of Virginia, said the best way to provide vocational education would be to integrate elements of vocational education into the rest of the academic curricula. He pointed to Camden County High School where you learn the theory in order to use the skills, such as learning how to investigate a crime scene and using instruments and writing up reports for actual hands-on skills.

“You unite theory and practice, which is actually a very interesting way to learn the theory and makes it much more accessible.” Zelikow said.

He argued that a child choosing one vocation early on in their high school career may be too rigid, since students often change their minds sometime in high school, if not college.

“They say, ‘We don’t expect these kids to get these academic subjects,’ and in effect, they’re tracking them since they’re 15. They’ve ended up spending their whole high school career to prepare to be an aircraft repairperson, but that may be too rigid and confining,” Zelikow said. “One of the advantages of the mainstreaming approach is that it builds up soft skills, basic literacy and numeracy, and the context in which you build up that literacy and numeracy isn’t all that important.”

When you separate vocational education from academic work, you emphasize class differences, Zelikow said, instead of helping all students build skills they will need in the future.

“You reinforce the problem of two Americas with this kind of educational system, which is duplicating the kind of class educational system you would have encountered in America in the 1850s, where a small number of students of a particular class would go to certain schools and everyone else was assumed to be good for nothing but farmwork,” Zelikow said. “In the period between 1880 and 1940, there was the universal high school movement and radical changes in college. These changes now look anachronistic, but they were a major overhaul of the system. It’s time for another overhaul.”

This blog was originally posted on Think Progress on July 21, 2015. Reprinted with permission.

About the Author: The author’s name is Casey Quinlan. Casey Quinlan is an education reporter for ThinkProgress. Previously, she was an editor for U.S. News and World Report. She has covered investing, education crime, LGBT issues, and politics for publications such as the NY Daily News, The Crime Report, The Legislative Gazette, Autostraddle, City Limits, The Atlantic and The Toast.

What Is the Federal Reserve Doing?

Friday, June 26th, 2015

William Spriggs

Last week, the U.S. Bureau of Labor Statistics issued its numbers for inflation and for real wage movements. The numbers reflected the weak numbers of the first quarter for economic growth: Zero inflation and zero real wage growth in the past three months. The economy is showing signs that it is fragile. It can be spoofed by international developments that raise the value of the dollar and slow U.S. export growth, or by bad weather—events, the Federal Reserve cannot control or easily predict.

So what is the Federal Reserve doing? At its June Open Market Committee Meeting, where Federal Reserve policy is set, the Fed stayed put on interest rates.  Yet, it gave indications that it was considering giving in to the stampede for the Fed to act sometime this year to raise interest rates in a deliberate move to slow the economy. A policy to slow the economy is based on beliefs, not on the hard data before us on wages or inflation. This is regrettable.

The deeper reality is that the Fed took unprecedented moves to build up huge reserves of U.S. Treasuries. What is really going on is more that the speculators on Wall Street are nervous. They are afraid that somehow, from some unknown source, inflationary pressures will rapidly appear and the Fed will quickly unwind its position with, for some of them, disastrous consequences on bets they have placed on bond prices. They would prefer the certainty of having the Fed start to unwind its position now, slowly divesting itself of its bond reserves and easing the economy to higher interest rates. This has nothing to do with the economy, and everything to do with Wall Street speculation. Unfortunately, the press plays sycophant to these speculators, who are constantly quoted as giving “economic” advice when they state with certainty the need for the Fed to raise interest rates.

Sources of global instability abound. The discussions over the Greek debt, the Eurozone bankers and the International Monetary Fund are far from a workable solution. In the meantime, the Swiss Franc is rising uncontrollably in response to that uncertainty. Iraq, Syria, Yemen and the ongoing conflict with ISL make the Mideast equally unpredictable. And, if snows were the issue in the first quarter, the California drought, the Texas floods and Midwest tornadoes so far this quarter should not make anyone confident that the current hurricane season is going to be a sleeper. Further incidents in Charleston and now Charlotte with violent attacks on African American churches and the constant stream of discontent with the ongoing and unresolved issue of police misconduct make the domestic situation equally volatile.  With so many uncontrollable and unpredictable risk factors that could slow the economy, the fears of Wall Street speculators should and must take a back seat.

These risks are not all unrelated. A more robust U.S. economy will help the world economy and help reduce some risks associated with weak economic performance; especially in the Eurozone. And a more robust U.S. economy will hopefully speed job growth to reduce the economic tensions that overlay the raw social tensions domestically.

The Fed must expand its view of measures of full-employment. The Wall Street gamblers base their assumptions on full employment from a time gone by. For instance, economists today still persist in viewing the high African American unemployment rate as a “structural” issue, since African American workers are assumed to be so low-skilled they cannot find jobs in a modern economy. So, they ignore the warning signs that job growth is frail when the African American unemployment stalls, as it has, at around 10%.

In May, the unemployment rate for adult African American workers (those older than 25) with associate degrees was 5.6%, which was higher or about the same as the unemployment rate for white, Asian and Hispanic high school graduates. Those numbers are inconsistent with full employment. They indicate a market where employers are very free to pick and choose which workers they want. A faster growing economy will force employers to be less choosy.

The slow economy cascaded higher educated workers down into jobs that require less education. If the economy does not speed up, that misallocation of productive capacity could become permanent, as employers may continue to seek only college graduates to serve coffee. This costs us in loss productivity growth.  It is another sign of a labor market that is not at full employment.

Locking in high African American unemployment and college degree requirements for entry-level jobs is not in the economy’s interest. And covering Wall Street bets isn’t either.

This blog was originally posted on AFL-CIO blog on June 26, 2015. Reprinted with permission.

About the Author: The author’s name is William E. Spriggs. William E. Spriggs is the Chief Economist for AFL-CIO. His is also a Professor at Howard University. Follow Spriggs on Twitter: @WSpriggs.

The Right To Birth Control Just Won Its Most Significant Victory To Date In A Post-Hobby Lobby Case

Tuesday, June 23rd, 2015

Ian Millhiser Judge Jerry Smith is a deeply conservative judge. He once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. He’s a reliable vote against abortion rights. And he once described feminists as a “gaggle of outcasts, misfits and rejects.”

So when Judge Smith writes an opinion protecting women’s access to birth control, even when their employer objects to contraception on religious grounds, that’s a very big deal.

East Texas Baptist University v. Burwell is a consolidated batch of cases, handed down on Monday, involving religious employers who object to some or all forms of birth control. These employers are entitled to an accommodation exempting them from federal rules requiring them to offer birth control coverage to their employees. Most of them may invoke this accommodation simply by filling out a form or otherwise informing the federal government of their objection and naming the company that administers their employer health plan. At this point, the government works separately with that company to ensure that the religious employer’s workers receive contraception coverage through a separate health plan.

Several lawsuits are working their way through the federal courts which raise the same legal argument at issue here. In essence, the employers claim that filling out the form that exempts them from having to provide birth control makes them complicit in their employee’s eventual decision to use contraception, and so the government cannot require them to fill out this form. So far, every single federal appeals court to consider this question has sided with the Obama administration and against religious employers who object to this accommodation.

Few judges on any court, however, are as conservative as Judge Jerry Smith, a Reagan appointee to the United States Court of Appeals for the Fifth Circuit whose law clerks frequently go on to clerk for the most conservative members of the Supreme Court. Nevertheless, Smith makes short work of the claim that the fill-out-a-form accommodation burdens religious liberty.

The federal Religious Freedom Restoration Act (RFRA) provides that the federal government “shall not substantially burden a person’s exercise of religion” except in limited circumstances. Applying this language, Smith writes in a unanimous opinion for a three-judge panel that “[t]he plaintiffs must show that the challenged regulations substantially burden their religious exercise, but they have not done so.”

The crux of Smith’s analysis is that the plaintiffs in these cases object to birth control, but nothing in the law requires these plaintiffs to do anything whatsoever involving birth control. Rather, their only obligation, if they do not wish to cover birth control, is to fill out a form or send a brief letter to the federal government — and neither of those things are contraception.

“Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives,” Smith explains. “Instead, the acts that violate their faith are those of third parties.” Specifically, the plaintiffs object to the federal government working with an insurance administrator to provide contraception to certain workers. But the law does not “entitle them to block third parties from engaging in conduct with which they disagree.”

Indeed, Smith writes, if the plaintiffs in these cases were to prevail, it could lead to absurd challenges to basic government functions. “Perhaps an applicant for Social Security disability benefits disapproves of working on Sundays and is unwilling to assist others in doing so,” Smith explains. “He could challenge a requirement that he use a form to apply because the Social Security Administration might process it on a Sunday. Or maybe a pacifist refuses to complete a form to indicate his beliefs because that information would enable the Selective Service to locate eligible draftees more quickly. The possibilities are endless, but we doubt Congress, in enacting RFRA, intended for them to be.”

Smith’s opinion, in other words, should offer a fair amount of comfort to women whose employers seek to cut off their access to birth control coverage. Though there are signs that at least some of the justices would like for the plaintiffs in cases like East Texas Baptist to prevail, the fact that a judge as conservative as Jerry Smith rejected their legal arguments suggests that a majority of the Supreme Court will not embrace these lawsuits.

This blog was originally posted on Think Progress on June 22, 2015. Reprinted with permission.

About the Author: The author’s name is Ian Millhiser. Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Democrats Propose Most Ambitious Minimum Wage Bill Yet

Monday, May 4th, 2015

Bryce CovertSen. Patty Murray (D-WA) and Rep. Robert Scott (D-VA) are introducing a minimum wage bill on Thursday that would raise the federal floor from its current level of $7.25 an hour to $12 an hour by 2020, eliminate the lower tipped minimum wage that currently stands at $2.13 an hour, and automatically increase it as median wages rise.

Much of that plan is brand new. Previously, Democrats had set their sights on a minimum wage increase to $10.10 an hour, indexed to inflation thereafter, and only raised the tipped minimum wage to 70 percent of the regular minimum wage.

Sen. Murray said she took inspiration from the state she represents in deciding to get rid of the lower tipped wage. “Tipped workers are most exposed to the ups and downs of the economy. The unpredictability of wages makes it even more difficult to make ends meet, on top of trying to scrape by on low wages. So eliminating the tipped wage is long overdue,” she told ThinkProgress in emailed statements. “Washington state has led the way in this, and we’ve seen that it works for restaurants, businesses, and workers.”

Murray also told ThinkProgress that Washington inspired her to target a higher wage level. “There has been great work done in Washington state and across the country to increase wages even further to help the families and businesses in those communities, and I support those efforts,” she said. Washington has long had the highest wage in the country, which is currently $9.47.

A $10.10 wage would have brought it in line with about where it would have been if it had kept up with inflation since its peak in 1968. But this was, according to economist David Cooper with the Economic Policy Institute who has worked with lawmakers on crafting the $12 wage bill, “the lowest possible threshold for where you could be aiming.” He added, “What you’re saying is that low-wage workers should have seen no material improvement in their standard of living over the last 50 years.” That’s despite the fact that there has been significant economic growth, driven in part by rapidly increasing worker productivity.

Even though the Republican-led Congress is unlikely to take such a bill up, Democrats have recently decided they need to take the debate around the minimum wage further. The new benchmark, Cooper said, is to “return the minimum wage to where the distance between the lower paid worker and typical worker is no greater than it was back then.” If lawmakers use a ratio of the minimum wage to the median wage for all workers, which was 52 percent back in 1968, then a $12 wage by 2020 makes a lot of sense, as it would bring the minimum up to 54 percent of the median wage, which today stands at just over $17 an hour. “It’s essentially returning the minimum wage to the same value it had in 1968 in relative terms,” he said.

Real-life experiments beyond Washington state also help give a higher wage level credibility. The majority of states have now raised their minimum wages above $7.25, and evidence shows that critics of a higher wage who worry about job losses may not have a reason to fear an increase. Last year, job growth wasactually stronger in states that raised their wages than in those that didn’t, and economics have generally found that minimum wage increases have little impact on job growth. Even fears that Seattle’s increase to $15 an hour were making businesses close were overblown. “Places are pushing minimum wages into territory that we haven’t done before, and the sky hasn’t fallen,” Cooper noted.

Democrats may also have been pushed into a higher wage by low-wage workers who organized and staged repeated strikes demanding a $15 minimum wage in the fast food, retail, home care, and adjunct professor industries. “I think the Fight for 15 [movement] started to recalibrate people’s thinking in terms of what the minimum wage could be,” Cooper said. “From a political standpoint and also from a national awareness standpoint, the Fight for 15 just did a fantastic job highlighting how low pay is in a lot of these industries.”

That kind of national movement has paved the way for lawmakers to reach higher. “I think the Fight for 15 has created space for Democrats, for any politician, to come out in favor of a minimum wage in the $12 range and look reasonable,” he noted. While Congress isn’t looking at a federal $15 minimum wage at this point, some cities and states have taken up the call. Seattle and San Francisco have passed wage hikes to that level, and many other cities and even some states are considering doing the same.

This article originally appeared in thinkprogress.org on April 30, 2015. Reprinted with permission.

About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Malpractice Lawsuit Alleges Flawed Defense Strategy in SOX Whistleblower Case

Monday, May 4th, 2015

jason zuckermanPlayboy has sued Sheppard Mullin for malpractice and is seeking $7.6M in damages for losing a Sarbanes-Oxley whistleblower case at trial “in spectacular fashion.” The complaint alleges that Sheppard did not properly evaluate, or inform Playboy of, the true damage exposure and missed several opportunities to settle the case for a fraction of the policy limits of Playboy’s employment practices liability insurance policy. The SOX whistleblower case was brought by Catherine Zulfer, a former accounting executive who alleged that Playboy terminated her employment for raising concerns to Playboy’s Chief Financial Officer and Chief Compliance Officer about accruing discretionary executive bonuses without Board approval.

The complaint alleges a flawed approach to potential settlement that, in my experience, is fairly typical in employment litigation.

  • About two weeks before trial, Sheppard predicted a 75% chance of defeating Zulfer’s SOX whistleblower claim.
  • At trial, the jury returned a verdict of $6,000,000 in compensatory damages and a finding of malice, oppression or fraud after deliberating only 1 hour and 45 minutes.
  • Playboy’s insurance policy afforded $5,000,000 of coverage above a $500,000 self-insured retention.
  • In August 2013, Zulfer offered to settle for $1M and Sheppard failed to put any pressure on the insurer or on Playboy to settle.
  • Following depositions in November 2013 that were damaging to Playboy, Zulfer’s attorney reiterated the demand of $1M with a willingness to negotiate downward. Sheppard again neither informed Playboy of the increased exposure in excess of policy limits nor advised Playboy to insist that its insurer accept a demand within policy limits.

Sheppard had the misfortune to lose in “spectacular fashion” largely because Zulfer was represented byDavid DeRubertis, a preeminent trial lawyer who has obtained large verdicts in several employment cases.  But the approach to potential settlement Playboy alleges is typical of what I see in hard-fought whistleblower cases.  The playbook usually consists of offering only nuisance value pre-litigation, digging up dirt about the whistleblower that is wholly irrelevant to the merits of the case, making misleading accusations about the whistleblower’s job performance, using discovery to harass the whistleblower, trying to focus the case on the after-acquired evidence defense, and withholding damaging documents until the whistleblower prevails on a motion to compel. The super-charged version of this playbook includes bringing SLAPP suits against the whistleblower and threatening to file a frivolous Rule 11 motion.

While in my experience these tactics often backfire and do not benefit the employer, such tactics generate hefty fees for defense counsel. As big firm attorneys are under increasing pressure to meet high billable-hour requirements, there is little incentive to perform a realistic case assessment or to lean on a client to settle. And in whistleblower cases, the employer often resents the whistleblower and is far more inclined to vigorously defend the claims than to make a good faith effort to settle.

While this malpractice case against Sheppard was probably widely read in the employment bar, the typical defense playbook is unlikely to change. In-house counsel, however, would be well advised to assess employment cases through the perspective or eyes of the jury

rather than rely solely on outside counsel assuring the company that the whistleblower will never win at trial.

 Reprinted with permission.

About the Author: Jason Zuckerman is Principal at Zuckerman Law (www.zuckermanlaw.com)  and represents whistleblowers nationwide.  He is the author of the Whistleblower Protection Law Blog (www.whistleblower-protection-law.com).

Florida Passes Law That Bans Discriminating Against Pregnant Women In Public

Thursday, April 30th, 2015

Bryce CovertLast week, the Florida legislature passed a bill banning discrimination against pregnant women at work as well as in public places like restaurants or hotels.

The bill amends the state’s Civil Rights Act by adding pregnancy to race, sex, and physical disability as protected classes. It got unanimous support in the state senate and near-unanimous passage in the House. It now heads to Gov. Rick Scott’s (R) desk, whose office didn’t return a request for comment on whether he would sign it.

Lawmakers introduced it to codify a ruling from the state’s Supreme Court last year in favor of plaintiff Peggy Delva, a front desk manager at a condominium building who sued her employer for barring her from covering other workers’ shifts after she became pregnant and firing her when she returned from leave. The court ruled that she was discriminated against on account of her pregnancy and that violated Florida’s law against sex discrimination, overturning lower courts who ruled against her.

Federal law, including the Pregnancy Discrimination Act and the Americans with Disabilities Act, is also supposed to protect pregnant women, but they still experience widespread discrimination. An estimated quarter million womenevery year are denied their requests for employers to give them accommodations at work so that they can stay on their jobs throughout their pregnancies, so they end up pushed onto unpaid leave or suffering health complications such as miscarriages if they stay. The United States Supreme Court recently ruled in favor of Peggy Young, who had sued UPS for refusing to give her light duty after she became pregnant, forcing her onto unpaid leave without benefits.

A number of women in a variety of industries have also sued their employers for firing them just after they disclosed their pregnancies.

At the same time, however, more and more women are choosing to work while pregnant. Today, two-thirds of first-time mothers work while pregnant, up from less than half in 1960. Of those who do, 80 percent keep working into their last month, compared to just a third in the ’60s. But past court cases show that employers often vilify or stereotype pregnant women, such as relying on the idea that they’ll just end up leaving after they have their babies, to justify firing them.

Some states have taken further action to protect pregnant employees, passing Pregnant Worker Fairness Acts to require employers to give them accommodations to stay on the job. A similar law has been introduced at the federal level but hasn’t moved forward.

Florida’s law should also protect women who say they have been barred from entering bars because they might appear to be pregnant.

This article originally appeared in thinkprogress.org on April 27, 2015. Reprinted with permission.

About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

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