Outten & Golden: Empowering Employees in the Workplace

OSHA Announces Rollback of Recordkeeping Requirements

January 30th, 2019 | Jordan Barab

In its first completed rollback of a previously issued regulation in the Trump administration*, the Occupational Safety and Health Administration today announced its final recordkeeping regulation that eliminates the requirement that certain employers send in to OSHA detailed information about injuries and illnesses that employers already collect.  The Office of Information and Regulatory Affairs announced that it had rushed to clear the rule last week. The full 104 page text of the new rule and the preamble can be found here.

The main excuse OSHA uses for the rollback is “to protect worker privacy.” Ignoring the fact that employers were not required to send any confidential information to OSHA in the first place, the agency’s press release argues that

By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301.

The new rule does not affect the current requirement that employer send in to OSHA the summary of injuries and illnesses (OSHA Form 300A), although the agency makes clear that they do not intend to release the summary information to the public for at least 4 years because they allege that the data is not subject to the Freedom of Information Act which would normally require public disclosure. OSHA’s reason is that “disclosure of 300A data through FOIA may jeopardize OSHA’s enforcement efforts by enabling employers to identify industry trends and anticipate the inspection of their particular workplaces.” [emphasis added]

This is simply the business community’s attempt to ensure that the public have as little information as possible about injuries and illnesses — and why they happen — in American workplaces.

Regulatory experts have a highly technical term for such explanations: “lame.”

First, an employer’s ability to anticipate an inspection is actually a good thing because it may encourage the employer to fix unsafe conditions. Second, in previous enforcement programs using similar data, OSHA actually warns high risk employers that they are on a focused inspection list, and encourages them to use OSHA’s compliance assistance resources to eliminate unsafe conditions before they are inspected.  In other words, public disclosure of such information is actually a feature of this program, not a bug.

When this regulation was initially issued under the Obama administration, OSHA intended not just to make the information available to interested parties, but to post it on the agency’s website so that potential workers would be able to judge the relative safety of their employers, and employers could use the information to benchmark their safety record against similar employers.

OSHA received 1880 comments on the rollback proposal which was rushed through OSHA and OIRA to ensure its completion before a possibly unfavorable court decision.

Will the Roll-back Regulation Stand Up in Court?

Corks are undoubtedly popping at the Chamber of Commerce this morning, although they wanted OSHA to repeal the entire regulation, including collection of the 300A summary and the language prohibiting employers from retaliating against workers for reporting injuries and illnesses.

Their celebration may be short lived, however. Just as night follows day, lawsuits will follow this announcement.  And statistically, a lawsuit is likely to be successful in this administration. The New York Times today published an article today detailing how the Trump administration has chronically ignored the Administrative Procedure Act which governs agency rulemaking. The article notes that:

An analysis by the Institute for Policy Integrity at New York University School of Law shows that more than 90 percent of court challenges to major Trump deregulatory actions have been successful so far. By the institute’s count, 30 big rules have been challenged, and the courts have found for the litigants 28 times…In a typical administration, the government wins on such challenges around 70 percent of the time, said Richard Revesz, a law professor at N.Y.U. who specializes in environmental law. “This is truly aberrational,” he said.

Information is Power

The reasoning used by OSHA seems similar to the weak reasoning used in the agency’s proposal. (You can read my analysis of the proposal here.)

But in short, what we have here is the business community’s continuing effort to ensure that the public has as little information as possible about workplace injuries and illnesses — and why they happen — in American workplaces.  Information is power. And the more power that the Trump administration and its business supporters can keep from workers and the public, the better.

This blog was originally published at Confined Space on January 24, 2019. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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Thousands of Virginia teachers march to state capitol demanding more funding, better salaries

January 29th, 2019 | Casey Quinlan

Thousands of Virginia teachers left their classrooms and rallied in Richmond on Monday to demand more education funding and higher salaries. Teachers gathered in front of the state capitol building, just as their fellow educators did during strikes and rallies last year in West Virginia, Kentucky, Arizona, Colorado, Oklahoma, and North Carolina.

Virginia Educators United (VEU), which organized Monday’s rally, wants schools to have adequate support staff, such as nurses and social workers, competitive wages for support staff, improved school infrastructure, and better recruitment and retention of high-quality teachers. VEU encouraged teachers to take a personal day to attend the rally.

“I just think it’s one of those things where we have been waiting patiently and we always say, the [Great Recession] this, the recession that. That was 2008; we don’t have time to wait anymore so we need to fund education now,” Kevin Hickerson, president of the Fairfax Education Association, told ThinkProgress. 

Hickerson said that in Fairfax, like many other school districts across the country, it’s common for teachers to be working two or three jobs in order to make ends meet. The district needs to take additional steps to ensure support personnel, such as custodians, bus drivers, and cafeteria workers, can afford to live in the communities in which they work.

In an analysis of states’ funding formulas by the Education Law Center and Rutgers University’s Graduate School of Education, Virginia received a grade of “F” on its funding distribution. Virginia’s average teacher salary is slightly less than average at $56,861, compared to $58,353, but in the Richmond area, the average teacher salary is just $51,064, state data shows. According to the National Education Association, Virginia ranks 34th in the nation in average teacher pay.

Salaries aren’t the only reason teachers decided to protest; the schools themselves desperately need improvements, according to Hickerson.

“Our infrastructure needs a lot of upgrades and improvements. When you don’t take care of things now in terms of buildings, they just cost more later down the line. We need to upgrade our buildings and we need to get out of trailers,” he said. “We have close to a thousand trailers here in Fairfax County and I don’t want my daughter going into a trailer to learn and I don’t want other kids to also have that experience.”

Hickerson added that there are mold problems, heating issues, and leaks in trailers and on top of that, trailers may not be the safest place for students to learn.

Gov. Ralph Northam (D) proposed a 5 percent pay increase for teachers and $268.7 million in new money for public schools in December. Republican leaders in the house of delegates have said they support a 5 percent pay raise. The Republican-controlled state senate has said it wants more flexibility for how local governments spend increased education funding.

When asked why Virginia teachers aren’t ready for a statewide strike like other states, Hickerson said that in addition to legal issues teachers may encounter due to public employee strikes being prohibited, the upcoming state elections present an opportunity to make change.

“I think we have a golden opportunity this election season with both our chambers up for bid in the house and the senate. I think we have a great opportunity to get public education-friendly candidates into those seats,” he said. “I think there is a good chance we can flip the house and the senate and bring public education to the forefront where we don’t necessarily need those strikes and collective action that makes us remove ourselves from our job. That doesn’t mean we stop lobbying or the momentum we started but at the same time that’s where we need to be putting our time and effort right now.”

Teachers unions haven’t dialed back their concerns about school funding after the 2018 statewide strikes. In Los Angeles, teachers went on strike for a week and won major concessions. Some of the improvements include a 50 percent reduction in standardized testing, turning 30 schools into community schools, and ensuring that schools have nurses working five days a week.

This month, Denver teachers voted to go on strike after more than a year of negotiations. Teachers there want to change their performance-based compensation system, which they say is confusing and limits opportunities for some teachers to improve their pay.

There are also ongoing discussions of work stoppages in West Virginia and Oakland, California. In West Virginia, the state senate advanced education legislation that embraces school choice, something teachers unions have opposed. West Virginia Education Association President Dale Lee told the press, “everything is on the table” when asked if another teacher walkout would happen in response to the legislation.

In Oakland, Ismael Armendariz, vice president of the Oakland Education Association, said the L.A. strike has energized teachers, who have been working without a contract since 2017 and are asking for a 12 percent pay increase over three years.

“One thing that resonated with our members is that when you fight, you win,” Armendariz said.

This article was originally published at ThinkProgress on January 28, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

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The longest shutdown in U.S. history will have lingering consequences for federal workers

January 28th, 2019 | Casey Quinlan

Though President Donald Trump and Congress finally brokered a deal to end the longest federal government shutdown in U.S. history, members of the federal workforce are still left dealing with the financial pain it caused.

The partial shutdown stretched on for 35 days, depriving government employees of two paychecks. Although President Donald Trump said on Friday that federal workers will receive back pay “as soon as possible,” about 800,000 workers — many of whom have had to take out loans and find part-time work — will have to wait late into next week to receive their pay. Contract workers aren’t eligible for back pay at all.

Randy Erwin, the president of the National Federation of Federal Employees, said in a statement that the record-breaking shutdown “caused irreparable harm to working families across the country,” calling it a “shameful chapter in American history.”

“Federal workers and others have resorted to selling their possessions, and many have defaulted on loans and mortgages in order to afford heat, medicine, and food,” Erwin said.

The 35-day partial government shutdown exposed the reality that many Americans are living in financially precarious situations.

Seventy-eight percent of full-time workers say they live paycheck-to-paycheck, according to a 2017 CareerBuilder report. And 40 percent of adults say they would struggle to take on an unexpected $400 expense, reporting they would be forced to sell their belongings, borrow money, or forgo paying the bill at all, a 2017 Federal Reserve report found.

The people who make up the federal workforce often face specific financial constraints.

Federal worker salaries on average fall behind the salaries of their private sector counterparts by 31.86 percent, according to a 2018 Federal Salary Council report. In an executive order issued in December, Trump said pay rates for federal civilian employees would remain stagnant in 2019, claiming that approving a pay raise for federal workers would be “inappropriate” given the financial challenges facing the government.

The federal contractors who won’t receive back pay to compensate them for their missed hours of work are particularly vulnerable. Some estimates find that 40 percent of the entire government workforce is made up of contract workers, totaling 3.7 million people.

“I think [contractors] get lost by the wayside in the concentration on the 800,000 people who are direct employees of the federal government,” said Ken, a contractor for the Federal Aviation Administration who is based in New Jersey, during a Wednesday protest against the shutdown at the Hart Senate Building. 

Sen. Tina Smith (D-MN) — along with Sens. Mark Warner (D-VA), Chris Van Hollen (D-MD), Sherrod Brown (D-OH), Ben Cardin (D-MD) and Tim Kaine (D-VA) — introduced legislation earlier this month that would require federal agencies to work with contractors’ companies to secure back pay for those workers.

While the government was partially shuttered, unpaid workers still needed to figure out what to do about their bills. This month, unpaid federal workers owed about $438 million in mortgage and rent payments — which breaks down to $189 million in rent payments and $249 in mortgage payments — according to a report from the real-estate firm Zillow.

Federal workers told ThinkProgress that the shutdown forced them to take out loans, file for unemployment, take on part-time work, and even consider leaving town. Some of the choices they made over the past month may have lasting financial repercussions.

Patricia Floyd-Hicks, a furloughed worker for the Equal Employment Opportunity Commission (EEOC) who attended Wednesday’s protest at the Hart Senate Building, told ThinkProgress that she had to dip into her savings as she prepares to retire.

Federal workers also worry that the shutdown could damage their credit scores, since workers only need to miss one credit card payment to have points taken off their credit score. Credit-scoring experts told CBSNews that it isn’t easy for a company like FICO to adjust its model in response to an event like the shutdown.

Although the government has reopened for at least the next three weeks, it’s unclear what will happen once lawmakers reach the February 15 deadline for the short-term spending bills that passed Friday. The uncertainty and financial instability is too much for some employees.

Several federal workers told ThinkProgress they are seriously considering whether they should leave the federal government altogether. According to research from the employment-related search engine Indeed, they fit into a bigger trend, as furloughed workers have been searching for jobs at an increased rate during the shutdown.

Indeed’s director of economic research, Martha Gimbel, compared job searches on the Indeed platform among employees in agencies across the government. She found that TSA workers’ job searches were up about 30 percent compared to the same time last year, while IRS workers’ job searches rose about 50 percent. Department of Health and Human Services workers’ searches were up 80 percent over this period last January.

The government watchdog group National Taxpayer Advocate estimates it will take about a year for the IRS’ operations to return to normal, according to the Washington Post — and one of the reasons for the delay, the group says, is that many of the agency’s workers have already decided to leave for the private sector.

Financial struggles can affect people’s mental health in serious ways, as research has shown. University of Southampton researchers published a 2013 report finding a significant relationship between debt and mental disorder, including depression. Findings from a 2016 study on U.S. households “suggest that short-term debt may have an adverse influence on psychological wellbeing.”

Many federal workers have now experienced this strain firsthand. When President Donald Trump threatened to keep the government partially shut down for months or even years, Jordan — who works for the U.S. Department for Housing and Urban Development, and who asked to withhold their full name and gender out of fear of retaliation for speaking to the press — said the “real shock” of hearing this remark “led me to some crazy thoughts.”

“There is a bit of fear that raged through my body,” Jordan said.

This article was originally published at ThinkProgress on January 26, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

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Los Angeles Teachers Stay Strong; Win Improvements

January 25th, 2019 | AFL-CIO Now

Less than a month into 2019, the teachers of Los Angeles have proven that last year’s wave of collective action isn’t quieting down. After taking to the streets in a strike that has captured the country’s imagination, members of United Teachers Los Angeles (UTLA) are returning to classrooms today after overwhelmingly approving a paradigm-shifting contract that delivers on key demands.

For six days, more than 30,000 UTLA teachers went on strike to shine a light on the daily realities of a neglected and underfunded public school system. They demanded better, and by standing together, they won it. Here are just a few critical improvements in UTLA’s new contract:

  • A much-deserved 6% pay raise with no contingencies;
  • A nurse in every school five days a week;
  • A teacher librarian in every secondary school five days a week;
  • Hard caps on class size that will go into effect immediately in 2019–2020, with additional improvements every year after;
  • A commitment to reduce testing by 50%;
  • Hard caps on special education caseloads; and
  • A clear pathway to cap charter schools.

“For too long teachers have lived with a hard truth to tell—that for years our students were being starved of the resources they need,” said UTLA President Alex Caputo-Pearl following the vote. “Our expectations were fundamentally raised by this strike. Together, we said we deserve better, our students deserve better. We must keep our expectations high and not let go of this moment, because the next struggle is right around the corner.”

This blog was originally published by the AFL-CIO on January 23, 2019. Reprinted with permission. 

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L.A. Teachers on What Was Won—And Which Battles Are Next

January 24th, 2019 | Julianne Tveten

Following a six-day teachers’ strike over inadequate public-school funding, United Teachers Los Angeles (UTLA) and the Los Angeles Unified School District (LAUSD) reached a tentative agreement Tuesday. While tallies haven’t yet been released, UTLA has confirmed that teachers voted in favor of the contract and, as of Wednesday, have returned to their classrooms.

The agreement, which was preceded by a nearly 21-month bargaining period, reverses some of the trends the union was protesting, including bloated class sizes, insufficient staffing of nurses and counselors, excessive standardized testing and a lack of resources for special education. (UTLA’s protests, including the strike, were largely the product of a reform movement among educational unions nationwide.)

It also calls for a greater reckoning with charter schools: publicly funded, privately operated schools boosted primarily by wealthy financiers and executives. UTLA members rebuke these schools for siphoning funding from public schools and view a pro-charter district agenda as the cause of the aforementioned problems.

The new contract would restrict school privatization, calling on California to establish a cap on charter schools. It also states that Los Angeles mayor Eric Garcetti will endorse the Schools and Communities First ballot initiative, which will ostensibly redirect $11 billion per year to California schools, community colleges, health clinics and other local institutions.

In These Times spoke to five teachers from five different LAUSD schools. While most of them contend that more could have been won, these rank-and-file members overwhelmingly consider the new terms an improvement and a testament to the power of strikes.

“I am pleased with the agreement for several reasons,” second-grade teacher and rank-and-file UTLA member Traci Rustin told In These Times. “I think we started a conversation about charter schools among those members of the community and UTLA who had not previously given it much thought.”

Rustin and some other teachers, however, found the vote bittersweet, arguing that while they’re eager to return to work, the proposed terms should have included more aggressive changes. The agreement prevents the district from “unilaterally ignor[ing]” all class sizes and promises a gradual reduction of class size—which routinely exceeds 40—over the next four years, imposing maximums of 39 students for English and math courses in secondary schools. While the change marks an improvement, some remain frustrated.

“There are classes with 45 students in them. Do we really think that 41 students, three years from now will be acceptable? Absolutely not!” a kindergarten teacher in West Los Angeles who wished to remain anonymous told In These Times. “I am glad that the school district cannot come in and change that on a whim, like they were initially trying to do. … But the reduction isn’t enough.”

The 2019-2020 school year will see additional full-time teacher librarians and counselors for secondary schools, and nurses for all schools. By the 2020-2021 school year, theoretically, each school will be equipped with one nurse, five days a week. In the 2014-2015 school year, California ranked below all other states in student-to-librarian ratios, while nearly 40 percent of LAUSD schools were staffed with a nurse only one day a week, according to UTLA.

Still, the proposed staff-to-student ratios continue to worry some. “I don’t think that having a ratio of 500 students to one counselor is acceptable,” said the kindergarten teacher. “Yes, the district is giving us 17 more counselors to meet that ratio, finally, but a 500 to 1 ratio for mental health is not showing our students that we’re there for them.”

“It’s a little disheartening to realize that we’ve gained no ground on school psychologists and librarians for elementary schools,” added fourth-grade teacher Anavelia Valencia.

To address the issue of rampant standardized testing, UTLA has also vowed to establish a committee with LAUSD to cut testing in half—a move teachers overwhelmingly approve. Teachers will also receive a retroactive raise of three percent for the 2017-2018 school year, as well as an additional three percent retroactive raise dating from July 1, 2018. While educators emphasize that their salaries are a low-level concern, the raises come at a time when many California teachers can scarcely afford to rent or buy a home, yet don’t qualify for public housing.

The contract also ensures a number of changes designed to bolster students’ wellbeing. Schools will curtail “random” searches of students—a practice that has elicited strong criticism for targeting and criminalizing Black, Latinx and Muslim students. Schools will also plan to replace some of their industrial environs—bungalows, asphalt—with plant life, which has been shown to have therapeutic effects. Furthermore, according to the agreement, the district will provide an attorney for immigrant families as part of an Immigrant Defense Fund initiative.

While teachers find many of these changes promising, the circumstances surrounding voting were somewhat contentious. Because UTLA teachers learned of the contract the same day they were expected to vote, “several members were upset about voting so quickly,” said Rustin. “I wouldn’t have minded having an extra day to vote, but I also understand the need to return to work ASAP.” Relatedly, some organized impromptu meetings to discuss the contract and the merits of voting either way.

Whatever the outcome of the new terms, teachers agree much more work remains on the local, state and national levels—especially as educators in Denver and Oakland are preparing for potential strikes in response to public-school funding issues—and are returning to the classroom intent on keeping the struggle alive. In the meantime, they look forward to a fairer—and more galvanized—labor landscape. “The future of public education depends on making informed decisions about charter schools versus community schools,” said Rustin. “We were successful in calling attention to this.”

“Teachers have been beat down,” UTLA president Alex Caputo-Pearl said at a press conference on Tuesday night. “One of the things we’re most proud of is that this campaign… had our members say, ‘I deserve better.’”

This article was originally published at In These Times on January 23, 2019. Reprinted with permission. 

About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.

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Longest government shutdown in history causes record number of TSA workers to stay home

January 23rd, 2019 | ThinkProgress Staff

As the longest government shutdown in U.S. history ticks on, the Transportation Security Administration (TSA) is slowly starting to crumble.

The absence rate for TSA employees this weekend increased to a record-breaking eight percent, compared to 7.5 percent last week and just three percent this time last year, according to the Washington Post. The absences particularly impacted large hubs in Chicago, New York, Atlanta and Miami. Baltimore Washington International Airport also suffered some sever staff shortages this weekend. On Sunday, the absences topped ten percent, as many TSA workers were unable to afford to continue working without pay.

In order to keep lines moving at airports, TSA has dipped into its National Deployment Force (NDF) pool, which is normally used to help out with major events such as the Superbowl.

TSA is also doing its utmost to ensure that the public does not know the true extent of how the shutdown is affecting the agency’s ability to perform its job. In an email sent Friday obtained by CNN, the agency’s deputy assistant administrator for public affairs Jim Gregory laid out a series of talking points on how to handle inquiries about the scale of the shutdown.

“Do not offer specific call out data at your airport,” the email reads. “You can say you have experienced higher numbers of call outs but in partnership with the airport and airlines you are able to manage people and resources to ensure effective security is always maintained.”

While TSA offers national data, it does not offer details for specific airports owing to “security concerns.” This means that there could be significant variation at airports that push some higher than the eight percent absence rate recorded nationwide.

The absences have, however, trickled down to travelers, who have been forced to wait in line for much longer than normal to get through security. TSA has consistently maintained that it is screening the vast majority of passengers in 30 minutes or less, but the ebbs and flows of airports during the shutdown has meant that some have been in scenarios where they’ve been severely understaffed.

Last week, for instance, multiple security lanes at Atlanta’s Hartfield-Jackson International Airport were closed; wait times to pass through security lasted more than an hour and multiple flights were canceled. TSA is also expecting an influx of visitors into Atlanta for the Superbowl on February 3rd.

The continued lack of funding for TSA has also meant some workers have decided to simply quit outright, according to Hydrick Thomas, head of the American Federation of Government Employees’ TSA Council.

“Some of them have already quit and many are considering quitting the federal workforce because of this shutdown,” he said in a statement. “The loss of officers, while we’re already shorthanded, will create a massive security risk for American travelers since we don’t have enough trainees in the pipeline or the ability to process new hires.”

It’s not just TSA employees that have been struggling as the government shutdown enters its 30th day.

FBI field offices in Newark, Dallas, New Jersey and Washington are also establishing, or plan to establish, food banks for agents, who are also considered essential employees and must work through the shutdown. Because of security considerations FBI agents are usually prohibited from taking a second job, but according to CNN there has been a sharp surge in the number of agents and workers looking for additional employment.

Meanwhile, employees at federal prisons are also logging double shifts, and even in some cases using medical or maintenance employees to work as guards to help supplement low staffing numbers. According to the New York Times this led some inmates at New York’s Metropolitan Correction Center to go on hunger strike last week, as staffing shortages had forced the jail to cancel family visits for a second week.

This article was originally published at ThinkProgress on January 21, 2019. Reprinted with permission.

About the Author: Luke Barnes is a reporter at ThinkProgress. He previously worked at MailOnline in the U.K., where he was sent to cover Belfast, Northern Ireland and Glasgow, Scotland. He graduated in 2015 from Columbia University with a degree in Political Science. He has also interned at Talking Points Memo, the Santa Cruz Sentinel, and Narratively.

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Federal Employees Are Suing the Trump Administration for Forcing Them to Work for Free

January 22nd, 2019 | Michael Arria

Workers are suing the Trump administration, arguing that it’s illegal to compel federal employees to work with no pay. Filed by the American Federation of Government Employees (AFGE), the lawsuit comes amid calls for federal workers to go on strike or stage a sick-out as the government shutdown enters its fifth week.

On December 31, the AFGE sued the Trump administration for denying pay to federal workers during the partial government shutdown, alleging that the action was a clear violation of the Fair Labor Standards Act, the 1938 law that created the right to a minimum wage and overtime pay. On January 9, the union filed an amended complaint in the lawsuit, charging that the government is in violation of minimum wage laws. 

Nearly half a million federal employees deemed “essential” have been ordered to continue working despite the fact that they do not know when they will ultimately be paid for their hours.

Heidi Burakiewicz, an attorney representing the plaintiffs as part of Kalijarvi, Chuzi, Newman & Fitch, told In These Times that the amended complaint was initiated over the fact that 420,000 federal employees had gone a full two weeks without a paycheck by mid-January, which is a violation of minimum wage laws.

Burakiewicz says the plaintiffs are seeking back pay, plus liquidated damages to compensate for the financial decisions they’ve been forced to make during the shutdown. “People are running up late payment penalties and interest charges,” said Burakiewicz. “There’s so many people who live paycheck to paycheck, and we’ve heard about so many incredibly heartbreaking situations.”

Although there are just two plaintiffs so far, AFGE is setting up an electronic sign-up system for other workers to join the lawsuit, and Burakiewicz estimates that she’s already received about 7,000 emails from people inquiring about how to become part of it.

This isn’t the first time Burakiewicz has sued the federal government. After the 2013 government shutdown, Burakiewicz represented 25,000 essential federal employees who filed a lawsuit on similar grounds. The government tried to get the case dismissed by arguing that federal law prevented them from spending any money that had not been allocated by Congress.

A judge with the U.S. Court of Federal Claims disagreed with the government’s assessment and ruled in favor of the plaintiffs in 2014. In 2017, the court determined that the workers were actually entitled to double their back pay. Despite the victory, the workers are still waiting to receive their compensation.

Burakiewicz says that one of the reasons the litigation has been so slow is because the lawsuit was unprecedented and there were a number of legal issues that had to be ironed out. Since this terrain has now been covered, she thinks that this second lawsuit will proceed much quicker—and that it will be much easier to calculate damages for the workers.

As the shutdown continues, some are calling for strikes and work stoppages. On January 14, Barbara Ehrenreich and Gary Stevenson called on Transportation Security Administration (TSA) workers to go on a strike in a New York Times op-ed. “The moral foundation for a strike is unquestionably firm,” reads the piece. “The federal government has broken its contract with its employees—locking some of them out of their workplaces and expecting others to work for the mere promise of eventual pay.”

Federal employees are legally prevented from going on strike, and in 1981 Ronald Reagan infamously fired almost 13,000 members of the Professional Air Traffic Controllers Organization (PATCO) for participating in one. Many credit Reagan with dealing organized labor a blow that it has never entirely recovered from, as the private sector began imitating Reagan’s move and began replacing striking workers rather than negotiating with them.

However, there are signs that workers today are bringing the strike back. The year 2018 saw waves of teachers’ strikes and work stoppages that rocked a number of GOP-controlled states. All of these actions were led by the rank and file, and in many cases the teachers pushed the leadership of their unions towards more radical demands. Teachers’ strikes are illegal in West Virginia, yet that didn’t stop them from walking out nor did it impact their success.

In Slate, Henry Grabar spoke with historian Joseph McCartin about the many reasons that TSA workers shouldn’t fear the specter of PATCO if they end up striking. Reagan was popular during the time of the strike, while Trump’s approval rating continues to dip, and there probably isn’t a trained replacement workforce that could easily be implemented like there was in 1981. Additionally, there are tens of thousands more TSA employees than there were air-traffic controllers, and air travel is a much bigger part of the country’s economy, which would increase the potential leverage that a work stoppage could generate.

McCartin, who wrote the definitive book on the PATCO strike, published a piece in The American Prospect on January 14 calling on TSA workers to participate in a spontaneous sickout that would force the government to act. McCartin doesn’t believe that such an action would need to be nationwide to have an immediate impact. “This partial shutdown can continue only as long as hundreds of thousands of federal workers cooperate with it by working without pay, and often having to do more because many of their colleagues have been furloughed,” writes McMartin.

In addition to the AFGE lawsuit, the National Treasury Employees Union sued the govermnent in an attempt to excuse federal employees from working. On January 15, a Washington, D.C. judge ruled that government employees are still legally obligated to go to work even if they aren’t being paid.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

This article was originally published at In These Times on January 22, 2019. Reprinted with permission.

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Martin Luther King Jr. Was a Union Man

January 21st, 2019 | Peter Cole

If Martin Luther King Jr. still lived, he’d probably tell people to join unions.

King understood racial equality was inextricably linked to economics. He asked, “What good does it do to be able to eat at a lunch counter if you can’t buy a hamburger?”

Those disadvantages have persisted. Today, for instance, the wealth of the average white family is more than 20 times that of a black one.

King’s solution was unionism.

Convergence of needs

In 1961, King spoke before the AFL-CIO, the nation’s largest and most powerful labor organization, to explain why he felt unions were essential to civil rights progress.

“Negroes are almost entirely a working people,” he said. “Our needs are identical with labor’s needs – decent wages, fair working conditions, livable housing, old age security, health and welfare measures, conditions in which families can grow, have education for their children and respect in the community.”

My new book, “Dockworker Power: Race and Activism in Durban and the San Francisco Bay Area,” chronicles King’s relationship with a labor union that was, perhaps, the most racially progressive in the country. That was Local 10 of the International Longshoremen’s and Warehousemen’s Union, or ILWU.

ILWU Local 10 represented workers who loaded and unloaded cargo from ships throughout San Francisco Bay’s waterfront. Its members’ commitment to racial equality may be as surprising as it is unknown.

In 1967, the year before his murder, King visited ILWU Local 10 to see what interracial unionism looked like. King met with these unionists at their hall in a then-thriving, portside neighborhood – now a gentrifiedtourist area best known for Fisherman’s Wharf, Pier 39.

While King knew about this union, ILWU history isn’t widely known off the waterfront.

Civil rights on the waterfront

Dockworkers had suffered for decades from a hiring system compared to a “slave auction.” Once hired, they routinely worked 24 to 36 hour shifts, experienced among the highest rates of injury and death of any job, and endured abusive bosses. And they did so for incredibly low wages.

In 1934, San Francisco longshoremen – who were non-union since employers had crushed their union in 1919 – reorganized and led a coast-wide “Big Strike.”

In the throes of the Great Depression, these increasingly militant and radicalized dockworkers walked off the job. After 83 days on strike, they won a huge victory: wage increases, a coast-wide contract and union-controlled hiring halls.

Soon, these “wharf rats,” among the region’s poorest and most exploited workers, became “lords of the docks,” commanding the highest wages and best conditions of any blue-collar worker in the region.

At its inception, Local 10’s membership was 99 percent white. But Harry Bridges, the union’s charismatic leader, joined with fellow union radicals to commit to racial equality in its ranks.

Originally from Australia, Bridges started working on the San Francisco waterfront in the early 1920s. It was during the Big Strike that he emerged as a leader.

Bridges coordinated during the strike with C.L. Dellums, the leading black unionist in the Bay Area, and made sure the handful of black dockworkers would not cross picket lines as replacement workers. Bridges promised they would get a fair deal in the new union. One of the union’s first moves after the strike was integrating work gangs that previously had been segregated.

Local 10 overcame pervasive discrimination

Cleophas Williams, a black man originally from Arkansas, was among those who got into Local 10 in 1944. He belonged to a wave of African-Americans who, due to the massive labor shortage caused by World War II, fled the racism and discriminatory laws of the Jim Crow South for better lives – and better jobs – outside of it. Hundreds of thousands of blacks moved to the Bay Area, and tens of thousands found jobs in the booming shipbuilding industry.

Black workers in shipbuilding experienced pervasive discrimination. Employers shunted them off into less attractive jobs and paid them less. Similarly, the main shipbuilders’ union proved hostile to black workers who, when allowed in, were placed in segregated locals.

A few thousand black men, including Williams, were hired as longshoremen during the war. He later recalled to historian Harvey Schwartz: “When I first came on the waterfront, many black workers felt that Local 10 was a utopia.”

During the war, when white foremen and military officers hurled racist epithets at black longshoremen, this union defended them. Black members received equal pay and were dispatched the same as all others.

For Williams, this union was a revelation. Literally the first white people he ever met who opposed white supremacy belonged to Local 10. These longshoremen were not simply anti-racists, they were communists and socialists.

Leftist unions like the ILWU embraced black workers because, reflecting their ideology, they contended workers were stronger when united. They also knew that, countless times, employers had broken strikes and destroyed unions by playing workers of different ethnicities, genders, nationalities and races against each other. For instance, when 350,000 workers went out during the mammoth Steel Strike of 1919, employers brought in tens of thousands of African-Americans to work as replacements.

Some black dockworkers also were socialists. Paul Robeson, the globally famous singer, actor and left-wing activist had several friends, fellow socialists, in Local 10. Robeson was made an honorary ILWU member during WWII.

Martin Luther King, union member

In 1967, King walked in Robeson’s footsteps when he was inducted into Local 10 as an honorary member, the same year Williams became the first black person elected president of Local 10. By that year, roughly half of its members were African-American.

King addressed these dockworkers, declaring, “I don’t feel like a stranger here in the midst of the ILWU. We have been strengthened and energized by the support you have given to our struggles. … We’ve learned from labor the meaning of power.”

Many years later, Williams discussed King’s speech with me: “He talked about the economics of discrimination. … What he said is what Bridges had been saying all along,” about workers benefiting by attacking racism and forming interracial unions.

Eight months later, in Memphis to organize a union, King was assassinated.

The day after his death, longshoremen shut down the ports of San Francisco and Oakland, as they still do when one of their own dies on the job. Nine ILWU members attended King’s funeral in Atlanta, including Bridges and Williams, honoring the man who called unions “the first anti-poverty program.”

This article appeared at In These Times on January 21, 2019. Reprinted with permission. 

About the Author: Peter Cole is a Professor of History at Western Illinois University. He is the author of Wobblies on the Waterfront: Interracial Unionism in Progressive Era Philadelphia and is currently at work on a book entitled Dockworker Power: Race and Activism in Durban and the San Francisco Bay Area. He is a Research Associate in the Society, Work and Development Program (SWOP) at the University of the Witwatersrand in Johannesburg, South Africa, and has published extensively on labor history and politics. He tweets from @ProfPeterCole.

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The Legal Foundation for Age Discrimination Claims

January 18th, 2019 | Charles Joseph

In 2009, an Arizona fire department laid off its two oldest firefighters. John Guido, 46, and Dennis Rankin, 54, believed their age played a role in the layoffs. But when Guido and Rankin filed an age discrimination lawsuit, the Mount Lemmon Fire District argued the men weren’t covered by federal age discrimination protections. The department claimed that they employed fewer than 20 people, so the Age Discrimination in Employment Act of 1967 (ADEA) did not apply to their employees.

Nearly a decade later, the Supreme Court weighed in on the case. Their ruling found that all public employees, including those working for local, state, or the federal government, receive protections under the ADEA, regardless of the department’s size.

While this recent ruling clarified the scope of the ADEA, it may do little to stop age discrimination in the workplace. Millions of workers face age discrimination every day. In a recent AARP study, over 60 percent of workers aged 45 and older had witnessed or experienced age discrimination at work. In spite of the prevalence of age discrimination, AARP reports that only 3 percent of older workers report filing a complaint about age discrimination, either internally to their employer or to a government agency.

Many workers may simply lack information about their legal protections. Age discrimination falls into an unusual legal category compared to other forms of discrimination, and recent legal rulings have shaped future ADEA cases. In the 1960s, the federal government passed ADEA and Title VII. Both granted protections from workplace discrimination. While ADEA covered employees over the age of 40, Title VII protected employees from discrimination on the basis of race, color, religion, sex, and national origin.

For its first decade, the Department of Labor enforced ADEA complaints, while the newly created Equal Employment Opportunity Commission (EEOC) handled Title VII violations. In 1979, the EEOC took over responsibility for ADEA complaints, bringing Title VII discrimination under the same agency as age discrimination. Critically, the different legal foundation for age discrimination shapes the protections workers receive.

Victoria A. Lipnic, acting chair of the EEOC, claims that the perception that age discrimination is fundamentally different from other forms of discrimination negatively influences ADEA jurisprudence. Lipnic cites a Fourth Circuit Judge who argued in 2018, “age is different because we are all going to get old … but when you’re talking about gender or race or ethnicity those are immutable characteristics as the Supreme Court has said. But it’s a little bit different because all of us are going to be older or elderly one day.” Lipnic contends, in contrast, that all forms of employment discrimination derive from stereotypes of prejudices about the targeted group. While historic differences shape those prejudices, those differences should not result in fewer protections from older workers.

However, a 2009 Supreme Court decision made it more difficult to prove age discrimination compared with other forms of discrimination. The ruling held that employees filing age discrimination suits must demonstrate that if not for their age, they would have received a job offer or not been laid off. This “but for” standard makes it challenging for employees to prove age discrimination. As Laurie McCann, an AARP Foundation senior attorney, told the Washington Post, “It’s rare for an employer to say, ‘I don’t want to hire you or I am going to fire you because you are too damn old.'”

In spite of the more difficult standard for proving age discrimination, the EEOC has settled multiple ADEA claims for substantial amounts. Sprint Nextel paid $57.5 million to setting an ADEA claim. Texas Roadhouse settled an age discrimination in hiring suit for $12 million, while Livermore National Laboratory settled a class action for $37.5 million. In the largest ADEA suit in the law’s history, the California Public Employees’ Retirement System paid a settlement of $250 million.

In addition to federal laws, many states and local governments have also passed age discrimination protections. These laws may offer additional protections above the federal standard. The New York State Human Rights Law, for example, prohibits discrimination against anyone over the age of 18 on the basis of age. Rather than protecting only workers over 40, as the ADEA does, this law extends age discrimination protections to all adult workers.

Age discrimination is a growing problem for employees. As an Urban Institute report found, in 1998, 33% of workers reported being forced or partially forced to retire. By 2014, that number grew to 55%. These cases, where older workers feel pressured to retire, can violate age discrimination protections.

By understanding the legal environment for age discrimination claims, employees can protect their rights and decide whether to file a claim. As with any other employment violation, employees may wish to consult with an attorney before proceeding.

About the Author: Charles Joseph is an employment lawyer with over two decades of experience. He founded Joseph and Kirschenbaum, a firm that has recovered more than $120 million for clients, and Working Now and Then, a resource on workers’ rights.

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New Jersey to get $15 minimum wage

January 17th, 2019 | Laura Clawson

Since New Jersey shed itself of Chris Christie, things have been looking up. And now around a million of the state’s low-wage workers will be getting a raise. Gov. Phil Murphy and legislative leaders reached an agreement on $15 minimum-wage legislation, something Christie had previously vetoed.

Under the plan, most workers would get a $15 minimum wage in 2024. The first raise will come July 1, to $10 from the current $8.85, then rise by a dollar a year until it reaches $15. Once it reaches $15, it will be adjusted for inflation annually. The tipped-worker minimum wage will rise gradually from $2.13 an hour to $5.13 an hour.

Exceptions to $15-in-2024 include workers at businesses with five or fewer employees and seasonal workers, who will take longer to reach $15, and farm workers, who will get to $12.50 in 2024 and then be at the mercy of state officials to decide whether they should eventually reach $15. Because … farm work isn’t hard enough to be worth $15 an hour? There sure are always people lined up to demand crappy concessions on worker-friendly bills. But one key attempt at undermining the policy was defeated, and teen workers will get the full $15 in 2024.

As is so often the case, it’s imperfect but a huge step forward. And coming the same week as congressional Democrats introduced a $15 minimum-wage plan, it reinforces that the country, if not the Republican Party, is on the right path on this issue.

This blog was originally published at Daily Kos on January 19, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

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