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Archive for the ‘Wage and Hour’ Category

Dairy workers call on Ben and Jerry’s to give them better hours and fair wages

Friday, April 7th, 2017

This week, dairy workers are using an annual ice cream giveaway day by Ben and Jerry’s to bring awareness to the long, hard hours and low wages that many in the industry face.

In the state of Vermont and across the country, dairy workers and supporters of migrant farmworkers rallied outside the ice cream company’s storefronts on Tuesday to call attention to what they say are human rights abuses in the dairy supply chain.

Migrant workers called on Ben and Jerry’s—a company known for its progressive values—to implement the “Milk with Dignity” program as part of an agreement the company signed in 2015 to ensure that the cooperatives supplying the milk would improve the quality of life for migrant workers, such as providing a weekly day off, improving health and safety conditions, and alleviating overcrowded housing issues, among other labor conditions.

Two years out, Ben and Jerry’s has yet to implement the initiative despite sourcing its milk from cooperatives that may not care about the abuses of dairy workers. The ice cream company also placed partial blame on the advocacy group Migrant Justice for being slow to finalize the draft agreement.

“We’ve been working diligently with them since then on the details of how to successfully operationalize the program, which still needs finalizing,” a recent Ben and Jerry’s statement read. “We strongly support the goals of Milk with Dignity and believe that a worker led program is the best way to protect the rights and dignity of the workers on Vermont’s dairy farms. We remain committed to the agreement we signed and are continuing to work towards a successful conclusion with Migrant Justice.”

Thelma Gomez, a Migrant Justice member, is one of many Vermont dairy workers who want to see better conditions for people in their industry. Her husband, who works on a dairy farm that sells to the St. Albans Cooperative Creamery, which Ben and Jerry’s buys from, has worked seven days a week for the past two years because he doesn’t have any days off from work. As a result, he has missed out on crucial life milestones of their twin three-year-old daughters.

Gomez’s husband is far from alone. According to a 2014 survey of 172 dairy farmworkers across the state of Vermont, 40 percent of workers said they didn’t get weekly days off. Another 40 percent said they weren’t paid the Vermont state minimum wage; farmworkers aren’t covered by federal and most states’ wage laws. And 30 percent of workers reported overcrowded housing.

The dairy industry has come to rely on undocumented immigrant labor partly because Americans don’t want to do the work, but also because agricultural visas only cover seasonal work, which excludes the year-round dairy work process. As a result, some of the 1,500 immigrant dairy workforce in Vermont are exploited by employers to conduct harsh labor.

“These are undocumented workers who are filling this labor need because farms in Vermont have had to grow and consolidate in order to deal with the fluctuating prices in the industry,” Will Lambeck, a staff member with the Migrant Justice, told ThinkProgress. “[Farms] are growing but they’re still relying on cheap labor to get the job done, relying on workers who will work 60, 70, 80 hours a week without breaks, without days off, for what’s often pay below minimum wage.”

“Those are, by and large, undocumented workers,” Lambeck added.

Advocate Enrique “Kike” Balcazar (pronounced “Kee-kay”), a 24-year-old Mexican immigrant, helped establish the “Milk with Dignity” program at Migrant Justice because he wanted to change the 60-to-80 hour work weeks that he regularly faced. Most recently, he made national news after the U.S. Immigration and Customs Enforcement (ICE) agency detained him as he was leaving the Migrant Justice office. Balcazar has since been released on bail and is now awaiting a hearing before an immigration judge.

Though Lambeck would not comment on Balcazar’s immigration status, he believes ICE agents may have targeted Balcazar because he is a prominent organizer and frequently shows up for immigrant rights events.

The Trump administration’s harsh immigration policies have broadened enforcement priorities and empowered ICE agents to cast a wider net. Lambeck said he believes that the recent detention of Balcazar along with two other Vermont dairy workers was an intentional tactic to force immigrants to continue feeling “persecuted” and “precarious.”

“What ICE and the federal government wants, isn’t to deport every single immigrant in the country because they know that this country needs the labor of immigrant workers,” Lambeck said. “What the motivation of these sorts of attacks is and the federal policy behind them, is to create a class of that are so persecuted and so precarious in their status in this country that they accept conditions that they otherwise would not.”

This blog was originally posted on ThinkProgress on April 4, 2017. Reprinted with permission.

Esther Yu-Hsi Lee is the Immigration Reporter for ThinkProgress. She received her B.A. in Psychology and Middle East and Islamic Studies and a M.A. in Psychology from New York University. A Deferred Action for Childhood Arrivals (DACA) beneficiary, Esther is passionate about immigration issues from all sides of the debate. She is also a White House Champion of Change recipient. Esther is originally from Los Angeles, CA. Contact her at EYLEE@thinkprogress.org.

Groundbreaking Bill in Illinois Would Give Temp Workers Equal Pay and Rights as Direct Hires

Monday, February 13th, 2017

Sweeping legislation introduced in the Illinois state legislature last month would dramatically improve pay, benefits and working conditions for almost a million of the state’s temp workers toiling in factories, warehouses and offices.

The Responsible Job Creation Act, sponsored by State Rep. Carol Ammons, aims to transform the largely unregulated temporary staffing industry by introducing more than 30 new worker protections, including pay equity with direct hires, enhanced safety provisions, anti-discrimination measures and protection from retaliation.

The innovative law is being pushed by the worker centers Chicago Workers’ Collaborative (CWC) and Warehouse Workers for Justice (WWJ), which say it would restore the temp industry to its original purpose of filling short-term, seasonal labor needs and recruiting new employees into direct-hire jobs.

Across Illinois, there are nearly 850,000 temp workers every year. Nationally, temp jobs are at record highs, with more than 12 million people flowing through the industry per year.

“Instead of temps just replacing people who are sick or coming during periods of higher production, they’re actually becoming a permanent staffing option,” says CWC executive director Tim Bell. “There’s nothing ‘temporary’ about it.”

Mark Meinster, executive director of WWJ, says there has been “an explosion” of temp workers in recent decades, especially in manufacturing and warehousing. “Those sectors are part of large, global production networks where you see hyper competition and an intense drive to lower costs. Companies can drive down labor costs by using temp agencies.”

CWC activist Freddy Amador worked at Cornfields Inc., in Waukegan, for five years. He tells In These Times the company’s direct hires start off making at least $16 an hour, but later get raises amounting to $21 an hour. As a temp, however, Amador was only making $11 an hour after five years on the job.

“As a temp worker, you don’t have vacation days, sick days, paid holidays”—all of which are available to direct hires, Amador says.

In These Times reached out to Cornfields to comment on this story. It did not immediately respond.

“Once a company is using a temp agency, it no longer has to worry about health insurance, pension liability, workers’ comp, payroll and human resources costs,” Meinster explains. “It also doesn’t have to worry about liability for workplace accidents, wage theft, or discrimination because, effectively under the law, the temp agency is the employer of record.”

This arrangement drives down standards at blue-collar workplaces, Bell says. “The company itself doesn’t have to worry about safety conditions because these workers aren’t going to cost them any money if they’re injured.”

“The safety for temp workers is really bad,” Amador says. “Temp agencies send people to do a job, but nobody trains them. Sometimes temp workers are using equipment they don’t know how to use, and they’re just guessing how to use it. I’ve seen many accidents.”

Under the new bill, temps like Amador would receive the same pay, benefits and protections as direct hires.

“This is landmark legislation,” Bell says. “There’s nothing like it in the United States.”

Last year, the Center for Investigative Reporting found a pattern of systemic racial and gender discrimination in the temp industry nationwide. Industry whistleblowers allege that African-American workers are routinely passed over for jobs in favor of Latinos, who employers consider to be more exploitable.

Discrimination can be hard to prove because staffing agencies aren’t required to record or report the demographics of who comes in looking for work. As Bell explains, applications often aren’t even filled out in the temp industry, but rather “someone just shows up to go to a job.”

The new bill would require temp agencies to be more transparent about their hiring practices by recording the race, gender and ethnicity of applicants and reporting that information to the state.

Furthermore, the bill includes an anti-retaliation provision that says if temp workers are fired or disciplined after asserting their legal rights, the burden is on the company and temp agency to prove that it was not done in retaliation.

“There’s this fundamental imbalance in the labor market that leads to a whole range of abuses and then non-enforcement of basic labor rights,” Meinster explains. “The changes we’re proposing in this bill get at addressing that structural issue.”

To craft the bill and get it introduced, CWC and WWJ received research and communications support from Raise the Floor Alliance, a coalition of eight Chicago worker centers. The Illinois AFL-CIO, National Economic and Social Rights Initiative, National Employment Law Project, Latino Policy Forum and Rainbow Push Coalition are among the legislation’s other supporters.

Though the Illinois government is still paralyzed by an unprecedented budget stalemate between the Republican governor and Democratic legislature, organizers are optimistic about the bill’s prospects.

“There’s potential for huge movement around this bill,” Bell says, citing the popularity of the presidential campaigns of Bernie Sanders and Donald Trump, which both touched on the theme of economic insecurity. While Trump focuses on jobs fleeing the country, Bell notes that “jobs here in this country have been downgraded.”

“We need to be talking about job quality, not only ‘more jobs.’ Both are important,” Meinster says. He believes existing temp jobs “could and should be good, permanent, full-time, direct-hire, living wage jobs with stability, respect and benefits.”

The author has worked with WWJ in the past on issues related to the temp industry.

This blog originally appeared at Inthesetimes.com on February 9, 2017. Reprinted with permission.

Jeff Schuhrke is a Working In These Times contributor based in Chicago. He has a Master’s in Labor Studies from UMass Amherst and is currently pursuing a Ph.D. in labor history at the University of Illinois at Chicago. He was a summer 2013 editorial intern at In These Times. Follow him on Twitter: @JeffSchuhrke.

Delivery Drivers Sue Amazon Over Misclassification, Failure to Pay Overtime and the Minimum Wage

Tuesday, December 20th, 2016

With wage and hour lawsuits becoming increasingly common across the country, there was little reason for the lawyers at Amazon.com’s Seattle headquarters to be surprised when one landed on their doorstep recently. But they may have been concerned to learn that their newest legal adversary is “Sledgehammer Shannon” Liss-Riordan, a Boston attorney who gained legal fame by beating corporate giants like FedEx and Starbucks in just these kinds of contests.

The new lawsuit against Amazon is similar to one of Liss-Riordan’s best known cases—a suit against FedEx that charged the company was misclassifying delivery drivers as independent contractors when the workers were, as a matter of law, regular employees. Liss-Riordan won that fight and, this year, FedEx announced that it would give up on a series of related legal fights and pay $240 million to some 12,000 drivers in 20 states.

Liss-Riordan took the fight to Amazon in a suit filed October 4 in the U.S. District Court for the Western District of Washington. It charges Amazon and Amazon Logistics Inc. with violating the minimum wage law in Seattle, state labor law in Washington and the federal Fair Labor Standards Act (FLSA).

Liss-Riordan explains that Amazon is experimenting with a delivery system where the company contracts with individuals to use their own cars to pick up parcels at Amazon warehouses and deliver them to local customers. The drivers typically sign up for a specific work shift and are paid an hourly wage. They are not compensated, however, for expenses like gasoline, car maintenance, telephone calls, or other incidentals. When subtracting these expenses, drivers often end up earning less than the minimum wage and are denied overtime pay, she says.

That description of delivery methods was echoed by Stacy Mitchell, co-director of the advocacy group Institute for Local Self-Reliance. Along with co-author Olivia LaVecchia, Mitchell has just completed a major study of Amazon’s business practices that warns that the giant corporation is killing good jobs in local economies as it seeks to monopolize different sectors of the retail business.

“Amazon has substantially expanded its warehouses in recent years and is experimenting with the so-called ‘last mile’ of the delivery system. They are increasingly using on-demand drivers, and also regional couriers, to move goods,” Mitchell says. “In the past, this sort of ‘last mile’ delivery was typically done by the U.S. Postal Service or United Parcel Service. USPS and UPS jobs are good-paying union jobs, and Amazon is undermining these with its gig economy model.”

In These Times reached out to Amazon to comment on the lawsuit. Spokesman Jim Billimoria provided the following response:

“The small and medium sized businesses that partner with Amazon Logistics have their own employees and are required to abide by applicable laws and Amazon’s Supplier Code of Conduct, which focuses on compensation, benefits, and appropriate working hours. We investigate any claim that a provider isn’t complying with these obligations.”

Liss-Riordan says this sort of a defense is typical of large corporations, many of which have lost wage and hour lawsuits in court.

“It’s not what you say that counts, it’s what you do,” she said. “We’ve been able to demonstrate, time and time again, that a lot of these corporations just don’t live up to their stated policies when it comes to real-life employment practices on the ground. That’s why you see more and more of these suits.”

Indeed, a 2015 report from the law firm of Seyfarth Shaw LLP described an “onslaught” of litigation resulting in a record high number of federally-filed wage and hour cases in 2015. According to the firm, there were 8,781 such cases in 2015, compared to only 1,935 in 2000.

Asked about her nickname “Sledgehammer Shannon,” Liss-Riordan laughed out loud.

“It’s sort of silly. Mother Jones magazine did an article last year about a case I have against Uber, and I get a lot of jokes. I don’t care. The fact is, we will take on cases like this and fight them for 10 years if we have to.”

This blog originally appeared at Inthesetimes.com on December 12, 2016. Reprinted with permission.

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.

Domestic Workers in Ill. Win Bill of Rights: “Years of Organizing Have Finally Paid Off”

Monday, August 22nd, 2016

Domestic workers in Illinois are celebrating a new bill of rights.

Gov. Bruce Rauner signed the bill into law last week, capping a 5-year campaign and making Illinois the 7th state to adopt such a protection.

Sponsored by Sen. Ira Silverstein (D-8th District) in the Senate and Rep. Elizabeth Hernandez (D-24th District) in the House, the Illinois Domestic Workers Bill of Rights gives nannies, housecleaners, homecare workers and other domestic workers a minimum wage, protection from discrimination and sexual harassment and one day of rest every seven days for workers employed by one employer for at least 20 hours a week.

The law amends four other Illinois state laws—the Minimum Wage Law, the Illinois Human Rights Act, the One Day Rest in Seven Act and the Wages of Women and Minors Act—to include domestic workers.

Over the past five years, the Illinois Domestic Workers Coalition has campaigned to demand that domestic workers be provided with the same workplace protections that others have had for decades. Members gathered Tuesday at the Sargent Shriver National Center on Poverty Law in Chicago to celebrate.

“Finally, some of the hardest working people in the state of Illinois will receive the dignity and respect they deserve from their work environment,” said Rep. Hernandez.

Magdalena Zylinska, a domestic worker and board member of Arise Chicago, spoke about how demanding domestic work is.

“I have struggled to get by from low wages, wage theft and disrespect on the job,” Zylinska said. “But today I am here to celebrate that our years of organizing have finally paid off.”

In 2010, New York became the first state to sign such a bill into law. Illinois is now the seventh, joining Massachusetts, California, Oregon, Hawaii and Connecticut. While domestic workers have achieved victory in those states, the fight continues for a national bill of rights for domestic workers.

Worldwide, 90 percent of domestic workers—the vast majority of whom are women—do not have access to any kind of social security coverage, according to the International Labour Organization. In the United States, an estimated 95 percent of domestic workers are female, foreign born and/ or persons of color. They frequently lack protections and face near constant adversity.

“Women are an essential pillar of our society and our families, as you all have seen. The House listened to us. The Senate listened to us, and now the governor has listened to us,” said Maria Esther Bolaños, a domestic worker and leader from the Latino Union of Chicago.

She recalled days where she worked 12 hours and got paid just $12.00.

Grace Padao of AFIRE Chicago echoed Bolaños’ statements with struggles of her own, describing days of being isolated and alone in homes that were not her own, working seven days a week to provide for her family.

“From this day forward, domestic workers in Illinois will never have to face the conditions that I did,” Padao said.

In 2010, New York became the first state to sign such a bill into law. Illinois is now the seventh, joining Massachusetts, California, Oregon, Hawaii and Connecticut. (Parker Asmann)

This article was originally posted at Inthesetimes.com on August 16, 2016. Reprinted with permission.

Parker Asmann is a Summer 2016 Editorial Intern at In These Times. He is an Editorial Board Member for the Chicago-based publication El BeiSMan as well as a regular contributor to The Yucatan Times located in Merida, Mexico. He graduated from DePaul University in 2015 with degrees in journalism and Spanish, as well as a minor in Latin American Studies.

 

New Survey Reports Uber Drivers Are Investing Big in the Company But Get Little Stability

Friday, June 3rd, 2016

Don Creery had been driving for Uber in Seattle for several months when in May 2014 the clutch wore out on his Kia Soul. A former music teacher, Creery had enjoyed his work for Uber and said he made enough to live comfortably. So, anticipating much more driving in the future, he took out a $10,000 loan to purchase a brand new Soul with an automatic transmission—a smart investment, he judged, for his career as an Uber driver.

“I never go into debt,” Creery told me, “but this seemed totally logical.”

Initially, everything went according to plan. But soon, Uber would cut the rates it charges customers for rides, effectively slashing the wages of its drivers. The move triggered protests and caused Creery to suddenly second-guess the wisdom of his choice to take out the loan.

“It all of a sudden went from being a good decision to being a bad one,” Creery says. “Before that rate cut, it was a middle-class job as far as money goes, and now it’s not. It’s a lower-class job or in some instances a desperate-class job.

Creery’s experience is not entirely unique, according to a survey of hundreds of Uber Drivers across the country that is being released today. Conducted by the Partnership for Working Families and Coworker.org, an online platform meant to generate worker campaigns, the survey polled more than 300 Uber drivers between March and May of this year and found that a majority of them have, like Creery, made significant personal investments for their future with the service. Fifty-seven percent of Uber drivers have “have bought, leased, or made substantial investments in vehicles to drive for Uber,” according to the report.

Despite having taken on risk to maintain their freelance career with Uber, only 23 percent of the drivers polled see driving for the ride-hailing app as a source of stable income.

“Anecdotally both in and outside the survey, we have heard from drivers who were struggling to make payments on cars that they have purchased to drive with Uber,” says Mariah Montgomery, the Future of Work Strategist for The Partnership for Working Families. “These drivers are investing substantial funds to be able to drive.”

These results appear in tension with survey data that Uber has touted as proving that drivers most often do not rely on the service as their only source of income but see it instead as a convenient, highly flexible way to supplement their existing work. “Uber Fits Around Drivers’ Lives, Not The Other Way Around,” the company declared last year, referring to a survey that states that 88 percent of Uber drivers polled started “driving for Uber because it fits their life well, not because it was their only option.”

Today’s survey, which included drivers who had previously used coworker.org, found that the vast majority (80 percent) of drivers polled identified their wages as a top priority and support raising fares. In recent months, Uber has slashed fares in cities across the country, arguing that the fee reduction will actually benefit workers due to a resulting increase in customer demand. “This survey suggests that drivers don’t necessarily agree,” says Montgomery.

Perhaps in response to such issues, 70 percent of the surveyed Uber drivers—who are independent contractors with no shared setting to naturally meet each other—said they were interested in connecting with one another to communicate about things like maximizing earnings, sharing information and forming drivers’ associations.

In response to a request from In These Times, Uber did not comment on the study’s findings.

Today’s survey also states that it found anecdotal evidence that, after Uber’s announcement in April that it will officially condone drivers receiving tips, the freelancer respondents want the company to go further in facilitating such transactions. Namely, there is no option in the app through which customers can pay a tip via credit card. “Although the survey did not specifically ask Uber drivers about tips, many drivers wrote in that they would like an option for riders to provide tips within the app, like Lyft,” according to the report released today. “One driver wrote: ‘Please put a place [in the app] where people can tip. People want to tip me all the time but do not have cash.’”

The survey’s release coincides with a hearing today where a federal judge in San Francisco will weigh whether or not to accept a proposed settlement in one of the most high-profile legal actions drivers have brought against Uber. In April, the company agreedto pay $100 million to settle two class action lawsuits that alleged the ride-hailing service had wrongfully classified its drivers in California and Massachusetts as independent contractors and thus denied them the rights and benefits of full-employee status.

The proposed settlement infuriated some drivers and advocates, not only because of what appeared to many as a paltry sum for a company valued in the tens of billions of dollars, but also because its terms appeared to have the effect of helping cement in place Uber drivers’ status as independent contractors, the very issue many drivers have most fiercely protested.

As independent contractors, Uber drivers are responsible for paying for their own cars, vehicle repairs, tolls, gas and other inputs necessary for the job. Drivers like Creery, who also sells rides for Lyft and is a leader of an Uber driver association in Seattle, say that being on the hook for such expenses, including interest payments for auto investments, means the job hardly pays a living wage.

Drivers’ own financial borrowing to pay for their vehicles is part of what has propelled Uber’s rapid global expansion. This week, Bloomberg News published a look into Uber’s Xchange program, which offers vehicle leases at subprime rates for would-be drivers with poor credit history—people who often would not otherwise be able to drive for the company. Uber says that Xchange and other financing programs will expand its fleet by 100,000 in coming years.

The company says that Xchange offers a high degree of flexibility by allowing drivers to walk away from a lease at any point after the first month. But several Uber drivers expressed displeasure with the arrangement. One driver told Bloomberg that, like Creer, he could hardly keep up on his vehicle payments after one of Uber’s rate cuts.

“It got to the point that I would drive just to meet my payment,”the driver said. “If you were short on your payment for a week it would roll onto the payment for next week. It starts adding up.”

This blog was originally published on inthesetimes.com on June 2, 2016.  Reprinted with permission.

Spencer Woodman is a journalist based in New York. He has written on labor for The Nation and The Guardian. You can follow him on Twitter at@spencerwoodman and reach him via email atContactspencerwoodman@gmail.com

Gelernter on In re Wal-Mart Wage and Hour Litigation FAA Case

Sunday, January 26th, 2014

Paul SecundaThanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.

The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel.  The Ninth Circuit’s summarizes the case thusly:

[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable.

Here is Lise’s commentary:

The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA.  The Ninth Circuit cited to a Second Circuit case that had a similar holding:

Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA.  Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).

This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.

Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.

This article was originally printed on Workplace Prof Blog on January 20, 2014.  Reprinted with permission.

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

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