Outten & Golden: Empowering Employees in the Workplace

Wisconsin’s “Smoking Gun Of The Rigged Economy”

September 14th, 2016 | Dave Johnson

dave.johnson “Outsourcing is the smoking gun of the rigged economy.”
— Robert Kraig, Executive Director of Citizen Action of Wisconsin.

Companies extort tax breaks and subsidies by threatening to withhold jobs. After their demands are met, they instead outsource the promised jobs. For the workers who remain, the threat of outsourcing causes their wages to fall. As Donald Trump said, if companies outsource jobs to places where workers make less, then “… you’ll come back … because those guys are going to want their jobs back even if it is less.”

But lately people have been figuring out ways to start doing something about these kinds of things. People are organizing to build power, making noise that the public and elected officials can hear and making clear demands that force politicians answer the question, “Whose side are you on?”

Wisconsin’s Privatized Economic Development Corporation (WEDC)

One group organizing people and forcing public officials to declare whose side they are on is Citizen Action of Wisconsin, a People’s Action affiliate. They are an “issue focused coalition of individuals and organizations committed to achieving social, economic, and environmental justice.” Citizen Action of Wisconsin is taking on the Republican Scott Walker administration over their privatization and use of the state’s “jobs agency” Wisconsin Economic Development Corporation (WEDC) to subsidize corporations even as they move jobs out of the state.

In 2014, Mary Bottari of the Center for Media and Democracy’s PRWatch laid out the background in Madison’s The Cap Times, in “Only 5,840 ‘actual’ jobs from Walker’s WEDC”:

… In July 2011, WEDC was launched “with the mission of elevating Wisconsin’s economy to be the best in the world.” The quasi-public agency is run by a 15-person board chaired by the governor.

The agency was soon caught up in controversy. In July 2012, allegations of bid-rigging forced it to cancel a planned award to an information systems company. In October the Milwaukee Journal Sentinel reported WEDC had lost track of some $8 million in funds. In May, WEDC was slammed by the federal Department of Housing and Urban Development for misappropriating $10 million in federal funds.

In May 2013, the Wisconsin Legislative Audit Bureau found that WEDC had awarded a portion of these grants, loans and tax credits to ineligible recipients, for ineligible projects and for amounts that exceeded specified limits.

WEDC controls an extraordinary amount of taxpayer funds. In fiscal year 2011-12 alone, Walker’s WEDC administered “30 economic development programs through which it authorized local governments to issue $346.4 million in bonds, awarded $41.3 million in grants and $20.5 million in loans, and provided $110.8 million in tax credits to businesses and individuals,” says the audit bureau.

With all that taxpayer money, how many actual jobs have been created?

The answer, in 2014, was, “Two official state data sets indicate that for every verifiable job Walker’s WEDC managed to create, the state lost more than two to plant closings and layoffs.” Then 2015 audit found that the problems had only gotten worse.

Citizen Action of Wisconsin Takes On WEDC

In July of this year Citizen Action of Wisconsin announced what they found from an open records request of the privatized agency. In “WEDC Safeguards Against Outsourcing Completely Nonexistent”:

In response to a series of outsourcing scandals Governor Walker’s troubled jobs agency, the Wisconsin Economic Development Corporation (WEDC), adopted in 2014 a 30 day advanced notification policy. This policy is supposed to give state policymakers early warning if a corporation receiving state economic dollars plans to outsource jobs or downsize more jobs than they are paid to create.

An open records request by Citizen Action of Wisconsin found that despite a series of additional incidents of WEDC funded corporations outsourcing Wisconsin jobs, there are zero 30 day notifications in WEDC’s files.

They followed up in August, in, “At Least 11,331 Wisconsin Jobs Outsourced Overseas Over the Last Five Years,” which explains how “Governor Walker and Senator Johnson have aided and abetted multinational corporations in selling out Wisconsin workers for short-term profits.”

Data kept by the U.S. Department of Labor shows that at least 11,331 Wisconsin workers have had their jobs outsourced to other countries since Governor Walker’s scandal ridden jobs agency, the Wisconsin Economic Development Corporation (WEDC), was launched July 1, 2011. This is a very low-end estimate of the impact of outsourcing in Wisconsin because it only accounts for groups of workers who successfully applied for Trade Adjustment Assistance from the federal government by proving their jobs were eliminated because of global trade agreements. It does not account for outsourcing to other states, or downsizing where it is not possible to prove the jobs landed in a foreign country or were impacted by global trade deals.

Both Governor Scott Walker and U.S. Senator Ron Johnson have consistently supported a rigged economic system which allows multinational corporations to pit Wisconsin workers against low-wage foreign workers.

Also in August, a Wisconsin Public Radio report, “Citizen Action Of Wisconsin Claims WEDC Misrepresented Jobs Created In Sherman Park,” found that the agency was reporting success in creating 500 jobs in the very neighborhood where lack of opportunity contributed to two nights of disorder following the police shooting of Sylville K. Smith.

Citizen Action of Wisconsin reviewed a database on the Wisconsin Economic Development Corporation website and found the agency reported supporting and investing in the creation of 483 jobs in Sherman Park located on the city’s north side. When the nonprofit researched the companies adding those jobs, it found the companies to be located outside Milwaukee.

Summary: Republicans privatized the state economic development agency, awarded subsidies to companies that included campaign donors, stripped safeguards, and “lost track” of where millions of taxpayer dollars went. Meanwhile, companies receiving subsidies intended to create jobs in Wisconsin were actually shipping jobs out of the state and country, as part of an effort to pit state workers against low-wage workers and force down wages. WEDC aided that effort by misrepresenting the jobs numbers, and even reporting nonexistent job-creation.

Outsourced Wisconsin Tour

In response Citizen Action of Wisconsin has launched what they call the “Outsourced Wisconsin Tour” to “focus attention on corporate outsourcers who are taking public job creation dollars.”

The announcement, “Outsourced Wisconsin Tour Launched” explains:

Following last week’s revelation that over 11,000 Wisconsin jobs have been outsourced in the past five years, advocates for good jobs launched a statewide tour on Thursday of corporations who are outsourcing while taking public job creation dollars.

The first company on the tour is the Rexnord Corporation in Milwaukee:

At a news event today community leaders detailed how Rexnord outsourced Wisconsin jobs at the same time it took millions in public job creation dollars from Governor Walker’s scandal plagued Wisconsin Economic Development Corporation (WEDC).

[. . .] According to data from the U.S. Department of Labor and WEDC, Rexnord has actually outsourced more jobs than it has been paid with public dollars to create. The company has received $2.75 million in WEDC funds, but has so far outsourced 130 more jobs than it is has created.

“The Smoking Gun Of The Rigged Economy”

Robert Kraig, Executive Director of Citizen Action of Wisconsin explained the reason for the tour.

“Outsourcing is the smoking gun of the rigged economy. It would stun most Wisconsin workers to learn that state leaders are aiding and abetting economic treason by giving public dollars to corporations who are outsourcing more jobs than they create. It’s long overdue for federal and state government to side with workers by using it leverage to build an economy where everyone who wants a good job can get one.”

You can join their effort to end outsourcing, and say, “Enough!”

Click here: 11,331 WI jobs Gone Overseas in Last 5 Years – Tell Madison: Enough!

“With so many Wisconsin workers struggling to find family supporting jobs, our state and federal governments ought to be focused on creating an economy where everyone who wants a good job can get one. Shamefully, elected leaders who are supposed to work for us often aid and abet corporate outsourcers, helping them rig the economy against average people. They vote for trade deals which make it easier for multinational corporations to ship more of our good jobs overseas. In Wisconsin Scott Walker gives huge subsidies and tax giveaways to unpatriotic CEOs engaged in outsourcing our jobs.”

This post originally appeared on ourfuture.org on September 12, 2016. Reprinted with Permission.

Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

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The Midwest continues its paid sick leave winning streak

September 13th, 2016 | Bryce Covert
Bryce Covert

There is no national law ensuring that American workers can take a paid day off of work if they or their family members get sick. But there are now more than 30 of these laws in cities and states throughout the country.

On Wednesday, St. Paul became the second city in Minnesota to pass a paid sick leave law, following Minneapolis in May. Once it goes into effect, more than 68,000 workers in the city’s private sector who have gone without the benefit should be able to take a paid day for illness.

CREDIT: AP Photo/Brian Witte

Starting next summer, those at companies with 24 or more employees would be able to earn up to 48 hours of leave a year, while those at smaller ones will be covered at the beginning of 2018.

Before this year, paid sick leave laws had mostly been concentrated on the East and West coasts. But the last three laws passed have been in the Midwest, with Chicago passing its own ordinance in June.

In total, with St. Paul’s passage, 28 cities and five states have passed paid sick leave laws.

CREDIT: Dylan Petrohilos

These policies are already having a noticeable effect. The share of Americans who get paid sick days at work just reached an all-time high, climbing to 64 percent of the private sector workforce, up 7 percentage points over the last decade when cities and states began passing laws. Those toward the bottom of the income scale, who perversely are the least likely to get paid leave benefits, have been the biggest beneficiaries.

CREDIT: Bureau of Labor Statistics

This increase also hasn’t come at the expense of employers or employment. A new survey of businesses in New York City found that the vast majority reported no increase in their costs to comply with the law, while most of the small share that saw them go up only had to grapple with an increase of less than 3 percent. Meanwhile, they reported virtually no abuse of the benefit by employees, such as taking days when they weren’t actually sick.

That comports with other surveys of employers after these policies have taken effect. Employers in Connecticut, Jersey City, and Washington, D.C. have also reported that the laws weren’t costly or difficult to comply with. The majority of businesses in San Francisco and Seattle actually support the policies now.

Job growth has also remained unaffected. It stayed strong in Connecticut and San Francisco even after paid sick days went into effect and was actually stronger in Seattle.

This article was originally posted at Thinkprogress.org on September 8, 2016. Reprinted with permission.

Bryce Covert  is the Economic Policy Editor for ThinkProgress. Her writing has appeared in the New York Times, The New York Daily News, New York Magazine, Slate, The New Republic, and others. She has appeared on ABC, CBS, MSNBC, and other outlets.

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It’s Game On for Grad Students After NLRB Rules They Can Unionize

September 12th, 2016 | Rebecca Nathanson

rebeccanathanson

December 5 fell on a Friday in 2014; in New York City, the air was crisp. At Columbia University, about 200 graduate student-workers pulled on hats and scarves to gather on the imposing steps of Low Library, which houses the university president’s office. While most stood in a block formation, holding signs declaring their department names, a small delegation went inside to deliver a letter to the president. It asked that he voluntarily recognize their union, the Graduate Workers of Columbia (GWC-UAW Local 2110), which a majority of graduate employees supported.

When the administration declined to reply, GWC and the United Auto Workers (UAW), with which it is affiliated, petitioned the National Labor Relations Board (NLRB) to certify their union. A complicated legal process ensued.

For more than a decade, the NLRB considered graduate employees to be students, not workers. As such, they did not have the same legal rights of most employees, including the right to organize. All that changed two weeks ago when the NLRB decision on the Columbia case finally came back, siding with the student-workers and their right to collective bargaining.

“Obviously, it’s a huge push for us and it’s caused a lot of excitement and enthusiasm,” says Ian Bradley-Perrin, a PhD student in sociomedical sciences and history, who has worked as both a teaching and research assistant.

After months of approaching people with hypotheticals, he says that he and his fellow organizers can now speak in concrete terms: “We’re going to have an election. We are now recognized as workers. So it’s just been talking to people about what a union actually means, how the union is organized democratically, how people’s interests will be represented in the union.”

Graduate teaching and research assistants at a handful of private universities have been working towards unionization for years. Their administrations have largely been able to ignore their actions, citing the NLRB’s designation of them as students. Now, however, their efforts can finally move forward. They have the legal right to hold union elections and then negotiate contracts, providing them a collective voice in the terms of their employment. Already, the NLRB’s ruling is invigorating existing campaigns and inspiring new ones.

Graduate employees at many public universities have long enjoyed the right to unionize, but their peers at private universities have faced a long, serpentine route to achieve that same right. (Rebecca Nathanson)

Graduate employees at many public universities have long enjoyed the right to unionize, but their peers at private universities have faced a long, serpentine route to achieve that same right. (Rebecca Nathanson)

Path to recognition

Graduate employees at many public universities have long enjoyed the right to unionize, but their peers at private universities have faced a long, serpentine route to achieve that same right. In 2001, graduate employees at New York University (NYU) became the country’s first to form a union and negotiate a contract at a private university, providing teaching assistants with wage increases and improved working conditions.

Three years later, graduate employees at Brown University attempted to do the same, but the NLRB, which had then shifted to a Republican majority, ruled that graduate employees were primarily students, not workers. In 2005, the NYU union’s contract expired and, using the 2004 Brown decision as precedent, the administration refused to negotiate a new one.

NYU’s administration kept firm to that stance until fall 2013, when it offered to voluntarily recognize the union. More than 98 percent of graduate employees voted in favor of the union, making it, once again, the only graduate employee union at a private university.

Organizers across the country were anxious to follow in their footsteps. Last month’s NLRB ruling gives them a shot in the arm.

At Harvard University, graduate student organizer Abigail Weil is particularly excited by the expansive way in which the NLRB defined a graduate employee in its ruling: “It’s broader and more inclusive than even we had hoped for. That’s just that many more people that we can talk to and fold into the bargaining unit as we create it.”

In its decision, the NLRB writes, “It is appropriate to extend statutory coverage to students working for universities covered by the (National Labor Relations) Act unless there are strong reasons not to do so.” It continues, “We will apply that standard to student assistants, including assistants engaged in research funded by external grants.” Not only does this include research assistants in addition to teaching assistants, but, Weil posits, it could also be interpreted as including working Masters students—and possibly even working undergraduates.

According to Weil, the Harvard Graduate Students Union (HGSU-UAW) plans to file a petition for an election. She can already see a change in campus support.

“We’re thrilled at how many people were following the NLRB story,” she says. “Since that decision has come out, probably two-thirds of the people that we talk to now bring (it) up without us having to bring that up or explain it.”

Organizers at The New School, in New York City, are experiencing a similar phenomenon.

Like at Columbia, graduate employees at The New School asked their administration to voluntarily recognize their union. When that didn’t work, they too petitioned the NLRB for certification, only to hit the wall created a decade earlier by the Brown decision.

“We had our first meeting of the year on Monday and we had probably three times as many people show up,” says Eli Nadeau, a Masters student in the politics department at The New School. “We’re planning for an election because Columbia’s ruling covers us.”

Graduate workers at Cornell University took a slightly different approach to winning collective bargaining rights. While biding their time until the NLRB ruled on the Columbia case, they negotiated and signed a code of conduct with their administration in May. The document outlines the mechanisms by which a union election would take place and the behavior expected of both sides.

“Our next steps are really just working on the union. We are building outreach and finding out what our members’ concerns are,” explains Ben Norton, a PhD student in the music department and the communications and outreach chair of Cornell Graduate Students United, the university’s graduate employee union affiliated with the American Federation of Teachers and the National Education Association.

“We wasted no time”

Campaigns on numerous campuses have been galvanized by the Columbia decision, but graduate employees at Yale University took perhaps the swiftest action in its wake. Less than a week after the ruling, they filed a petition to hold an election to certify their union with the NLRB.

“We wasted no time. It was really exciting for the path to victory to open up and for us to really take advantage of it,” says Aaron Greenberg, a PhD student in the political science department and chair of Local 33-UNITE HERE, which represents Yale’s graduate teaching and research assistants.

In filing their petition, UNITE HERE and organizers at Yale are creating yet another variation on a graduate employee union. Rather than file as an entire unit of employees across the university, they did so department-by-department, starting with 10 departments.

“We really want a process that reflects how our work is organized. How much you get paid, what kind of work you do, what kind of hours you do really depend on the department,” explains Greenberg. Plus, he adds, “We’re hoping that by filing each department separately and starting with departments where the desire to unionize is overwhelmingly clear, we can avoid wasteful legal gamesmanship, unnecessary delays, and that the university will respect the democratic will of the members of these departments, who have made clear, time and time again, that they want a union.”

One of the next steps for graduate employees at many of the private universities hoping to take advantage of the recent NLRB decision will be working out the exact parameters of the bargaining unit: who it covers and who it excludes is not yet completely clear. But in the meantime, they will, for the first time in more than a decade, be able to move closer towards unionization without legal barriers—barriers which, organizers believe, were knocked down by the force of the organizing that took place in those intervening years.

“Labor law follows organizing, not the other way around,” says Weil. “We have been organizing to the full extent of our abilities, not the full extent of our legal rights. We’re happy to have those rights restored.”

This article was originally posted at InTheseTimes.com on September 9, 2016. Reprinted with permission.

Rebecca Nathanson is a freelance writer in New York City. She has written for Al Jazeera America, n+1, The Nation, NewYorker.com,The Progressive, RollingStone.com, and more.

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New Rules Needed to Solve Steel Crisis

September 9th, 2016 | Leo Gerard

China is gorging itself on steelmaking. It is forging so much steel that the entire world doesn’t need that much steel.

Companies in the United States and Europe, and unions like mine, the United Steelworkers, have spent untold millions of dollars to secure tariffs on imports of this improperly government-subsidized steel. Still China won’t stop. Diplomats have elicited promises from Chinese officials that no new mills will be constructed. Still they are. Chinese federal officials have written repeated five-year plans in which new mills are banned. Yet they are built.

All of the dog-eared methods for dealing with this global crisis in steel have failed. So American steel executives and steelworkers and hundreds of thousands of other workers whose jobs depend on steel must hope that President Barack Obama used his private meeting with China’s President XI Jinping Saturday to press for a novel solution. Because on this Labor Day, 14,500 American steelworkers and approximately 91,000 workers whose jobs depend on steel are out of work because China won’t stop making too much steel.

A new report on the crisis, titled “Overcapacity in Steel, China’s Role in a Global Problem,” by the Duke University Center on Globalization, Governance & Competitiveness flatly concludes that existing policies to stop China from building excessive steel capacity have failed.

steel-overcapacity-table

Since 2007, China has added 552 million metric tons of steel capacity – an amount that is equivalent to seven times the total U.S. steel production in 2015. China did this while repeatedly promising to cut production. China did this while the United States actually did cut production, partly because China exported to the United States illegitimately subsidized, and therefore underpriced, steel.

That forced the closure or partial closure of U.S. mills, the layoffs of thousands of skilled American workers, the destruction of communities’ tax bases and the threat to national security as U.S. steelmaking capacity contracted.

Although China, the world’s largest net exporter of steel, knows it makes too much steel and has repeatedly pledged to cut back, it plans to add another 41 million metric tons of capacity by 2017, with mills that will provide 28 million metric tons already under construction.

None of this would make sense in a capitalist, market-driven system. But that’s not the system Chinese steel companies operate in. Chinese mills don’t have to make a profit. Many are small, inefficient and highly polluting. They receive massive subsidies from the federal and local governments in the form of low or no-interest loans, free land, cash grants, tax reductions and exemptions and preferential access to raw materials including below market prices.

That’s all fine if the steel is sold within China. But those subsidies violate international trade rules when the steel is exported.

These are the kinds of improper subsidies that enable American and European companies to get tariffs imposed. But securing those penalties requires companies and unions to pay millions to trade law experts and to provide proof that companies have lost profits and workers have lost jobs. So Americans must bleed both red and green before they might see limited relief.

The Duke report suggests that part of the problem is that market economies like those in the United States and Europe are dealing with a massive non-market economy like China and expecting the rules to be the same. They just aren’t.

Simply declaring that China is a market economy, which is what China wants, would weaken America’s and Europe’s ability to combat the problems of overcapacity. For example, the declaration would complicate securing tariffs, the tool American steel companies need to continue to compete when Chinese companies receive improper subsidies.

The Duke report authors recommend instead delaying action on China’s request for market economy status until China’s economic behavior is demonstrably consistent with market principles.

The authors of the Duke report also suggest international trade officials consider new tools for dealing with trade disputes because the old ones have proved futile in resolving the global conflict with China over its unrelenting overcapacity in steel, aluminum and other commodities.

For example, under the current regime, steel companies or unions must prove serious injury to receive relief. The report suggests: “changing the burden of proof upon a finding by the World Trade Organization (WTO) dispute settlement panel of a prohibited trade-related practice, or non-compliance with previous rulings by the WTO.”

It also proposes multilateral environmental agreements with strict pollution limits. Under these deals, companies in places like the United States and Europe that must comply with strong pollution standards would not be placed at an international disadvantage as a result, and the environment would benefit as well.

In addition to the family-supporting steelworker jobs across this country that would be saved by innovative intervention to solve this crisis, at stake as well are many other jobs and the quality of jobs.

The Congressional Steel Caucus wrote President Obama before he left last week on his trip to Hangzhou for the G-20 Summit asking that he secure the cooperation of China and pointing out the large number of downstream jobs that are dependent on steel.

Also last week, the Economic Policy Institute issued a report titled “Union Decline Lowers Wages of Nonunion Workers.” It explained that the ability of union workers to boost nonunion workers’ pay weakened as the percentage of private-sector workers in unions fell from about 33 percent in the 1950s to about 5 percent today.steel-overcapacity-table-2

The EPI researchers found that nonunion private sector men with a high school diploma or less education would receive weekly wages approximately 9 percent higher if union density had remained at 1979 levels. That’s an extra $3,172 a year.

Many steelworkers are union workers. If those jobs disappear, that would mean fewer family-supporting private sector union jobs. And that would mean an even weaker lift to everyone else’s wages.

America has always been innovative. Now it must innovate on trade rules to save its steel industry, its steel jobs and all those jobs that are dependent on steel jobs.

This post originally appeared on ourfuture.org on August 25, 2016. Reprinted with Permission.

Leo Gerard is the president of the United Steelworkers International union, part of the AFL-CIO. Gerard, the second Canadian to lead the union, started working at Inco’s nickel smelter in Sudbury, Ontario at age 18. For more information about Gerard, visit usw.org.

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Overtime for farmworkers passes California legislature, heads to governor's desk

September 8th, 2016 | Laura Clawson

LauraClawson

The California legislature has passed a bill that would give farmworkers the same overtime protections as other workers. Now the question is whether Gov. Jerry Brown, who has not taken a position on the proposal, will sign the expansion from the state’s current law, which requires employers to pay time-and-a-half after farmworkers put in 10 hours in a day or 60 hours in a week. Other workers get, and farmworkers stand to get, overtime pay after eight hours in a day or 40 in a week.

 
Getting this bill passed required serious legislative maneuvering by Assemblywoman Lorena Gonzalez:

The Assembly rejected the proposal in June, when eight Democrats opposed it and another six refused to vote. In what Gonzalez has described as an unprecedented move to revive the bill, she worked around the Legislature’s rules and reinserted the proposal in another bill, angering Republicans who objected to the breach in procedure.

dreamstime_m_55622795

Gonzalez waged a social media campaign to pressure her Democratic colleagues to back AB1066; agreed to compromises to win votes, including giving small farms an extra three years to pay more overtime; and led a squad of Democratic allies in a 24-hour fast paying homage to the weeks long fast that legendary farmworker activist Cesar Chavez staged when the “Salad Bowl” strike of 1970 initially failed.

 

 

Federal law excludes agricultural workers from overtime protections, so California is already ahead—but these workers deserve the same protections and rights as everyone else.

This article originally appeared at DailyKOS.com on August 24, 2016. Reprinted with permission.

Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.

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D.R. Horton Rising: The Ninth Circuit Sides with the Seventh Circuit and the National Labor Relations Board on Class Action Waivers, in Morris v. Ernst & Young, LLP

September 7th, 2016 | Rachel Terp
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Yesterday, the Ninth Circuit took sides in a major split within the U.S. Courts of Appeals over the enforceability of class arbitration waivers. In Morris v. Ernst & Young, LLP, No. 13-16599, Slip. Op. (9th Cir. Aug. 22, 2016), the Ninth Circuit held that employers violate Sections 7 and 8 of the National Labor Relations Act (“NLRA”) by requiring employees covered by the NLRA to waive, as a condition of their employment, participation in “concerted activities” such as class and collective actions. (Slip Op. at 1.)

By this holding, the Ninth Circuit joins the Seventh Circuit, which in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. May 26, 2016) adopted the National Labor Relations Board (“The Board”) position in D.R. Horton, Inc., 357 NLRB No. 184 (2012). Under this line of authority, the Federal Arbitration Act (“FAA”) does not mandate enforcement of a contract that waives the substantive federal right to engage in concerted action established in Section 7 of the NLRA. (Slip Op. at p. 18-19.) Bryan Schwartz Law blogged in detail about the Lewis v. Epic Systems Corp. decision, here.

In Morris, two employees filed a class and collective action alleging that their employer had misclassified workers as exempt and deprived them of overtime in violation of the Fair Labor Standards Act (“FLSA”) and California labor laws. As a condition of employment, the employees were required to sign contracts containing a “concerted action wavier” that obligated them (1) to pursue legal claims against their employer exclusively through arbitration and (2) to arbitrate individually in “separate proceedings.” Based on these agreements, the employer moved to compel the employees to arbitrate their claims individually. The U.S. District Court granted the employer’s motion. (Slip Op. at p. 4-5.)

The Ninth Circuit reversed, reviewing the decision to compel arbitration de novo. Chief Judge Sidney R. Thomas explained in the opinion:

This case turns on a well-established principal: employees have the right to pursue work-related legal claims together. 29 U.S.C. § 157; Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978). Concerted activity – the right of employees to act together – is the essential substantive right established by the NLRA. 29 U.S.C. § 157. Ernst & Young interfered with that right by requiring its employees to resolve all of their legal claims in “separate proceedings.” Accordingly the concerted action waiver violates the NLRA and cannot be enforced.

(Id. at p. 6.)

The Ninth Circuit explained that the FAA does not dictate a contrary result. (Id. at 14.) While the FAA creates a “federal policy favoring arbitration” clause enforcement, the Act contains a savings clause that prohibits enforcement of arbitration agreements that defeat substantive federal rights, including the right to engage in concerted activity under the NLRA. (Id. at 15, 26.) In Morris, employees’ waiver was illegal not because it required the employees to pursue their claims in arbitration, but rather, because they could not do so in concert. (Id. at p. 16.)

Other circuit courts have taken a contrary position, enforcing employers concerted action waivers under the FAA. See Cellular Sales of Missouri, LLC v. N.L.R.B., 824 F.3d 772, 776 (8th Cir. June 2, 2016); Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053-54 (8th Cir. 2013); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 361 (5th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013).

As more circuits choose sides on whether class action waivers in arbitration agreements are enforceable, Supreme Court review becomes an inevitability.

The High Court would also be wise to resolve a disagreement between the Ninth and Seventh Circuits regarding such waivers. In the Seventh Circuit, any “[c]ontracts that stipulate away employees’ Section 7 rights . . . are unenforceable.” Epic, 823 F.3d. at 1155. The Ninth Circuit precedent is narrower, making such contracts enforceable if employment is not conditioned on agreeing to the clause. (Slip. Op. 11, n. 4.) For example, if an employee has the opportunity to opt-out of a class action waiver and keep his or her job, but chooses not to, that waiver would be enforceable by the employer in the Ninth Circuit. (Id. (citing Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1076 (9th Cir. 2014))). The Seventh Circuit provides a clearer rule, one that better comports with the purposes of the NLRA, and one that the Supreme Court should adopt.

For now, workers in the Ninth and Seventh Circuits, as well as their advocates, should take note that employers cannot force employees to sign class action waivers as a condition of employment, because Epic and Morris tell us that the NLRA provides employees with the right to vindicate their employment rights collectively.

This blog appeared on Bryan Schwartz Law on August 23, 2016. Reprinted with permission.

Rachel Terp is an associate at Bryan Schwartz Law, where she focuses on employment discrimination, whistleblower, and wage and hour claims. Previously, Ms. Terp was a Bridge Fellow with the East Bay Community Law Center (EBCLC), where she specialized in consumer litigation.

 Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Mr. Schwartz and his firm have fought to prohibit discrimination, retaliation, and harassment obtained reasonable accommodation for disabled employees, vindicated whistleblowers’ rights and ensured that corporations pay workers all wages they are owed. Bryan Schwartz Law has successfully litigated individual and class action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers. Bryan Schwartz Law is also one of the few Bay Area-based law firms with extensive experience representing Federal employees in their unique Merit Systems Protection Board and Equal Employment Opportunity Commission complaints.

 

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Fox News Has a Sexual Harassment Problem and It’s Way Bigger Than Roger Ailes

September 6th, 2016 | Sady Doyle

photo_159877The Roger Ailes harassment scandal was never just about Roger Ailes. We knew that from the beginning: Gretchen Carlson, the woman whose sexual harassment lawsuit helped topple the Fox News chief (and unleashed a flood of similar harassment and assault allegations) stated that she’d only come into Ailes’ line of sight because she was pursuing remedy for a different instance of workplace discrimination.

The circumstances of Carlson’s suit are indicative of a wider problem. In her suit, Carlson alleges that her Fox & Friends co-host, Steve Doocy, made her life hell by “mocking her during commercial breaks, shunning her off air, refusing to engage with her on air, belittling her contributions to the show, and generally attempting to put her in her place by refusing to accept and treat her as an intelligent and insightful female journalist.” When she reported his behavior, Ailes allegedly called Carlson a “man hater” and told her to “get along with the boys,” eventually demanding sex in return for his intervention.

With all that in mind, can it really be surprising that yet another woman has now come forward to allege sexual harassment—or that the woman in question, Andrea Tantaros, describes Fox News itself as “a sex-fueled, Playboy Mansion-like cult, steeped in intimidation, indecency, and misogyny?”

The specific harassers named are new—Bill O’Reilly, correspondent John Roberts and former Sen. Scott Brown are all named—and so are some details. (Tantaros alleges that after she shot Ailes down the company’s media relations department began arranging bad press for her, even setting up fake social media accounts to attack her online presence with nasty comments.) But the overarching allegation that Ailes “(did) not act alone”—that other men at the network benefited from a system designed to enable sexual harassment and that the system found a way to cover for the accused men and make their female victims disappear—was familiar from Carlson’s suit. The players may change, but the song remains the same, and anyone who’s studied how sexual harassment works has no trouble recognizing this particular tune.

Harassment isn’t an individual problem; it’s a problem inflicted by communities, either because the members participate in the violence or because they’ve learned to stay quiet as a means of self-defense. (Johnny Silvercloud/ Flickr)

Harassment isn’t an individual problem; it’s a problem inflicted by communities, either because the members participate in the violence or because they’ve learned to stay quiet as a means of self-defense. (Johnny Silvercloud/ Flickr)

Fox News has declined to comment on Tantaros’ case, citing pending litigation. The network’s parent company, 21st Century Fox, released a statement saying it was conducting an internal review of conduct by Ailes and Doocy. Ailes has strenuously denied the accusations against him, as has Brown.

There’s been a lot of ink spilled on Ailes’ personal repugnance over the past few months, but sexual harassment almost never comes down to one corrupt executive. For that matter, the harm done to victims usually doesn’t start with the big, obvious assaults or demands. Sexual harassment is built on minor violations accrued over time—a put-down here, an off-color hint there—until the boundaries of normal workplace behavior have been eroded to the point of collapse, and the major crimes (assault, stalking, quid pro quo demands) can be committed without fear of violating norms.

Though some harassers may be more vicious and more predatory than others, the process of disintegrating those boundaries and establishing an unsafe environment is usually crowdsourced throughout an organization. If harassers don’t think they can get away with something, they won’t do it. Creating an environment in which they can get away with it—and in which they can get away with it precisely because everyone else is already doing it—is part of the process.

To think of sexual harassment as a problem of one bad man is to fall into the fallacy of seeing sexual assault as a crime of passion. Sexual harassment is much more likely to result in someone losing her job than in sex. Someone is unlikely to fall in love or lust because she’s been forced to undress in front of colleagues (something Tantaros alleges Ailes did to her) but she’s very likely to have her job performance compromised by psychological damage or distraction, or gain a reputation as difficult because she can’t safely or comfortably work with certain colleagues, or simply quit because she can’t bear to come into work.

Sexual harassers don’t want sex. They want to push women out of the labor force, which they can easily do by making work more dangerous for women than it is for men.

Though it’s tempting to see the Fox News situation as somehow due to the uniquely horrible politics or personalities of the people involved—and they are, indeed, horrible—workplace environments like that are common enough that up to 1 in 3 women reports experiencing workplace harassment in her lifetime. And while we often envision harassment as coming from a predatory boss, in practice it’s largely a horizontal crime, committed between people whose only real power differential is their gender.

In the above-cited survey, 75 percent of women’s harassment came from male co-workers, and only 38 percent came from male managers. (Female co-workers were also represented on the list—but comprised only 10 percent of perpetrators.) What causes workplace harassment isn’t the politics of the workplace, or even individual power dynamics. The underlying cause is how the organization sees and enforces gender.

One of the defining features of sexual harassment, and one of the main reasons few cases are ever formally reported to higher-ups, is that victims are often penalized (as Tantaros says she was) or faced with an escalation in the harassment (as Carlson says she was) if they speak up. By the time a harassment case gets bad enough that a woman asks for help, the systemic corruption has already taken hold and the deck is likely to be stacked against her.

Yet, as dangerous as speech can be, silence is worse. Consider the many silences that supported Ailes: The women who were kept out of jobs because they refused Ailes’ advances (thus narrowing the field to women who were less likely to report him), the women who were removed or told to “get along with the boys” or “let it go” if they complained about lesser instances of sexism (thus sending the clear message that reporting larger instances would not be welcome), the men who, in the absence of any consequences, learned to behave as if there were no rules and joined in with a grope here or a proposition there, or simply a daily habit of being nasty and demeaning to their female co-workers.

Each minor infraction gives other men the message that they can get away with similar or worse infractions. Each penalty dealt to a female co-worker teaches other women not to speak up or support their fellow victims. Before long, the entire organization is a minefield.

This is what we miss when we try to frame sexual harassment as a matter of a certain perpetrator, or a certain act or even a certain organization. Monsters breed in silence and shadow, and though we may be revolted by the ones we do occasionally bring to light, punishing or reviling them does nothing about the wider problem—which is our complicity, our participation in cultures that exalt men and feed off female humiliation.

Harassment isn’t an individual problem; it’s a problem inflicted by communities, either because the members participate in the violence or because they’ve learned to stay quiet as a means of self-defense. So, while it’s fun to point at Ailes and Fox News, we should also keep in mind that what we’re seeing is not unique, and maybe not even that special. We should look around at our own communities, and ask where the shadows have fallen and who might be getting hurt, just out of sight.

This article was originally posted at InTheseTimes.com on August 26, 2016. Reprinted with permission.

Sady Doyle is an In These Times Staff Writer. She also contributes regularly to Rookie Magazine, and was the founder of the blog Tiger Beatdown. She’s the winner of the first Women’s Media Center Social Media Award. She’s interested in women in pop culture, women creating pop culture, reproductive rights, and women’s relationship to the Internet and the Left. You can follow her on Twitter at @sadydoyle, or e-mail her at sady@inthesetimes.com.

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This Labor Day, Thank Unions For Boosting Wages

September 5th, 2016 | Bryce Covert

Bryce CovertLabor Day is now seen as the official end of summer and a day off (at least for those who actually get paid holiday leave) to grill or go to the beach one last time. But when it was originally conceived as a federal holiday, it was as a concession to the labor movement after bloody union unrest that left 30 striking workers dead. It was meant as a day to celebrate the efforts and sacrifices of unionized workers.

A shrinking share of Americans are union members today. But the benefits brought about by the union movement are still just as strong, particularly when it comes to workers’ pay.

CREDIT: AP Photo/Bryan R. Smith

CREDIT: AP Photo/Bryan R. Smith

Being in a union is particularly helpful for marginalized groups that tend to be paid less than white men. A new report from the Center for Economic and Policy Research found that black union workers earn wages that are, on average, 16.4 percent higher than black workers who aren’t in a union. The same is true for women: a report from the Institute for Women’s Policy Research found that women in a union earn 30.9 percent more than women who aren’t unionized.

CREDIT: Dylan Petrohilos

CREDIT: Dylan Petrohilos

Unionization also yields salary benefits for white men, who get a 20.1 percent boost for being in a union. But the wage-boosting power of unions has been hampered as the share of workers who belong to one has declined. In 1983, the earliest year the Bureau of Labor Statistics has data for, 20.1 percent of the workforce belonged to a union. Today that share has been cut nearly in half, down to 11.1 percent.

CREDIT: Dylan Petrohilos

CREDIT: Dylan Petrohilos

That’s hurt everyone’s wages, not just unionized workers. The wage-boosting power of unions usually spills out into other workplaces because they set standards that everyone ends up adopting. A new report from the Economic Policy Institute found that for men working in the private sector who aren’t in a union, their weekly wages would be about 5 percent higher if union membership had stayed at the same rate as it was in 1979. That would mean an extra $2,704 per year on average. Non-union women would also benefit, but the impact would be smaller- a 2 to 3 percent increase in wages- because women have historically been a much smaller share of union workers.1-7CCL6l2MCZiQP3S-rXrB4Q

The drop in union membership, and the subsequent erosion of the wage benefits for all workers, has played a role in widening wage inequality, holding down pay at the bottom of the scale but less so at the top. In fact, other researchers have found a strong correlation between the fall of union power and the rise of income inequality.

This article was originally posted at Thinkprogress.org on September 5, 2016. Reprinted with permission.

Bryce Covert  is the Economic Policy Editor for ThinkProgress. Her writing has appeared in the New York Times, The New York Daily News, New York Magazine, Slate, The New Republic, and others. She has appeared on ABC, CBS, MSNBC, and other outlets.

 

 

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Why Supreme Court Nominations Are One of the Most Important Issues for Working People

September 2nd, 2016 | Kenneth Quinnell

Kenneth QuinnellThere’s a lot at stake in the 2016 presidential election. While U.S. Supreme Court nominations may not be the most headline-grabbing stories that come out of a presidency, they probably should be. With Supreme Court justices serving for life and having significant power in interpreting laws that affect our daily lives, the importance of court appointments cannot be overstated.

This election, in particular, could shape up to be one of the most important elections in terms of shaping the court in American history. After Antonin Scalia’s death earlier this year, Republicans in Congress have sworn to prevent a replacement from being chosen until after the election and have stalled President Barack Obama’s nomination of Merrick Garland for more than 150 days. In all likelihood, it will be up to the winner of the 2016 presidential election to choose Scalia’s replacement, be it Garland or someone else.

But that’s not the end of the story. According to a 2006 study by the Harvard Journal of Law and Public Policy, the average retirement age for Supreme Court justices is 78.7. As of the beginning of the next president’s term, three of the nine justices will be older than 80. Another will be 78. While those justices seem healthy and committed to staying on the court for the near future, Scalia seemed the same way before passing away at 79. It’s not outside the realm of possibility that the next president could literally appoint a majority to the court, especially if elected for a second term.

It isn’t necessarily the case that the appointment of one or two new justices will make a significant shift right away, but over time, replacing Scalia with a justice that is less of a right-wing ideologue has the potential to reshape many areas of American law—and, in particular, much of the law surrounding the rights and lives of working people. Here are six reasons that Supreme Court nominations are one of the most important issues in the 2016 elections:

1. Gerrymandering: With a case already moving its way through the courts, this one could come up soon. And it’s a big one. Ever wonder why the country keeps voting for Democrats for president, but Republicans control Congress? A key reason is gerrymandering, the process of drawing the district lines for congressional seats for partisan advantage. Currently, 55% of congressional districts were created to favor Republicans, compared to 10% drawn in favor of Democrats. That’s why, in 2012, when Barack Obama won re-election and a majority of votes for congressional seats went to Democrats (50.59%), Republicans managed to somehow get a significant majority of House seats (53.79%). In that cycle, 1.37 million more Americans voted for Democrats, only to see Democrats end up with 33 fewer seats in the House. If one spends any time reading constitutional law, they’ll find that the precedent is pretty strongly against this type of gerrymandering. A court appointed by Hillary Clinton would likely frown heavily on this type of manipulation of the electorate.

2. Voting Rights: In 2013, the court issued a ruling that shocked President Obama, legal scholars, civil rights groups and historians. The conservative majority on the court gutted the enforcement mechanism for the Voting Rights Act. This was almost immediately followed by states that were previously required, based on a history of discrimination, to get Department of Justice approval for changes to voting laws, passing a series of laws that made it harder for many, particularly African Americans, to vote. Republicans passed laws shortening voting hours, eliminating early voting and making it harder to register and harder to vote, among other new obstacles to people exercising their right to vote. Many of these laws have been rejected by courts, and it’s likely that the Supreme Court would look very negatively on them.

3. Citizens United: The court ruled that corporations can spend as much as they want to influence elections, as long as they spend it independently of campaigns. This led to tons of money flowing into elections and the creation of super PACs. Clinton wants this ruling overturned and said she’d appoint justices that would do so. Trump’s on the other side. Clinton-appointed justices are likely to take a stricter look at other attempts by corporations and the wealthy to have more influence on elections than the rest of the electorate.

4. Corporate Influence in Supreme Court Cases: A recent study found that between 2009–2012, the one entity most likely to get a hearing at the Supreme Court, out of all petitioners, was the Chamber of Commerce. The court was not only more likely to hear cases championed by the chamber, it was more likely to decide in favor of the corporate interests the chamber supported. The court also made it harder for citizens to engage in class-action lawsuits, making it harder for citizens to sue corporations like Comcast or Walmart for hurting working people or consumers and making it less likely those working people and consumers would win cases before the court. Additionally, in the notorious Hobby Lobby case, the court allowed some corporations a religious exemption, allowing them not to provide insurance coverage for contraception. Other anti-working people decisions in recent years involved making it easier for judges to dismiss cases earlier, without going to trial, and requiring some consumers to submit to arbitration, rather than going to court.

5. Workplace Fairness: A series of 5–4 decisions during the John Roberts Court era have come down against working people and their rights on the job. These rulings will be ripe for challenges once Scalia’s seat on the court is filled. Among the key rulings that are under scrutiny are those that make it harder to sue in cases of pay discrimination, make it easier to retaliate against and fire employees who report job bias claims, make it harder to prove age discrimination on the job, weakened the Family and Medical Leave Act, made it easier to promote “right to work” at a national level, weakened overtime protections, made it easier to dismiss wage theft claims and made it easier to fire public employees for public statements made in the course of their duties.

6. Deportations: Earlier this year, the court effectively killed an executive order from Obama that would have shielded as many as 4 million undocumented immigrants from deportation. It will likely be considered again under a new court.

Any number of other issues that affect working people could also come before the Supreme Court, including, but not limited to: education funding, Medicaid expansion, public funding of elections, solitary confinement of inmates, prison overcrowding and many other issues.

This blog originally appeared in aflcio.org on August 30, 2016.  Reprinted with permission.

Kenneth Quinnell: I am a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, I worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  My writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.  I am the proud father of three future progressive activists, an accomplished rapper and karaoke enthusiast.

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Congresswoman Will Introduce First-Ever Bill To Get Rid Of Salary Histories

September 1st, 2016 | Bryce Covert

Bryce CovertWhen Congress gets back from recess, one of the first items on Rep. Eleanor Holmes Norton’s (D-DC) agenda will be salary histories.

She, along with co-sponsors Reps. Rosa DeLauro (D-CT) and Jerrold Nadler (D-NY), will introduce the first-ever bill to ban employers from asking about applicants’ prior pay before making an offer.

The bill is aimed at closing the gender wage gap, which means the average woman working full-time, year round makes 79 percent of what a man does and women of color make even less.

Norton has a long history of working to end the wage gap, from her time enforcing equal pay laws while chairing the Equal Employment Opportunity Office to introducing and sponsoring equal pay legislation in Congress. Yet even she is somewhat new to the issue of salary histories and was inspired by a recent law that passed in Massachusetts banning their use.

“It was not instinctive to me to understand that asking an applicant for prior history could have a lifelong discriminatory affect,” she told ThinkProgress. But, she added, “All you need to do is think five seconds about it and you understand it.”

The issue is that women and people of color start out being paid less, a disparity that only compounds if their next job’s pay is based off of their prior pay. Women make less than men in their first jobs, a gap that is actually increasing, and then continue to earn less in virtually every occupation and even if they get more education.

Rep. Eleanor Holmes Norton (D-DC) at the DNC. CREDIT: AP Photo/J. Scott Applewhite

Rep. Eleanor Holmes Norton (D-DC) at the DNC. CREDIT: AP Photo/J. Scott Applewhite

“If this disparity can begin from the moment you go to your first job, and it follows you throughout your career, it will never be rectified and the wage gap itself will never be rectified,” Norton said. “It is a hidden form of discrimination that many employers may think is reasonable to ask and may not understand the discriminatory effect.”

There is always room, of course, for employers to ask questions of applicants to determine who to hire and who will be a good fit. But Norton doesn’t think this one lives up to that scrutiny. “What somebody earned before does not go to merit… It doesn’t tell you how that employee, for example, should be judged relative to other employees,” she said. She noted it may even be hampering men, who would also be protected under the new bill.

The idea of eliminating salary histories has quickly gained prominence. Massachusetts passed its bill in the beginning of August, and a few weeks later a similar bill was introduced in the New York City council. Now it’s poised for federal attention.

For Norton, it’s a matter of halting a pattern that’s keeping pay disparities in place. “People of color and women never break the chain of discrimination, because it’s built in,” she said.

This article was originally posted at Thinkprogress.org on August 30, 2016. Reprinted with permission.

Bryce Covert  is the Economic Policy Editor for ThinkProgress. Her writing has appeared in the New York Times, The New York Daily News, New York Magazine, Slate, The New Republic, and others. She has appeared on ABC, CBS, MSNBC, and other outlets.

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