Archive for the ‘Uncategorized’ Category
Saturday, October 19th, 2013
Department store chain Macy’s, known for its lavish Thanksgiving Day parade, is taking heat for canceling the holiday for many of its 175,000 employees. On Oct. 13, the Chicago Sun-Times reported the news that Macy plans to break with its 155-year practice of closing its stores on Thanksgiving Day.
Macy’s spokesperson Holly Thomas confirmed to Working In These Times that about 750 of the company’s 850 stores nationwide will be opened at 8 pm, requiring some 87,500 workers to give up a part of their traditional family holiday. But she stressed that no employees would be required to report to work against their will and that a sufficient number of volunteers had already been recruited. Further, those workers will all receive time-and-a-half holiday pay for their full shifts, Thomas says.
And surprisingly, the largest union local representing Macy’s workers had a similar take. Gail Rogers, Secretary-Treasurer of Retail, Wholesale and Department Store Union Local 1-S, which has over 3,500 members in New York City and nearby Westchester County, says she sees no reason to criticize Macy’s as long as the company honors its union contracts. “We received notice a couple of months ago, and Macy’s will be honoring our contract. Nobody is going to be forced to work if they prefer to celebrate the holiday, and the volunteers will all be getting time-and-a-half. Plenty of our members are willing… so there aren’t a lot of complaints,” she says.
So is this a tempest in a teapot? Rogers says that there is still one concern: While union workers are protected, non-union workers have no one to ensure Macy’s keeps its word.
“My concern would be for the non-union workers” at Macy’s and its subsidiary Bloomingdales, Rogers says. “Without a good union contract, it’s easy to see how the voluntary nature of the work, and the premium pay, might fall by the wayside as time goes by.”
Only about 10 percent of Macy’s workers are unionized, according to the company’s most recentSecurities & Exchange Commission disclosure statement, with pockets of union strength in New York, San Francisco, Seattle, Boston, and the greater Washington, D.C. metropolitan area. Aside from RWDSU, workers are unionized through the United Food & Commercial Workers Union (UFCW), Teamsters, Service Employees International Union (SEIU) and Unite Here.
Both RWDSU and UFCW have organizing efforts underway to increase union membership at Macy’s stores, but the company is offering stiff resistance.
For example, Seattle-based UFCW Local 21 is currently trying to organize a Macy’s store in Silverado, Wash., in hopes of adding to the four stores it already represents in the area. A June 28 report in the Kitsap Sun indicated the union had filed unfair labor practice charges against the store in the bitter dispute. UFCW Local 21 Communications Director Tom Geiger did not respond to several requests for comment from Working In These Times.
A similar situation in the San Francisco Bay area culminated in July 2011 with a union election victory by UFCW Local 5 at a Macy’s store in Pleasanton, Calif. In a press statement at the time, Local 5 spokesperson Mike Henneberry said the union had overcome “aggressive employer resistance” to win the National Labor Relations Board-supervised election. The victory increased the number of Macy’s stores under Local 5 contract from two to three. Like Geiger, Henneberrry did not respond to requests for comment this week from Working In These Times.
Yet another organizing effort by Dedham, Mass.-based UFCW Local 1445 is even receiving special attention by federal regulators. Local 1445 is currently seeking a union election among a small group of cosmetics and perfume salespersons at the Macy’s store in Saugus, Mass., but the company is fighting the election as an improper interpretation of federal labor law. The case is now before the NLRB, but the U.S. Chamber of Commerce has dubbed the cosmetics and perfume sales staff an improper “micro-union” and is encouraging federal lawmakers to support a new labor law to restrict such organizing efforts. Local 1445 President Rick Charette did not respond to a request for comment.
RWDSU’s Rogers tells Working In These Times that efforts to expand the jurisdiction of Local 1-S have been met with similar determined resistance over the years. The organizing efforts contributed to an especially difficult contract negotiation in 2011. That was the same year that Local 1-S has a successful campaign to organize new Macy’s workers in the Elmhurst neighborhood in city’s borough of Queens.
For the unions then, the end of the Thanksgiving holiday at Macy’s is not so much an occason for outrage as the latest step in a long national trend that reinforces the need for union representation. As Macy’s noted in its own defense, Thanksgiving openings are increasingly common among large retailers anxious to begin the Christmas shopping season. Wal-Mart, for example opened its doors at 10pm on Thanksgiving in 2011, and pushed the time back to 8pm in 2012. Employers asking for more from workers is a tale as old as business; and historically, it’s been the job of unions to make sure workers’ rights aren’t trampled.
One non-union Macy’s employee, Lorraine Riley-James of Chicago, is peeved by the Thanksgiving openings. ”It’s just unfair. It’s selfish. I hate it,” she says. An activist in the Chicago-area Fight for 15 campaign for higher wages in the retail and fast food industries, Riley-James regards the Macy’s decision as a unilateral move to take away one of the few paid holidays enjoyed by retail workers. “They really took it away from us last year when they started the midnight openings [on Black Friday]. … You have to come in earlier to get ready, [so it] ruins the holiday.”
Riley-Jones says she plans to contInue her activism for higher wages and better benefits for workers at Macy’s and elsewhere.
This article was originally printed on Working In These Times on October 18, 2o13. Reprinted with permission.
About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.
Monday, October 7th, 2013
A New York federal district court has ruled that a former unpaid intern for Phoenix Satellite Television US, Inc., cannot bring a sexual harassment claim under the New York City Human Rights Law, because the lack of compensation renders her unable to meet the requirement of employee status under the statute.
Judge P. Kevin Castel issued the ruling in Lihuan Wang v. Phoenix Satellite Television US, Inc., on Thursday. The alleged harassment included ongoing social and sexual overtures and physical touching by a bureau chief who supervised the plaintiff’s work.
As reported by Jay-Anne B. Casuga for the BNA’s Daily Labor Report (subscription required):
A female former unpaid broadcasting intern cannot bring a sexual harassment claim under the New York City Human Rights Law because she is not an “employee” within the meaning of the law, a federal judge in New York held Oct. 3, addressing an issue of first impression . . . .
. . . Relying on federal and New York case law, the district court said unpaid interns do not qualify as employees under Title VII of the 1964 Civil Rights Act or the New York State Human Rights Law because of the “absence of remuneration,” which is an “essential condition to the existence of an employer-employee relationship.”
O’Connor v. Davis (1997)
The district court cited favorably to the leading decision on the legal question of whether unpaid interns have standing to sue under employment discrimination laws, O’Connor v. Davis, a 1997 Second Circuit Court of Appeals decision involving a student social work intern who alleged that she was sexually harassed by a staff psychiatrist in the course of an internship with the Rockland Psychiatric Center in New York.
The plaintiff filed suit, claiming, in part, that she was subjected to sexual harassment in violation of Title VII of the federal Civil Rights Act. The Second Circuit Court of Appeals held that O’Connor was not an “employee” within the statutory meaning of Title VII, reasoning that compensation “is an essential condition to the existence of an employer-employee relationship.” The absence of any kind of salary, wages, health insurance, vacation and sick pay, or any promise of such direct or indirect remuneration from Rockland was fatal to O’Connor’s claim of employee status, and consequently, to the Title VII count of her complaint.
EEOC’s position, too
The holding of O’Connor v. Davis apparently represents the current position of the Equal Employment Opportunity Commission, the federal agency charged with interpreting and enforcing America’s employment discrimination laws. Blair Hickman and Christie Thompson reported on this question for ProPublica:
Federal policies echo court rulings. The laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive “significant remuneration,” according to commission spokesperson Joseph Olivares.
“At least with respect to the federal law that we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual harassment,” Olivares said in an email to ProPublica.
It’s unclear how many interns are sexually harassed at work. The commission doesn’t keep those statistics, according to Olivares.
October 7 additional comments: Because I wanted to post news of this case promptly, I didn’t spend a lot of time parsing out the legal and policy implications. But I’d like to add a few words now.
The court’s holding in this case raises the related issue of whether or not unpaid internships violate federal and state minimum wage laws, a topic that I’ve addressed frequently on this blog, such as this report on the June 2013 Glatt v. Fox Searchlight Pictures decision in which a federal district court held that unpaid interns were entitled to back pay. In instances where an unpaid intern should’ve been paid under the law, the employer benefits two-fold by claiming the lack of pay renders an intern unable to bring a discrimination or sexual harassment claim, no matter how bad the underlying alleged behavior. By not paying an intern in violation of the law, the employer also may escape liability for discrimination or sexual harassment. How’s that for a bad result?!
I soon will be posting a draft of a new law review article that discusses the many recent legal, policy, and advocacy developments concerning the internship economy. It will serve as an update and sequel to my 2002 article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), that discusses the above-mentioned O’Connor v. Davis decision in some detail.
For reasons I explain in my forthcoming article, I believe that the question of covering interns under employment discrimination laws should be dealt with separately from the issues of compensation under minimum wage laws.
This article was originally printed on Minding the Workplace on October 5, 2013. Reprinted with permission.
About the Author: David Yamada is a tenured Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston. He is an internationally recognized authority on the legal aspects of workplace bullying, and he is author of model anti-bullying legislation — dubbed the Healthy Workplace Bill — that has become the template for law reform efforts across the country. In addition to teaching at Suffolk, he holds numerous leadership positions in non-profit and policy advocacy organizations.
Wednesday, August 21st, 2013
When it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job. Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.
The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks. According to the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants.
Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds. Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness. Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.
The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks. These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks. A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.
In 2011, California limited the use of credit checks in employment. After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence. However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.
In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?” Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”
In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants. Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence. In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.) Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.
These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants. Advocates hope Freeman doesn’t signal that more bad news lies ahead.
This article originally appeared on CELA Voice on August 19, 2013. Re-posted with permission.
About the Author: Christian Schreiber is an active member of the California Employment Lawyers Association, where he serves on CELA’s Legislative Committee and Wage and Hour Committee. He is also a member of the American Constitution Society, the Public Justice Foundation, and the Consumer Attorneys of California. Mr. Schreiber received his B.A. from UCLA in 1996.
Friday, August 9th, 2013
What started out last fall as a one-day walkout at fast-food restaurants to protest poverty-level wages and stand up for basic human dignity has transformed into a movement that has captured the public interest.
I’ve been privileged, especially in recent weeks, to talk to institutional partners, policymakers and media about why low-wage workers across the country are risking their jobs and forgoing a much-needed day’s pay to work toward a better future for themselves and their families. We will be better off when hardworking people have enough money in their pockets to put back into their communities and generate more jobs, and SEIU members are proud to back these workers in their pursuit of economic justice and better lives for their families.
I traveled to New York City on Wednesday, to talk to Comedy Central host Stephen Colbert about the fast-food strikes. How in the world did this happen? I told Kendall Fells, an organizer from Fast Food Forward, it is because of the courage of the strikers, such as Shay Kerr and Shakira Campbell.
Shay has worked at McDonald’s in East Flatbush, N.Y., for six months. She earns minimum wage and, because sometimes her hours are cut for no reason, she can’t rely on a set pay every week. Since she cannot make ends meet on her wages, she has been bouncing around shelters. She’s fighting for a union so she can make a better life for herself and her 6-year-old son. Shakira is leading an action tomorrow at her store to be put back on the schedule. Their stories echo stories I’ve heard from workers all around the country.
Shakira, Shay, and many others who I have had the privilege of meeting in recent months are helping the public understand that, contrary to what some believe, these positions aren’t being filled by teenagers. Anyone who thinks they are is nostalgic for a time that no longer exists.
More than 4 million people work in the food service industry. Their average age is 28. Many of these workers have children and are trying to support a family. The median wage (including managerial staff) of $9.08 an hour still falls far below the federal poverty line for a worker lucky enough to get 40 hours a week and never have to take a sick day. According to the National Employment Law Project, low-wage jobs comprised 21 percent of recession losses, but 58 percent of recovery growth in the last few years.
This means middle-class jobs are disappearing while low-wage jobs are growing. If we simply accept this as fact, then the divide between the haves and the have-nots will only grow worse. And that is just wrong.
We cannot build a strong, equitable economy on low-paying jobs. Corporate profits are at an all-time high. McDonalds earned $5.5 billion just last year; other fast-food restaurants and retail chains are similarly profitable. They can afford to raise wages.
Americans have a long history of sticking together to fight for something better. SEIU can be proud of how we are fighting on so many fronts, from winning commonsense immigration reform, to delivering on the promise of the Affordable Care Act, to telling our elected officials to invest in vital public services, and to organizing in various sectors to make sure workers have a voice in the workplace. All of our members are involved in these campaigns to help workers strengthen and grow our union. As we do it, we know we have to reach out to the growing service sector of low-wage jobs in retail and fast food.
We are united to make a path to power for all workers; winning a just society; and leaving the world a better and more equal place for next generations to come.
This article originally appeared on SEIU blog on August 8, 2013. Reprinted with permission.
About the Author: Mary Kay Henry is the International President of the Service Employees International Union (SEIU).
Monday, July 29th, 2013
Imagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.” It is July 2013. After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.
Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant. Lou is an overweight, balding, married father of three grown daughters. Lou offers Mary an associate producer position, reporting directly to him. Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace. Edie demands that Mary be fired immediately. Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional. Lou fires Mary. He replaces her with Rhoda. In Iowa in 2013, Mary has no legal recourse.
This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive. Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms. In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.” Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).
The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.
Here is the official photo of the Justices of the Iowa Supreme Court. See if you can spot what they all have in common.
Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant. For ten years, she was an exemplary employee. She regarded her boss as a “father figure.” Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant. In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage. Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson. Ms. Nelson sued for gender discrimination. The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.
The Court’s original decision in late 2012 was greeted with outrage and ridicule. In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial. Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself. “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left). “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”
Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere. Of course it was “because of sex.” If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss. If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her. Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.
But back to Mary Richards. In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune. What if he re-hired Mary? Could Edie get her fired again in California? Not likely.
The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit. The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination. California state law takes a broader view of the impact of sexual favoritism on the workplace environment. Our Supreme Court has recognized that sexual favoritism is not merely a private matter. Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women. California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.
And besides. Why would Lou even listen to Edie? They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried. You can watch the wedding here.
Article originally appeared on CELA Voice on July 25, 2013. Reprinted with permission.
About the Author: Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation and has worked for the State of California as counsel to the Director of the Department of Industrial Relations. CELA VOICE is a project of the California Employment Lawyers Association. Our goal is nothing short of changing the discussion about issues of importance to California employees. Our method is simple. We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health. The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.
Friday, July 19th, 2013
As House Republicans mull maiming the Senate’s immigration bill, a thousand pundits are asking what their moves will mean for future elections. Meanwhile, far from the spotlight, some courageous immigrant workers are asking whether Congress will finally disarm employers who use immigration status to silence employees. If Congress punts on immigration reform, or merely passes an industry wish list, it will have doubled-down on complicity in a little-discussed trend that’s driving down working conditions for U.S.-born and immigrant workers alike: For too many employers, immigration law is a tool to punish workers who try to organize.
The workers watching Congress include Ana Rosa Diaz, who last year was among the Mexican H-2B visa guest workers at CJ’s Seafood in Louisiana, peeling crawfish sold by Walmart. Accounts from workers and an NGOassessment suggest the CJ’s workers had ample grievances, from the manager that threatened them with a shovel, to the worms and lizards in the moldy trailers where they slept, to the swamp fungus that left sticky blisters on their fingers as they raced through shifts that could last twenty hours.
To maintain that miserable status quo, workers allege, management regularly resorted to threats. The most dramatic came in May 2012, when they say CJ’s boss Mike LeBlanc showed up at the start of their 2 a.m. shift to tell them he knew they were plotting against him, and that he knew “bad men” back in Mexico, and to remind them that — through labor recruiters there — he knew where their families lived. Then LeBlanc ticked off some names, including Diaz’s daughter. Diaz told me the threat of violence was all too clear: “I’ve never been so afraid of anybody in my life.”
Long before that speech, CJ’s workers say their managers deployed an all-too-common threat, what they call the “black list”: not just being deported back to Mexico, but being prevented by recruiters there from ever working in the United States again. “That’s what makes us the bosses’ subjects,” Diaz told me in a 2012 interview. “We’ve realized most bosses use the same tactics…” said her co-worker Martha Uvalle. “‘I’ll send you back to Mexico. I’ll report you to immigration. You’ll never come back.’” (CJ’s Seafood did not respond to various reporters’ requests for comment last year, including mine. Efforts to reach the company for comment last week were unsuccessful.)
Guest workers aren’t the only immigrants whose bosses can wield their immigration status as a weapon. Too often, employers who’ve happily gotten rich off the labor of undocumented workers develop a sudden interest in those employees’ legal status once they start speaking up. A few days after three-year subcontracted food court employee Antonio Vanegas joined a strike in the government-owned Ronald Reagan Building, he was detained by Homeland Security and placed in a four-day immigration detention. The same day that workers at Milwaukee’s Palermo’s Pizza plant presented their boss with a union petition, management presented workers with letters stating they’d need to verify their legal status. Ten days later, Palermo’s fired 75 striking workers, arguing it was just following immigration law.
For every immigrant worker that risks retaliation, there are others that choose not to, chastened by a well-founded fear that their status will be used against them. (There’s a risk of retaliationanytime U.S. workers try to exercise workplace rights, but the threat for undocumented or guest workers is particularly acute.) That vulnerability holds back the efforts of unions and other labor groups to organize and transform low-wage industries — or even to ensure employers pay minimum wage to their workers, immigrant or otherwise. It helps explain why the center of gravity in organized labor — long the site of struggles between exclusion and equality — has swung decisively in recent decades to support immigration reform. Rather than pushing to deport immigrants, unions (including my former employer) are mostly trying to organize them. The less leverage employers have over immigrants’ legal status, the more leverage immigrant and U.S.-born workers will have to wrest dollars and dignity from their bosses together.
The Senate’s immigration bill takes a few key steps to make that easier, each of which activists expect will face strong opposition in the House. The bill features a path to citizenship that organizers expect will help disarm deportation-happy bosses by allowing millions of workers to obtain secure and equal legal status. It creates a new “W visa” program with more labor protections that advocates hope will become a template to someday replace existing guest worker programs like the H-2B. And the bill includes several anti-retaliation measures designed to stem abuse: from more chances for workers who exposed crimes to get special visas or stays of deportation, to language overturning a Supreme Court decision that prevented illegally fired undocumented workers from getting back pay.
Those pro-labor provisions already come with painful sacrifices. Even before the Senate pegged it to a militarized “border surge,” that path to citizenship was long and littered with obstacles. Those include a requirement of near-continuous employment that advocates warn could still leave immigrants especially vulnerable to retaliatory firings, and an exclusion based on criminal convictions that — combined with a mandate that employers use the controversial status-checking software e-Verify — could leave some workers more vulnerable than ever. And advocates note that the H-2B program could at least temporarily more than double in size during the bill, though it would be subject to some modest new protections.
Facing a hostile House, labor officials are framing those Senate compromises as a floor for labor language in immigration reform: “There can be no further erosion of rights, and we’re protecting that as it goes to the House,” says Ana Avendaño, the AFL-CIO’s Director of Immigration and Community Action. But the Senate provisions are more likely to be treated as a ceiling. “We’ll lose all of the worker protection stuff in the House,” said a different advocate working on immigration for a union, and then “hope that reason prevails in the conference” committee tasked with reconciling Senate and House legislation.
The CJ’s Seafood story has an unusual ending: After their boss’s implied threat to their families, Diaz and seven of her co-workers mounted an against-the-odds strike. “We felt,” Diaz told me, “that if we didn’t do something to stop this, sometime in the future, it would be our children going through it.” You won’t find much such courage in Congress.
Article originally published on Reuters on July 17th, 2013. Reprinted with permission
About the Author: Josh Eidelson is a reporter covering labor as a blogger for The Nation and a contributing writer for Salon. He worked as a union organizer for five years.
Thursday, July 18th, 2013
For workers in America, it can be hard to know where to turn when a boss pays you late or not at all, doesn’t provide benefits, or just yells at you for no good reason.
That’s why a Working America, a “community affiliate” of the AFL-CIO that focuses specifically on nonunion workers, launched a website last month that makes it easy to get that kind of information. FixMyJob.com is a bit like WebMD, but instead of typing in your aches and pains, you tell it about problems at your workplace. Launched on June 5, the site has already garnered 5,000 visitors, according to Working America organizer Chris Stergalas.
After choosing from a comprehensive list of workplaces and problems, visitors to FixMyJob.com get a set of resources and options for taking action. While unionization is a part of the solution for many problems, the site also informs workers about labor laws and instructs them on how to advance proposals to defend their rights. The site is a part of Working America’s expanded new campaign to organize people in their communities in all 50 states, says Executive Director Karen Nussbaum.
In both online and offline campaigns, Nussbaum said, the aim of Working America is to reach beyond the workplace and rally support at the local level for a pro-labor agenda. Working America’s list of priorities includes living wage laws, expanded health care, adequately funded public schools, and the protection of voting rights.
Before the launch of Working America, Nussbaum had served as founder and director of 9to5, National Association of Working Women; as director of the Women’s Bureau of the U.S. Department of Labor; and as an advisor to former AFL-CIO president John Sweeney. I recently spoke with her about her vision for Working America, about FixMyJob.com, and about what the 50-state expansion means for the prospects of union revival.
Working America was founded in 2003 partly as an answer to the question of how to mobilize people who are not union members but would benefit from activism by and for working people. Nussbaum said that, from the beginning, her staff “concentrated on talking to workers in their communities.” Scoring success in mobilizing blue-collar voters for electoral campaigns, the organization created a foundation of members, and it is increasingly attempting to mobilize them around broader issues like working conditions, paid sick leave, and the right to join unions.
She added that the ultimate goal of Working America is “finding the connections with collective bargaining.” But she’s experimenting with different ways of organizing that might lead there. “It’s about taking whatever path opens on the way.”
In past years, Working America focused on battleground states during elections. But regional and statewide labor federations have pushed the organization to expand to all 50 states over the next five years. At first, Nussbaum said, that goal seemed “preposterous,” but she has come to embrace it. Ultimately, she said, she appreciated the strategic value of supporting local labor structures as they connect with community allies and work on issues that go beyond a single workplace.
One reason why the 50-state strategy is necessary is the national proliferation of so-called “right-to-work” laws and attacks on voting rights, two issues that Working America has taken up in Pittsburgh, Penn..
Nussbaum describes the approach taken by activists leading the Pittsburgh campaign:
These are a group of mostly white people in their 40s and 50s. They decided that voter protection actually was the key issue for them. Their group set a goal of reaching a million people in the Pittsburgh area on the issue. Part of that million was going to be reached by doing letters to the editor and circulation of the newspaper and so on. It also included things like a guy who said, “I go to my hardware store every weekend and everybody there knows me, so I will set up a table at the hardware store every weekend,” which is what he did. Another woman said that she dropped her father off at adult daycare every day, and so she would talk to the workers and other people at the adult daycare center.
This type of organizing taps into the existing frustrations that people have—in the Pittsburgh case obstacles to voting—and showing them how they can make a difference. “It’s everybody recognizing their own networks,” Nussbaum said. “I think that’s the key to organizing, isn’t it?”
She explained that Working America encourages people to see themselves as leaders within their own social circles, and, as it did in the case of the man in the hardware store, this recognition makes it easier to take action.
Nussbaum sees FixMyJob.com as a complement to these offline campaigns and as a means for introducing people to the labor movement. “Some people who use these tools will get turned on and they will become activists for life,” she said. “Some will fail, but it will help create a new environment that I think supports what we’re already beginning to see bubble up.”
This article was originally posted on Yes! Magazine on July 8th, 2013. Reprinted with permission.
About the Author: Amy B. Dean is a fellow of The Century Foundation and principal of ABD Ventures, an organizational development consulting firm that works to develop new and innovative organizing strategies for social change organizations. Dean has worked for nearly two decades at the cross section of labor and community based organizations linking policy and research with action and advocacy
Wednesday, May 8th, 2013
Based on what Senate Minority Leader Mitch McConnell was saying on the Senate floor Wednesday morning, it sounds like he’s a no on President Obama’s nomination of Thomas Perez for labor secretary, and like we’re going to see yet another filibuster:
“He is a committed ideologue who appears willing, quite frankly, to say or do anything to achieve his ideological ends,” McConnell said on the floor. “His willingness, time and again, to bend or ignore the law and to misstate the facts in order to advance his far-left ideology lead me and others to conclude that he’d continue to do so if he were confirmed to another, and much more consequential, position of public trust.”Foreshadowing a filibuster of Perez, the minority leader, who is up for reelection next year, pounded earlier remarks by the nominee saying it’s sometimes necessary to “push the envolope” when federal law is “muddled.”
“Taken together,” McConnell said, “all of this paints the picture, for me at least, not of a passionate liberal who sees himself as patiently operating within the system and through the democratic process to advance a particular set of strongly held beliefs, but a crusading ideologue whose conviction about his own rightness on the issues leads him to believe the law does not apply to him. Unbound by the rules that apply to everyone else, Mr. Perez seems to view himself as free to employ whatever means at his disposal, legal or otherwise, to achieve his ideological goals.”
Previously, Republican senators have said they object to Perez because he testified after the fact about a decision he wasn’t involved in and which two investigations have said was appropriate, but which allows Republicans to link Perez’s name with the New Black Panther Party so they’re going to keep talking about it despite it being a non-story with which he was not involved anyway. Also, Sen. Tom Coburn is upset about a requirement that some doctors provide translators for patients who don’t speak English, and Republicans claim that Perez misled senior officials and covered up his motivation in a housing discrimination case in which he in fact consulted with a series of senior officials before taking action.
Basically, Perez is an Obama nominee who’s tough and effective in service of vulnerable people, not those in power. Being an Obama nominee is reason enough for many Republican senators to oppose him. But being tough and effective for people who aren’t rich or powerful? That’s really not to be tolerated.
This article was originally posted on the Daily Kos on May 8, 2013. Reprinted with Permission.
About the Author: Laura Clawson is an editor at the Daily Kos.
Saturday, February 9th, 2013
Anyone with common sense would agree that healthy families are essential to a robust economy. That’s why it’s worth celebrating the 20th anniversary of the Family Medical Leave Act on February 5; one of the most significant advances for working families in our nation’s history. In 1993, FMLA transformed the workplace and strengthened the American family by helping millions of workers secure job-protected leave to recuperate from a serious illness, give birth or adopt a new child, or take care of a seriously ill family member. Prior to FMLA, many people lost their jobs when these types of life events occurred. Workers have used FMLA more than 100 million times since its enactment during the Clinton administration.
Diane, a Denver teacher for ten years, was able to keep her job while battling cancer, thanks to the FMLA. The mother of a young son at the time, Diane said “I was able to take time off because I qualified for FMLA. Because I [also] had access to paid sick days, and a paid sick leave bank, I was able to get some wage replacement while I was out for three months.” Diane was one of the fortunate ones, because she had access to FMLA and a paid sick leave bank that helped keep her financially afloat.
As critical as FMLA continues to be in protecting jobs and families, there are major gaps in the law. FMLA’s biggest weakness is that it’s unpaid. Seventy-eight percent of covered employees who need FMLA, don’t take it because they can’t afford to. And almost half of all workers lack job protection under FMLA because they haven’t worked for their employer long enough, they’re not scheduled for enough hours, or the size of their company is too small to make them eligible. The definition of “family” also needs to be expanded beyond spouses, children and parents so that the law is more relevant to real peoples’ lives and caregiving responsibilities. Moreover, the reasons someone can take leave are severely limited in the law. In addition to improving FMLA, paid sick days need to be expanded to cover more routine illnesses and preventive care that aren’t covered by FMLA.
Women in low-wage jobs are least likely to have any paid sick, personal, or vacation time at all, leaving one of the most vulnerable segments of our workforce unprotected. Ten percent of women who did take FMLA ended up on public assistance.
Sonya worked full-time as a medical interviewer for 11 years at a large hospital in Atlanta. During her pregnancy, she saved up money totaling two months of expenses to help her pay her bills while she was on FMLA. But when Sonya’s son was born prematurely and placed in intensive care and she needed to take additional time off to care for her medically-fragile son, she used up her leave and savings pretty quickly. Even though Sonya had access to FMLA, she ended up on public assistance and struggled to make ends meet.
Unfortunately, many people are still forced to go to work when they need to be at home caring for themselves or their families. Americans agree that there’s nothing more important than taking responsibility and caring for your family members. After 20 years, it’s time to make FMLA more affordable and accessible. Our country needs healthy and economically secure families to help fuel a strong, thriving economy.
To read additional stories from hardworking Americans who have benefited from FMLA, as well as those unable to do so because of a lack of accessibility or affordability, click here. Their voices make a strong case for strengthening and improving FMLA so that more of us are able to balance responsibilities at home and on the job.
This article was submitted by the new website 9to5.
About the Author: Linda Meric is the National Public Relations Coordinator at 9to5.
Wednesday, January 9th, 2013
Three Take-Aways from the EEOC’s Strategic Enforcement Plan
By Commissioner Chai R. Feldblum
The Equal Employment Opportunity Commission (EEOC) enters the New Year with the wind at its back. Following the enactment in February 2012 of a four-year Strategic Plan that addressed all aspects of the agency’s work, the Commission met the plan’s first performance measure with the enactment in December 2012 of a Strategic Enforcement Plan for 2013-2016 (SEP).
There are three take-aways from the SEP:
1) The agency’s targeted focus on select areas of law will hopefully result in a demonstrable impact on unlawful discrimination in those areas.
2) An active and engaged Commission will stay abreast of activities undertaken pursuant to its delegated authority.
3) The Commission will take steps necessary to bring coherence and vigor to its federal sector work.
A) A Targeted Enforcement Focus
The SEP establishes a list of priority enforcement areas for the agency. These include:
· Discriminatory class-based recruitment and hiring practices
· Issues affecting immigrant and migrant workers
· Emerging areas of law (such as certain ADA issues; accommodating pregnancy-related limitations; and coverage of LGBT people under sex discrimination law, as it may apply)
· Compensation systems and practices that discriminate based on gender
· Policies and practices that discourage or prohibit individuals from exercising their rights
· Systemic harassment
Meritorious charges raising one of these issues will receive focused attention by EEOC investigators and lawyers. By providing direction to agency staff regarding the issues that require careful review, the priority list will help the EEOC focus its investigatory resources and lead to more timely conciliations if reasonable cause is found in such charges and to more timely litigation if conciliation fails.
Employers and unions would thus do well to review the list of priority areas and be sure their compliance programs are up-to-date regarding these issues. Lawyers representing clients should also be aware that if a client has a meritorious claim in one of these areas, that claim will be getting focused attention.
But the list does NOT mean the agency will be focused only on these issues.
The SEP also reaffirms the agency’s existing Priority Charge Handling Procedures (PCHP). PCHP provides that a meritorious charge of egregious discrimination will get priority attention – regardless of whether the charge concerns an issue that is on the agency’s substantive priority list.
The dual message for employers and unions should thus be clear:
1) Review your compliance programs in the six priority areas noted above to make sure they are up to date regarding these issues.
2) Make sure you have a workplace that is free of any type of discrimination because if a potential charging party comes to the EEOC with an egregious case of discrimination, the agency will give it focused attention.
The single message for applicants and employees should also be clear: the EEOC will be focused, strategic, and effective.
B) An Active and Engaged Commission
In 1996, the Commission delegated its significant authority to commence litigation to its General Counsel and Regional Attorneys under a set of criteria outlined in its National Enforcement Plan (NEP). Delegation of authority was then, and remains now, an essential mechanism for carrying out the agency’s enforcement responsibilities. But it is only when delegation is paired with direction and accountability that good governance results.
In 2012, upon reviewing the sixteen years of delegation, a majority of the Commission through the SEP recognized the crucial role that delegation played in shaping the EEOC’s vigorous litigation program. But the direction and accountability that makes delegation good governance needed some updating.
First, while the original criteria for cases requiring prior Commission approval still stands, the SEP now requires that the Commission see a minimum of one case from each district.
Second, the SEP retains the accountability mechanism that the Commission put in place in 1996 – a quarterly report from the General Counsel on how delegated authority is exercised – but revitalizes it by requiring formal quarterly meetings on delegation.
In addition, through regulations, the Commission has delegated its authority in investigations and conciliations to its District Directors and its authority in providing remedial relief in the federal sector to its Office of Federal Operations. The SEP now establishes a new quarterly meeting for the Office of Field Programs to report on important investigations and conciliations and the Office of Federal Operations to report on significant rulings by Administrative Judges.
Finally, the SEP requires a new set of multi-year planning documents. I know these might raise a yawn from some readers, but speaking from inside the agency—these planning documents can be very helpful. For the first time, the agency will have a national, multi-year communications, outreach and education plan, and a multi-year plan for updating its subregulatory guidance. And the Commission will vote on a new multi-year research plan, placing the agency at the forefront of proactive research and analysis.
C) A Coherent and Vigorous Federal Sector Program
Congress has created an internal grievance procedure for federal applicants and employees that is in addition to, and separate from, such individuals’ private right of action in court. Under this internal system, the Commission has the right to order remedial relief for applicants and employees if it finds that a federal agency has engaged in discrimination.
In developing the SEP, the Commission heard from various stakeholders concerned with the disparate parts of the federal sector program. The SEP now provides that the Commission will vote in 2013 on a plan to establish a coherent structure for its federal sector work. That is a good thing.
* * *
Finally, for those who believe the SEP inappropriately elevates enforcement over education or improperly reinforces an “integrated” system of enforcement, I have only this to say: read the statute. Congress empowered the Commission to prevent any person from engaging in any unlawful employment practice “as hereinafter provided.” As the statute then provides, the means by which the Commission is to prevent unlawful employment practices is by investigating charges, attempting voluntary conciliation in charges where there is reasonable cause to believe discrimination has occurred, and litigating if conciliation fails. There is only one Commission on whom these obligations are placed, which is why the Supreme Court underscored the importance of the “integrated, multi-step enforcement procedure” established by the statute. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359-60 (1977). In addition, while Congress expects the EEOC to engage in education and technical assistance (as those activities are provided for elsewhere in the statute), those are not the primary responsibilities placed on us by Congress.
The EEOC’s SEP for 2013-1016 is a dynamic document that has the potential to do great good. I recommend reading it!
Chai R. Feldblum is one of the Commissioners of the Equal Employment Opportunity Commission (EEOC), a five-person Commission charged with enforcing employment anti-discrimination laws in the United States. Prior to her appointment to the EEOC, Chai Feldblum was a Professor of Law at the Georgetown University Law Center from 1991-2009. She has played a leading role in developing legislation to advance disability rights, LGBT rights, and workplace flexibility. The opinions expressed in this post are those of Commissioner Feldblum alone and do not reflect the opinions of the EEOC, the Federal Government, or any individual attorney. The opinions provided are for informational purposes only and are not for the purpose of providing legal advice.