August 12th, 2015 | Gary Phelan
Twenty-six years ago, Joseph Garrison, the senior partner at the law firm where I worked in New Haven, CT, asked me to speak to a potential client who claimed he was being discriminated against in his job because of his multiple sclerosis. As a new associate and a relatively recent law school graduate, I had not yet handled any clients on my own. However, Joe enthusiastically supported my idea of carving out a niche in the area of disability discrimination in the workplace, and this potential client provided the first opportunity for my first solo flight.
After hearing more details about how the potential client’s thriving career with this employer had stalled after his MS diagnosis, I suggested that we meet for a consultation. “Are you accessible?” he asked. “Absolutely,” I confidently replied, since our law office in New Haven was less than one block off the exit from the I-91 Highway and we had plenty of parking behind our office.
As I eagerly awaited the arrival of my first ADA client, the office manager stormed into my office and said, “Your new client is outside in the parking lot and he is very upset.” When I went outside, I saw that he had arrived in a large van with a lift and used a wheelchair. “I thought you said you were accessible,” he angrily asked. As I looked at the steep staircase to the three-story brownstone building where our offices were located, I realized that perhaps there was more that I needed to learn about disabilities besides case law and legislative history.
Over the past 25 years, I have represented over 750 individuals with disabilities in litigation and negotiations. I co-authored an ADA treatise, wrote too many supplements to the treatise, and read hundreds of ADA cases. I taught disability law for six years as an adjunct law school professor. I spoke about the ADA at over 100 conferences.
Therefore, when asked to say something to employment law practitioners about the ADA’s 25th Anniversary, I decided that the best contribution I could make – besides letting everyone know what accessibility means – would be to share what I have learned that you will not read in a case or in a treatise.
25 LESSONS LEARNED ABOUT THE ADA
- ADA cases require more interaction with other laws than any other law governing the workplace. ADA cases may involve issues under the Family and Medical Leave Act (“FMLA”), Social Security Disability Insurance law (“SSDI”), state workers compensation laws, the Genetic Information Non-Discriminate Act (“GINA”), the Employee Retirement Income Security Act (“ERISA”), the Pregnancy Discrimination Act (“PDA”) and the Affordable Care Act (“ACA”). To handle ADA claims effectively, you need to become familiar with these other laws.
- The Job Accommodation Network continues to be the best source of information about workplace accommodations. It’s a free service of the U.S. Department of Labor’s Office of Disability Employment Policy. This story illustrates its value. A client of mine recently went into a meeting with her two supervisors and two HR representatives to discuss her request for an accommodation for an impairment that is relatively difficult to accommodate. I provided her with a copy of JAN’s Fact Sheet which described both the impairment and the possible ways to accommodate it in the workplace. I advised her to bring four copies of the three-page factsheet to the meeting. She only had to distribute two copies – two attendees brought their own copy of the same fact sheet. All five of them proceeded to brainstorm about what accommodations would most likely be effective – with the JAN fact sheet providing the road map.
- Employers that make some attempt to accommodate an employee with a disability are much more likely to prevail at summary judgment motion in a failure to accommodate case. For example, in Noll v. IBM, (2d Cir. May 21, 2015), a software engineer who was deaf used several accommodations provided by IBM, including on-site and remote ASL interpreter, communication access real-time translation (“CART”), internet-based real-time transcription and video relay series. The Court upheld the dismissal of his claim that IBM failed to accommodate him because they refused to provide that all internal videos be captioned and all audio files have transcripts at the same time the videos were posted. The Court reasoned that when the “employer has already taken (or offered) measures to accommodate the disability, the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is ‘plainly reasonable.’”
- Joe Garrison used to say that “a good job is better than a good lawsuit.” The adage applies to the ADA more than any other employment law statute. A plaintiff’s lawyer should do everything he or she can to keep the person employed – if necessary, with a reasonable accommodation. The job market for persons with disabilities is dismal.
- The ADA Amendments Act of 2008 expanded the scope of the definition of disability. However, the employee still must demonstrate that they meet the definition of disability. I have heard some practitioners say that now almost every impairment is covered under the ADA. They are mistaken. For example, in Neely v. PSEG Texas, Ltd., 735 F. 3d 242 (5th 2013), the Court observed that the ADAAA “in no way eliminated the term “disability” from the ADA or the need to prove a disability or a claim of disability. Although “the ADAAA makes it easier to prove a disability, it does not absolve the party from proving one.” Also, in Felkins v. City of Lakewood, 2014 U.S. App. LEXIS (10th Cir. 2014), the court held that although the standard for proving that one has a “disability” is lower than it used to be, an individual must still show that one has an impairment that substantially limits a major life activity. The plaintiff did not present adequate evidence that her avascular necrosis substantially limited any of her articulated major life activities (walking, standing, lifting, normal cell growth or circulatory functions).
- The reasonable accommodation requirement is not a “sliding scale” that varies based on the employee’s performance or personality. Employers continue to be both more flexible and reasonable in cases of “stellar” employees while often making little effort to accommodate an average or poor performing employee. As a result, many ADA cases that have to be litigated will involve employees whose performance ratings are average.
- The ADAAA changed the law to say that when determining whether or not a person has a “disability” you look at them without the use of a mitigating measure. Due to medical and technological advances, there will continue to be mitigating measures that are developed and, for those that currently exist, improved. Therefore, mitigating measures will become a bigger issues in ADA matters in the future.
- Retirement is gradually becoming a thing of the past. As employees live longer they are working longer – by choice or necessity. The older someone gets, the more likely they will develop medical issues or impairments. As a result, there will be an increase in the number of ADA matters due to our aging workforce.
- Employees are now likely to be more open about their hidden impairments – even when not seeking an accommodation. That could make those employers more vulnerable to termination. However, employers are starting to realize that the positive effects of an impairment may provide the individual with an advantage in a specialized positon or field. For example, 35% of entrepreneurs in America have dyslexia. Individuals on the Autism spectrum often excel in technical fields. Rather than discriminating against them, some progressive employers are recruiting them and adapting their work environments to help them thrive.
- While the ADAAA has expanded the scope of who may be covered under the ADA, it has also led to an expansion of the length of job descriptions. I am increasingly seeing very long job descriptions which include tasks which are rarely, if ever, performed. The purpose of a job description is not to improve the employer’s odds of winning a summary judgment motion. It also can be very transparent and can backfire.
- Unlike other discrimination cases, ADA cases provide the plaintiff’s lawyer with an opportunity to persuade the employer. Employers rarely acknowledge that they discriminated against an employee because of their race or gender or that an employee was sexually harassed. However, the same employer may be willing to acknowledge that they acted out of fearing or lack of knowledge about the medical condition or that the condition can be accommodated.
- Despite the ADAAA, many judges still rely on pre-ADAAA case law and conclude that a person did not meet the definition of a “disability.” Never assume that either the court or defense counsel is familiar with the ADAAA’s changes.
- Attorneys should focus less on the name of the employee’s disability and more on how it effects the employee on a day-to-day basis.
- The reasonable accommodation process is a two-way street. Employees must be willing to disclose their disability. Although the employee does not need to provide their entire medical file, they need to be willing to provide enough information to demonstrate that she has a disability and/or is able to perform the essential functions of the job, with or without an accommodation. If she does not provide enough information, she risks having a court say that her failure to provide enough information obstructed the ADA’s interactive process.
- When an employee requests an accommodation for a disability, the Third Circuit’s decision in Taylor v. Phoenixville School District, 184 F. 3d 296 (3d Cir. 1999) provides the best guidance on how an employer should respond to the request. According to Taylor, an employer can show that it exercised good faith in the interactive process in a variety of ways, such as (1) meeting with the employee seeking an accommodation, (2) requesting information about the employee’s condition or limitations, (3) specifically asking the employee what he or she wants, (4) sharing some indication that the employee’s request was considered, and (5) offering and discussing alternative accommodations when the one requested was too burdensome.
- As medical insurance costs continue to escalate, employees whose medical conditions require substantial costs will be more vulnerable. I have found that towards the end of the year when employees find out how much their health insurance rates will increase, the number of calls I get from potential ADA clients rises. Also, there will be an increase in the number of ADA charges by employees who have an association or relationship with someone – such as a spouse or child with substantial medical expenses that are covered under the employer’s health insurance plan.
- Due to the expansion of the definition of the ADA, employees who fall outside the scope of the traditional definition of disability may be covered. For example, women with pregnancy-related medical conditions will be covered in some circumstances. Accommodations and flexibility tend to make everyone’s lives better. For example, when a building owner installs a ramp due to the requirements of the ADA’s Title III Public Accommodation section, parents using strollers and older individuals with limited mobility also benefit.
- Employees seeking accommodations should avoid getting in “email wars” with the employer. Appeals to guilt or threats of lawsuits are not effective. Telling the employer what the employer “must” provide usually fails. Suggest accommodations but acknowledge that the employer has the final say as to what, if any, accommodation will be provided. Offer to meet with the employer. Provide the doctor’s contact information and invite the employer to speak to him or her. Try to persuade the employer that the accommodation will “pay for itself.”
- Plaintiffs’ lawyers must familiarize themselves with the impairment. That does not just mean googling medical conditions about which they have never heard. Start with websites like WebMD. Don’t assume, for example, that you know about multiple sclerosis because a friend has it. What is the diagnosis? What are the symptoms? Is it chronic? Does the condition tend to deteriorate over time? How can it be accommodated?
- Accommodation requests that involve technological advances and/or progressive workplace changes will continue to be a challenge for plaintiffs when litigated in court. Don’t assume that our judiciary is up to date on the cutting-edge trends in the modern workplace.
- Employees seeking accommodations are not required to use the “magic words” of reasonable accommodations when seeking an accommodation. They are only required to request some kind of change in their work environment due to their impairment. Saying “I can’t do this anymore” or “I need help” might be enough.
- Employees are not required to disclose medical records or any other information to show that they are entitled to an accommodation unless and until the employer asks them to do so. Defense counsel continue to often claim that the employee was not covered by the ADA because they never provided any documentation of the condition – even though the employer never asked them to do so.
- GINA will start to play a much more important role as the cost of genetic testing decreases and health care costs continue to escalate. Also, due to the prevalence of social media, employers have access to much more information about employees’ personal lives as well as medical conditions which the employee’s parents or family members may have. I tell my clients to assume that their employers are familiar with whatever they have posted on social media. For example, if they post a photo from a 5K race to raise funds for breast cancer research and post a photo saying they ran in the race to honor their mom, a breast cancer survivor, assume their employer might be concerned that they are likely to develop breast cancer.
- The medical profession continues to be a major problem when navigating the ADA. Attorneys should consider options like drafting a list of practical questions or scheduling an appointment with the doctor and paying them for their time. Attorneys need to realize that physicians are very busy, do not like “paperwork” and are in the midst of a transformation of their industry. The problems I have encountered with doctors include letters that are (1) illegible, (2) only says if the employee can or cannot work, (3) tells the employer what they have to do for the employee, (4) have no clue about the patient’s job duties and/or (5) vacillates to avoid taking any definite position. The problems with letters from employees’ doctors I have encountered include (1) illegible, (2) do not take into account the employee’s job description, (3) assume that any risk is a “direct threat” and/or (4) make stereotypical judgments.
- The ADA will continue to be the most creative and exciting area of employment law. The law continues to evolve. Problem solving skills are paramount. Medical and technological advances continue to alter the terrain. As a result of the passage of the ADAAA, the focus on the law is back to where it was intended – on whether the individual with a disability can do the job with or without an accommodation. Be willing to take risks and make new law.
Gary Phelan is a shareholder at Mitchell & Sheahan, P.C. He represents employees and employers in a wide range of matters, including disability discrimination. He is the co-author of Disability Discrimination in the Workplace (West Group). Gary was selected by peer review in Best Lawyers in America (1995-2014). He has written and lectured on a wide range of employment-related topics. Gary taught disability law, employment discrimination law and alternative dispute resolution as an adjunct professor for six years at the Quinnipiac University School of Law.
He often serves as a commentator on employment law topics and has appeared on ABC’s Good Morning America, CNN, NBC Nightly News, CBS This Morning, CBS Evening News, Fox Business News, Court TV and MSNBC. He previously served on the Executive Board of the National Employment Lawyers Association (“NELA”), was president of the Connecticut Employment Lawyers Association and was the co-chair of NELA’s Disability Rights Committee. He is the Chair of the Connecticut Bar Association’s Labor and Employment Section.
Gary is on the Board of Directors of A Better Balance and Smart Kids with Learning Disabilities. He is also on the Board of Advisors for the New York office of Disability Rights Advocates.
Gary graduated from Siena College and Albany Law School.
August 12th, 2015 | Bruce Vail
BALTIMORE—Boosters of the Maryland horse racing industry cheered earlier this year when Baltimore’s annual Preakness Stakes attracted a record-breaking crowd of more than 130,000. The huge crowd thrilled to the victory of the bay colt American Pharaoh, who would go on to win the Triple Crown, and a place in thoroughbred racing history. At the betting windows, a total of $85.161 million was wagered, another record breaker in the 140-year history of the race.
But there’s a dark side of Baltimore’s sports and entertainment complex: Local residents toil at low-wage jobs to support the huge venues and the extravagant incomes of out-of-town performers, whether those performers are football players, rock stars, or even horses (who, of course, don’t pocket their own pay).
That disparity was on full display on August 4 as union members and their supporters rallied at a gritty Baltimore street corner to protest union busting by Maryland Turf Caterers, a unit of the horse racing empire of Canadian billionaire Frank Stronach, which owns the Preakness track, as well as other tracks in Maryland, Florida, Oregon and California.
Union workers at the company are fighting off concession demands in contract bargaining that would make most workers ineligible for company healthcare coverage (and raise costs for the rest), end retirement benefits and cut back on overtime pay, says Margaret Ellis, an organizer for UNITE HERE Local 7.
Those workers are a group of about 40 cooks, servers, bartenders, porters and concession-stand attendants who alternate between assignments at the Preakness’ Pimlico Race Course and nearby Laurel Park, both owned by the Stronach Group.
Louis Jones, who works as a porter for Maryland Turf Caterers for over 20 years, says his job quality has declined, with his hourly wage stuck at $9.35 for seven years and Maryland Turf Caterers doing away with the periodic bonuses that once made the job more livable. The workers typically earn $9 to $11 an hour and have not seen any negotiated pay raises since the old contract expired in 2008, Ellis says.
“In some ways, it’s the same old story,” remarks Roxie Herbekian, President of Local 7. Local governments shower benefits on businesses like Stronach with the promise of creating jobs and economic prosperity, yet many of the jobs pay so poorly that they trap workers in a cycle of near-poverty, or worse. In Stronach’s case, the company benefits from elaborate state-sponsored schemes to subsidize the Maryland horse racing industry, with little or no benefit trickling down to the low-income workers who live in the neighborhoods surrounding the racecourses, Herbekian says. The Maryland Racing Commission, for example, collected about $48 million last year in a special gambling tax to distribute to the state’s racetracks, with the money dedicated to plumping up purses, or for improvements to track properties.
The site of this week’s demonstration provides a case in point. The sprawling Pimlico complex borders several of Baltimore’s segregated residential neighborhoods. At one end is the affluent Mt. Washington neighborhood, a leafy, mostly-white enclave where few track workers can afford to live. At another end is Park Heights, a dreary and economically depressed area populated by low-income African Americans, including some of the track workers. Tuesday’s demonstration took place at the corner of Park Heights Ave. and Belvedere, with the gigantic Pimlico grandstand dominating the view to the east, and boarded-up storefronts, run-down residences and dirty streets spreading out to the west.
“They think this is a hoodlum neighborhood, a ghetto neighborhood,” says Jones, who tells In These Times that the quality of life in Park Heights has declined steadily even as billions of dollars in horseracing money has passed though the race track. The neighborhood is desperate for an infusion of decent jobs, Jones says, but has been continually disappointed at lack of action on job creation from elected officials. A plan floated several years back to open a slot machine gambling parlor at Pimlico seemed to offer the promise of local jobs, he says, but the plan was abandoned in favor of a new Caesars Entertainment Corp. casino in the downtown tourist district
For Maryland Turf Caterers, the plan seems to be not to promote good jobs, but to turn them into bad ones by bullying the union workers, Ellis says. “They put me off the property” at the Laurel Race Course earlier this year, she says, which she believes was retaliation for her role as a union organizer. The union is seeking the intervention of the National Labor Relations Board in that incident, and is weighing other actions at the labor board.
Stronach Chief Operating Officer Tim Ritvo defended the company’s labor policies, insisting that the Maryland race tracks were losing money and cuts in labor costs were necessary if the tracks are to remain open at all. “Listen, it’s true the Preakness makes a ton of money. The problem is that we lose money the other 355 days of the year. We lost $5 million last year [in Maryland],” he tells In These Times.
“I’m originally a Democrat from Boston, so I don’t have a beef with unions,” he says. “We have a race track in Hallandale [Florida] where we have UNITE HERE and we don’t have any problems. That’s because it is profitable so we have the money to pay people. We have a hell of a lot more union members in Florida than we do here [in Maryland].”
“We take responsibility—we are not going to take our financial problems out on the workers,” he says. “We only want [the union members] to have the same medical and pension that all of our other workers have. We treat our workers as well as any other company in the same [catering] businesses around here, and a hell a lot of better than most restaurants,” in the area, Rivko says.
“They get a tremendous amount of money from the state,” retorts Local 7’s Herbekian. “So I don’t think the Stronach Group is going to miss a beat if they just pay those workers for healthcare, and a decent raise. These workers are not making some huge salaries that are going to break the bank.”
This blog originally appeared at InTheseTimes.org on August 7, 2015. Reprinted with permission.
Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.
August 12th, 2015 | David Moberg
In the pre-dawn chill of Black Friday 2012, a half-dozen yellow school buses pulled up at a South Side Chicago Walmart store, disgorging a small group of striking Walmart workers and nearly 250 supporters.
Along with strikers and allies in 100 other cities around the country, they had come out that day under the aegis of the year-old Organization United for Respect at Walmart (OUR Walmart), created to give Walmart workers a vehicle to protest their mistreatment—including low wages, skimpy benefits, erratic scheduling and aggressive management suppression of employees’ voices at work.
“Somewhere, somehow, down the line, it’s going to make a big difference,” said Tyrone Parker, a striking night-shift stocker, at that first Black Friday action.
“If you weren’t excited after some of those Black Fridays, you were dead,” says formerUnited Food and Commercial Workers (UFCW) President Joseph Hansen, who started OUR Walmart and the labor-community coalition Making Change at Walmart in 2005. “It was going to be a long haul, but I thought we had no choice.”
After Hansen’s retirement last fall, the union’s 55-member executive board elected Secretary-Treasurer Anthony “Marc” Perrone as the next president. Leading up to the vote, Perrone had questioned the amount of money that had been devoted to the Walmart campaign without gaining any new members for the union, whose membership has declined in recent years. Several sources close to the campaign, not named because they are not authorized to release financial information, estimate that the overall cost had been about $7 million to $8 million a year.
In April, four months into Perrone’s tenure, the Washington Post reported rumors of potential cutbacks to OUR Walmart. In These Times’s sources say the union plans to cut the campaign’s budget by as much as 65 percent.
Sources close to the new leadership say no cuts are planned, only realignments, such as spending more money on advertising and public relations campaigns to highlight Walmart’s faults. At the same time, UFCW will try to parlay the Walmart efforts into “a broader retail campaign,” according to new Executive Vice President Stuart Appelbaum, regarded as an ally of Perrone. This probably will encourage more organizing at other retailers to win contracts and dues-paying members.
As Buzzfeed reported in June, the union also removed two directors of the Walmart effort, Dan Schlademan and Andrea Dehlendorf, in May. Meanwhile, the board of OUR Walmart—five worker-members and the two directors—has sought and received new funding from two progressive donors, according to the director of a funders’ group to which both belong.
Most key labor leaders, whatever their view of OUR Walmart, are unwilling to talk very much, because they hope to continue to work with UFCW on the Walmart campaigns, if possible.
Although OUR Walmart and the Fight for 15 (the Service Employees International Union-backed fast-food workers’ campaign, which has targeted McDonald’s) have been expensive for the unions, they’ve stoked worker and public fervor against two of the mightiest global corporations.
“The union’s biggest accomplishment is the development of OUR Walmart,” says an ally in the campaign who feels that new spirit may be lost in the reshuffling.
How big is too big?
The UFCW largely ignored Walmart when it was a small-town, Southern five-and-dime chain. But as Walmart moved north and west and into groceries, the union had to challenge the mega-retailer to protect its contracts. A massive array of strategies has been tested, with little success: organizing department by department (when butchers at a Texas store voted for the union, Walmart eliminated all its butchers); organizing in Quebec, where laws favor unions (Walmart closed the store); organizing in strong union towns, like Las Vegas (several campaigns failed after supervisors intimidated a majority of workers out of unionizing).
UFCW has also tried educating the public about the high costs of Walmart’s low prices. In 2005, both SEIU and UFCW began publicity campaigns about the corporation’s misbehavior (called, respectively, Walmart Watch and Wake Up, Walmart). Walmart Watch revealed a 2005 internal company memo on how Walmart might cut its already low pay and benefits without incurring bad publicity by increasing the number of part-time workers. Such well-aimed, sharp darts wounded the company’s reputation and may have been a factor in declining profits, although customers have also faulted Walmart for badly stocked, disorganized stores, unattractive produce and poor service.
But these campaigns did not yield union members. By failing to organize the retail behemoth, which provides 8.9 percent of jobs in the sector (which in turn employs nearly 1 in 9 U.S. workers), unions lost power to set wage and labor standards. Since 1983, the percentage of retail workers who belong to unions has declined by half—to 4.4 percent.
When Schlademan started work at the UFCW in 2010 on what would become the new Walmart strategy, he tried to learn from workers and organizers in past campaigns, as he explained in an interview with In These Times in December. First, he concluded, the campaign had to break down the barriers isolating workers from each other, both within and among stores. Second, Walmart workers wanted to be “front and center” in the campaigns and in solving problems. Third, workers had to discover the power of collective action, primarily through strikes, which Schlademan called “probably one of the most liberating things labor does. Striking—just [the act of] striking—helps build leaders.”
Over the next three years, OUR Walmart’s key achievement was mobilizing workers to take direct action against the company. OUR Walmart members challenged management at both their workplaces and at shareholder meetings in Bentonville, Ark., often with work stoppages, sit-ins or similar protests. In the process, effective and committed rank-and-file leaders emerged.
The campaign also won praise for its effective use of online organizing. Organizers and members used the web to move workers into reallife collective protests, build small groups of leaders at individual stores, and arrange local and national direct actions. The online connections produced more direct, horizontal relationships between Walmart workers than in most unions, which have a more hierarchical organization.
OUR Walmart said the campaign was just trying to make Walmart a better corporate citizen, not organize a union. Technically that was true (and tactically necessary, given labor law restrictions on picketing employers for long periods). But in spirit, OUR Walmart resembled a strong minority union, without enough votes to win a formal union and collective bargaining, but with other tools that could be used to solve workers’ problems.
The campaign wrung several concessions from Walmart. Workers won a few pilot programs to reduce inconsiderate scheduling, and a worker-led campaign to “Respect the Bump” yielded better pregnancy accommodations. Accompanied by publicity campaigns attacking the company’s stinginess and its owners’ extreme wealth, worker actions undoubtedly helped prompt Walmart’s decision in April to raise its lowest wages to $9 an hour this year and $10 next year.
Hopes for transforming Walmart—and thereby the whole low-wage economy—rose among supporters.
OUR Walmart is “a little IWW-ish,” Schlademan said in December. In their early 20th-century heyday, the Industrial Workers of the World eschewed contracts in favor of direct action at work. In OUR Walmart, Schlademan sees a similar appetite for militant action and a more vigorous involvement in the collective, horizontal conversation.
At the time, Schlademan said, OUR Walmart was preoccupied with securing its right to exist without being attacked all the time: “Walmart must realize OUR Walmart is not going away.”
But sustaining an expensive campaign like OUR Walmart is difficult with voluntary dues of $5 a month per member. Schlademan has since been cut from the UFCW payroll but is still working with OUR Walmart. And rumors of UFCW withdrawing funds have begun circulating, although a network of progressive donors recently pledged money for OUR Walmart to maintain its work.
If UFCW, the organization’s sponsor, cuts back on OUR Walmart, how will managers—and workers—interpret the move?
Critics of the union’s focus on OUR Walmart believe that broadening the agenda to all retail will spread around organizing dollars more effectively, yielding more unionized shops and more dues-paying members. No organizing is easy, but looking beyond Walmart may provide more realistic targets. In New York—the historic stronghold of the Retail, Wholesale and Department Store Union (now a department within UFCW)—UFCW Vice President and RWDSU President Stuart Appelbaum has overseen successful organizing of clothing boutique workers, such as clerks at the Swedish-owned “cheap chic” H&M stores.
Victory at such companies will bring new members but will not necessarily transform the retail industry the way success at a major chain like Walmart or Home Depot could.
The union will almost certainly maintain some special focus on Walmart. “Nobody wants to walk away from or abandon effort on Walmart,” says one union staffer, who was not authorized to speak with reporters. But the union’s Walmart project “will be a more media-focused campaign,” relying on print and television ads, says the staffer.
Media buys can be very expensive, however. Forbes reported that UFCW “spent six figures” on a Fourth of July ad blitz portraying Walmart as unpatriotic for stashing $76 billion in 15 foreign tax havens. And if past attacks haven’t altered Walmart’s stance on unions, will more exposés do the trick?
On the other hand, the sweeping victories of the 1930s and 1960s in industries from automobiles to healthcare suggest the value of a sector-wide strategy for retail. But can one union take on a sector with 16 million workers?
It starts with the workers
Stephen Lerner is the architect of SEIU’s Justice for Janitors campaign, one of the most successful sector-wide organizing efforts of the past three decades. He argues that, with labor hanging by a thread, most U.S. unions have gone into defense mode—which only occasionally delays further slippage—rather than playing offense using creative, large-scale campaigns.
Though most analysts see the evershifting Walmart campaign as a defensive effort to keep Walmart from driving down labor standards at other, unionized grocery chains, Lerner believes OUR Walmart is an example of a sweeping, innovative effort. “It’s pretty impressive what workers in OUR Walmart have achieved so far,” he says. He notes that strikes have yielded concrete victories and that creative online organizing has allowed workers to help move people into action, not simply to “scream into the void.”
For workers to form a union against the will of an industry or a big company like Walmart requires “an enormous amount of time” to understand the issues, overcome fears, develop leaders, and formulate a “theory of how to beat the company,” which may vary from target to target, Lerner says. Justice for Janitors’ big breakthrough, in a 1988 organizing campaign in Denver, came in part from understanding that targeting building owners, for whom janitorial costs are minuscule, was essential to organizing the small, costsensitive cleaning companies. “There’s not one tactic or secret sauce to take on an entire industry,” he says.
As UFCW revises or expands its organizing mission, it would seem smart to look for ways to apply the strategy and style of work of OUR Walmart—that is, educating and empowering member-organizers and leaders—throughout its retail organizing. That includes recognizing the utility of the internet for real organizing, breaking barriers and building solidarity and expanding open, direct, horizontal lines of communication among members and workplace leaders. It also includes realizing the crucial role of strikes and direct action in building a sense of collective power and communicating with supporters and the public.
OUR Walmart member Tyfani Faulkner, 32, a high school graduate from Sacramento who knew nothing about the labor movement when she took her job, now loves going online to answer questions or solve others’ problems, or to work for legislation or a candidate she favors (most recently, Bernie Sanders). Her “proudest moment,” she says, was participating in a two-hour sit-in at Walmart this past November. OUR Walmart has produced many powerful worker-leaders and vocal progressives like Faulkner who organize effectively—and at no cost.
The emergence of leaders like Faulkner reinforces the urgency of taking seriously Lerner’s key advice, which is as simple as it is often ignored: “You can’t win without the workers.”
This blog originally appeared at InTheseTimes.com on August 11, 2015. Reprinted with permission.
David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at [email protected]
August 12th, 2015 | Leo Gerard
Lacie Little won back last week everything Indiana University Health Inc. took from her – except her job. Her beloved nursing job.
She got back wages and a formal public statement by the hospital corporation saying that it removed the firing from her work record. So she’s un-fired.
But she’s not rehired. The hospital behemoth refused to consider restoring Lacie to her nursing job for seven years, long enough, it hopes, to prevent her from helping form a union there. Despite everything that has happened to her, Lacie hasn’t given up that goal. Now, she’s working for my union, the United Steelworkers (USW), trying to organize nurses.
Indiana University (IU) Health fired Lacie on March 30, three days after she began trying to persuade her fellow nurses to unionize. Lacie wanted her co-workers to join together to collectively bargain with IU Health for the same reason many nurses want to negotiate with their hospitals. They love their profession; they’re devoted to their patients, and they want to help their hospitals be the best that they can be.
IU Health Inc. believed it knew what was best for the bottom line of the hospital system – and that wasn’t a nurses union. So like many employers, it took action to squash the nascent effort by employees to gain a voice at work by organizing. Firing workers for trying to form a union is illegal. But institutions – even ones supposedly dedicated to restoring health or to Catholic theology – do it all the time anyway because the penalties are so very paltry and the fear instilled is so very profound.
Corporations know they can stall an organizing campaign with just the threat of firing. Duquesne University in Pittsburgh recently used this tactic in a startling way. It included in a pleading to the National Labor Relations Board (NLRB) a threat to refuse to rehire for future semesters two adjunct professors who had testified at an NLRB hearing about efforts to organize at Duquesne, which holds itself out as a religious institution. One of the adjuncts described Duquesne’s written threat as bone chilling.
Lacie felt both unnerved and betrayed when the hospital corporation fired her. Her partner was five months pregnant with their second child. She had responsibilities, and the termination left her unsure how she would fulfill them. She could not believe the hospital system she so loved had done this to her.
The doctors and nurses and staff at Indiana University Health endeared themselves to Lacie when her grandfather, Robert Little, was hospitalized at Methodist, an IU institution, just after she graduated from high school. He was admitted to the cardiovascular critical care unit, where Lacie would later work.
Robert Little was having trouble breathing. To distract him, the nurses joked with him. They held his gargantuan hands. The doctor took the time to find out about Robert Little as a person. The physician learned that Robert Little was a union bricklayer who had worked hard all his life and who continued chopping wood as he fell increasingly ill in his 70s. Robert Little would not be happy bedridden, tube invaded, machine dependent.
At that time, Lacie’s mother was a nurse at IU Health. She had worked in its bone marrow transplant unit in the very early days when many patients did not survive. Lacie says her mother taught her an important lesson about that:
“She told me that taking care of someone in their last days and hours of life is an honor. You usher them out. And you can make it a great experience or an awful experience. You can truly take care of the patient and the family. I feel Methodist really did that for my family, took the time to get to know my grandfather and explain things to us. They were able to let him die with dignity. He was clean and warm and not in pain and had his family around him. Everyone has to die. It might as well be in a good way.”
Lacie started work at IU Health when she was just 19 years old. She earned bachelor’s degrees in psychology and biology. Then, while working as a secretary for the hospital system, she returned to college to get her nursing degree. She says she learned: “Nursing is caring for people. Great nurses care for their patients. They don’t just take care of them.”
In 2009, she launched her nursing career in the cardiovascular critical care unit where her grandfather had died. Every day, she challenged herself to care for her patients like they were her grandfather.
The stories she tells show that she reveled in accomplishing that. She talks about caring for an older farmer who had been injured in a tractor accident. At one point as he began to get better, he kept motioning toward his face. Still connected to a breathing tube, he could not talk. She knew he was trying to ask for a shave. Lacie recounts:
“I got some hot water and put some wash cloths in there. I sat him in a reclining chair and leaned him back and said, ‘Here we are at the barber shop’ and gave him a really good shave. He kept touching his face and giving me thumbs up. The shave wasn’t necessary to get him better, but we had fixed all of the acute things, and this was important for helping him feel better. We have to do some things to help them feel good mentally.”
When Lacie began in nursing, the hospital system enabled nurses to help patients feel better. But that changed.
In the fall of 2013, the hospital corporation laid off 800 workers, including Lacie’s mother, who had worked there 25 years. At about the same time, IU Health instituted a management method described as “going lean.” What that meant to Lacie was that the hospital system had the best doctors and nurses and staff but was setting them up to fail at meeting goals like treating their patients like their grandfathers.
“They wanted us to do more with less. And they would say that. Everything was about cost, cost, cost. But we care about patients over profits,” she said. It meant there was rarely time to give a farmer a shave.
Lacie says nurses began talking about being in moral distress, “People were leaving the hospital and going home and crying because they felt they did not take good care of their patients.” They did all the basics. They gave patients all of the medications but had no time to talk to them like they were human beings. “If you are not spoken to, you feel like a specimen, not a person,” Lacie explains. Feeling like a specimen does not help heal.
That’s when the union talk started. Because her father and grandfather were union men, Lacie said family experience had taught her that unions could put workers in a position to get CEOs to listen. “I knew unions were a way to stack up enough people so they were on a level playing field with the CEO,” she said.
Earlier this year, the IU nurses chose the USW to help them organize and began holding informational meetings, three a day, twice a week. Lots of nurses attended. They discussed problems at work and how organizing could be a solution. “People were encouraged because they wanted to do something, not just talk about it,” Lacie says.
In March, Lacie and several other nurses began asking co-workers if they were willing to sign a card petitioning for an election that would determine whether they could form a union.
Lacie was careful to do this only while she was on lunch and other breaks. She cautioned co-workers not to sign unless they too were on a break. She chatted with on-duty nurses but did not take their signatures. Even so, on her third day of doing this, IU Health Inc. officials accused her of accepting signatures from nurses who were on duty.
The hospital corporation suspended her, then fired her just days later. “I was dumbfounded,” she says, “I felt betrayed because I had given my loyalty to IU Health.” She had worked there a decade.
Not long after the hospital system terminated Lacie, the state Health Department issued a report saying the hospital was short staffed and that it adversely affected patient care.
The USW hired Lacie immediately after the firing, but the termination imperiled renewal of her nursing license. She knew if she fought the hospital corporation through the NLRB process and the courts, she would win. But that could take years. And she’d be unable to work as a nurse in the meantime.
So she took the settlement deal. It requires IU Health Inc. to post notices at its hospitals saying that it had rescinded Lacie’s firing and discipline against her and that federal law forbids the hospital corporation from threatening, interrogating, surveilling, disciplining, suspending or firing anyone for attempting to form a union.
Lacie’s firing steeled the commitment of some, who started a Facebook meme saying, “I’ve got a Little fight in me.” But for many others, the firing had the effect the hospital corporation intended. Nurses were fearful, and turnout at union meetings declined.
Studies show the number of illegal firings of union activists increasing and the number of union members in the United States dwindling. Workers like Lacie need legislation to stop it. This time last year U.S. Rep. Keith Ellison (D-Minn.) introduced the Employee Empowerment Act, which would do just that. It could be called Lacie’s Law. But that wouldn’t be fair to the thousands of other workers who suffered as a result of the same illegal corporate union-busting practice.
Lacie insisted on a provision in the agreement allowing her to apply to return to IU Health in seven years because, she said, “I still love the IU Health nurses and doctors and staff.”
This blog originally appeared at OurFuture.org on August 11, 2015. Reprinted with permission.
About the author: Leo W. 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.
August 12th, 2015 | Bryce Covert
After Jake Tapper, host of CNN’s State of the Union, asked Republican presidential candidate Carly Fiorina about Netflix’s announcement that it will offer a year of unlimited paid family leave, the former Hewlett Packard CEO said she opposes any requirement that employers offer their workers paid leave.
“I don’t think it’s the role of government to dictate to the private sector how to manage their businesses, especially when it’s pretty clear that the private sector, like Netflix…is doing the right thing because they know it helps them attract the right talent,” she said. “I’m not saying I oppose paid maternity leave. What I’m saying is I oppose the federal government mandating paid maternity leave to every company out there.”
But the vast majority of private sector employers don’t seem to agree that offering paid leave is the right thing to do. Only 12 percent of workers in the private sector get paid family leave from work. These benefits are also far more likely to be offered to higher-income, white collar workers and not to the low-income workers who may need it the most to be able to afford time off. Just 5 percent of the lowest-paid 25 percent of employees get paid family leave, compared to 21 percent of the highest 25 percent.
Fiorina noted that while she was at Hewlett Packard, the company offered paid maternity and paternity leave. Current online versions of its employee handbook only refer to “several leave opportunities to provide additional time when you need it, including [unpaid] Family and Medical (FMLA) Leave, state family leaves, [and] parental leave” without specifying how much leave employees might get. But in response to a New York Times inquiry in 2013, the company said new mothers get six weeks of full pay under a short-term disability plan with additional weeks at lower pay, while new fathers get just 10 days.
Netflix and other technology companies have made headlines for far more generous leave: Netflixannounced unlimited paid leave for the first year after the arrival of a child, while Google offersfive months and many others offer 17. But they are the exception to the norm. And without a requirement, leave policies will differ wildly from workplace to workplace.
The lack of a federal law requiring maternity and paternity leave makes the U.S. a lonely outlier on the world stage. It is one of just three countries among 185 that doesn’t guarantee new mothers paid time off, while another 70 include new fathers.
Three states have decided to enact their own policies: California, New Jersey, and Rhode Island. And the evidence from those experiments goes against Fiorina’s claim that it would be “ineffective” and “hypocritical” for government to mandate leave when it “hasn’t gotten its basic house in order.” In California, the vast majority of businesses report that the paid leave law had either a positive impact or none at all on profitability, employee performance, and productivity and it helped reduce turnover. In New Jersey, the majority of businesses also say that it hasn’t hurt their finances, while some saw similar benefits.
Paid family leave is generally found to keep women in the labor force and to expand it. The savings in turnover can come to an estimated $89 million a year for the country’s employers. But the lack of paid leave is one of the reasons that the country’s rate of women in the labor force is being far outpaced by other developed countries.
Fiorina has also come out against issues related to women’s equality in the past. She opposes the Paycheck Fairness Act, which is aimed at closing the gender wage gap, and blames the gap on unions and government bureaucracies.
“This blog originally appeared at ThinkProgress.org on August 10, 2015. Reprinted with permission.”
Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.
August 5th, 2015 | Ian Millhiser
Craig James is a former professional football player and longtime sports broadcaster who, in 2012, took time off from his broadcasting career to mount an unsuccessful bid for the United States Senate. During that campaign, according to a lawsuit James filed Monday, he opposed equal marriage rights for same-sex couples, and called upon “Christians” to “stand up” against the advance of marriage equality. Though he briefly worked as a broadcaster for Fox Sports following his campaign, James says he was fired shortly after Fox uncovered his past anti-gay statements.
James now works for the Family Research Council, an anti-gay organization that the Southern Poverty Law Center designates as a “hate group.”
The crux of James’s lawsuit are claims that Fox “discriminated against James because of his religionin violation of the Texas Commission on Human Rights Act.” Yet his complaint (which, admittedly, is only available to the public in a redacted form) cites no actual evidence that Fox’s decision to fire James was motivated by the fact that James identifies as a Christian. Nor does it claim that Fox Sports treated other employees who held similar anti-gay views differently because those employees are not Christian. Rather, James says that “Fox Sports informed James that his short off-the-cuff statement about his beliefs regarding marriage . . . was the sole reason Fox Sports terminated him,” and he does not appear to disagree with Fox’s alleged claim that they were motivated solely by their own opposition to James’s anti-gay statements.
Instead, James attempts a two-bumper bank shot to convert this anti-anti-gay firing into a kind of religious discrimination. James, his lawsuit emphasizes, holds anti-gay beliefs that are motivated byhis religious beliefs, and this, he claims, is enough to protect his job even if Fox would be allowed to fire an employee who made similar statements that were driven by a secular belief.
In other contexts, the Supreme Court has rejected attempts to use cries of religious discrimination to excuse acts of bigotry. Four years after Congress banned whites-only restaurants, for example, the owner of a South Carolina barbecue chain put up a sign protesting that “[t]he law makes us serve n***ers, but any money we get from them goes to the Ku Klux Klan.” He also claimed that the Civil Rights Act of 1964 “contravenes the will of God,” and that he should be exempted from having to follow it because of his religious beliefs. The Supreme Court disagreed, in Newman v. Piggie Park Enterprises, labeling the restaurant owner’s claim “patently frivolous.”
James’s case, however, was filed in Texas court, where the conservative Texas Supreme Court may see things differently than the justices of another era. It also arises under a different area of the law than Piggie Park. James sued under the Texas Commission on Human Rights Act, which, among other things, prohibits discrimination “because of or on the basis of any aspect of religious observance, practice, or belief, unless an employer demonstrates that the employer is unable reasonably to accommodate the religious observance or practice of an employee or applicantwithout undue hardship to the conduct of the employer’s business.”
There is surprisingly little Texas case law interpreting this particular provision. Nevertheless, Texas civil rights law explicitly tracks “the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” so federal court decisions examining similar cases should inform the Texas judges confronted by James’s case. At least one federal appeals court case, however, suggests that employers are not required to accommodate the anti-gay views of their employees, even if those views are motivated by religion.
In Peterson v. Hewlett-Packard Co., the United States Court of Appeals for the Ninth Circuit considered an employee who posted Bible verses that, among other things, said that men who have sex with men should be “put to death.” Admittedly, this is a more egregious case than theJames case, as James was not fired for saying that gay or bisexual men should be executed (when he was later asked about executing gay people, he responded tepidly). Nevertheless, the court inPeterson offered a sweeping dismissal of the idea that an employer is required to accommodate statements that could cause lesbian, gay or bisexual employees to feel unwelcome. It is an undue hardship, the court explained, to inhibit an employer’s “efforts to attract and retain a qualified, diverse workforce, which the company reasonably views as vital to its commercial success.”
James was an unusually visible employee who made his anti-gay statements in an unusually public forum. And James admits that Fox Sports was motivated by similar fears to the ones that concerned the employer in Peterson. He quotes a Fox spokesperson, who reportedly said that James was fired because “[w]e just asked ourselves how Craig’s statements would play in our human resources department” and concluded that “[h]e couldn’t say those things here.”
Nevertheless, the Texas judicial system is unusually conservative, so there is no guarantee that it will not give people like James a special right to make offensive statements about LGBT people with impunity.
This blog originally appeared in ThinkProgress.org on August 4, 2015. Reprinted with permission.
Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
August 5th, 2015 | Bryce Covert
Portland, Oregon’s new bar Loyal Legion doesn’t just offer customers 99 different beer choices. It also requires them to pay zero in tips.
When owner Kurt Huffman opened the bar, he wanted to figure out to deal with a problem plaguing all of his establishments: the nearly impossible search to hire talented staff in the back of the house cooking and prepping food and washing dishes. “I can’t find line cooks anymore,” he said. The search for a single cook takes his team three or four weeks, an eternity in the business. “I’ve got to figure out how to get the kitchen more money so we can keep talent.”
He noted that the cost of living in the city is so high that almost all of his dishwashers and line cooks have to work two jobs to get by. “The system is broken in terms of how people are paid,” he said.
So to create a new pool of money to be able to increase the wages in the back to be comparable with what the people serving customers in the front are making, he eliminated tipping and instead has raised prices by 20 percent — so a beer has gone from $5 to $6. That’s allowed him to increase the minimum pay for the back of the house to $15 an hour, which increases to $18 after three months. The front of the house will also get an $18 minimum wage.
Huffman himself used to work in the back of restaurants, and he noted that the new system allows him to address an “ethical dilemma” he faced when paying those positions less than servers and bartenders who also rake in tips. “I used to work with dishwashers and cooks, and everybody is busting our ass,” he explained.
A growing wave of American restaurants has been getting rid of tipping in favor of a variety of other models. While it started with high-end places on the coasts, it’s now extended to bars like Huffman’s, diners, coffee shops, and barbecue joints. One piece of the reasoning, which Huffman also noted, is that tipping is no longer an expression of gratitude for service but simply a given. “In the olden days, tips were actually an index of quality of service,” he said. “They aren’t anymore. People tip always the same.” In fact, the quality of service only accounts for a percentage point or so change in the size of tips; instead, they tend to fluctuate more on gender, race, and looks.
The no-tip model could also serve as an experiment for how his sit-down restaurants might address a higher minimum wage. Huffman expects a $15 minimum wage requirement will soon be enacted in Portland given that it’s already been passed in San Francisco and Los Angeles, the cityraised the wage for its own workforce to that level earlier this year, and voters will weigh in on an overall hike to that level come November. “I think everybody in the restaurant industry, everybody who’s paying attention, is thoughtful and mindful of how we’re going to address that change,” he said.
His company ChefsTable Group has 16 restaurants, and he estimated that for six of them, that sort of cost increase will be nearly impossible to contend with without other changes. One change he’s considering is adding an automatic gratuity to the bill — perhaps 5 percent — that would go to helping cover that cost, and customers would be able to add what they wanted on top of that.Some restaurants in other cities are instituting higher wages before they even go into effect by eliminating tips and raising prices.
This blog originally appeared in ThinkProgress.org on August 5, 2015. Reprinted with permission.
Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.
August 5th, 2015 | Jack Jenkins
In June, Margie Winters was fired from her job as director of religious education at Waldron Mercy Academy in Merion, Pennsylvania for being public about her same-sex marriage.
“What it was like inside, was like a death,” Winters told a local CBS affiliate in Philadelphia.
But Winters and a band of supporters are refusing to let that be the end of her story, or her teaching career. On Monday afternoon, the former schoolteacher and 50 of her supporters marched to the Archdiocese of Philadelphia’s Center City offices to deliver a petition demanding her reinstatement. She attempted to deliver the hefty box of papers, signed by more than 22,000 people, inside the building, but was denied entry by a security guard.
“Because I’m so threatening,” Winters joked.
Winters has been embraced by outraged local Catholics — and even the mayor of her city — who oppose her firing. Among other expressions of support for the veteran teacher, a group of parentshas formed the organization “Stand With Margie,” complete with a website, a Facebook pagesporting more than 11,000 “likes,” and a GoFundMe campaign that has raised $17,000 for Winters and her wife. In addition, the petition drive was organized by Faithful America, an online progressive Christian advocacy organization that claims over 300,000 active participants.
“Margie Winters’ firing was unjust and contrary to Catholic values, and she should be reinstated immediately,” the petition, addressed to Philadelphia Archbishop Charles Chaput, read. “Please inform the school’s leadership that you will not interfere with their staffing or threaten their status as a Catholic school.”
According to Philly.com, the Archdiocese of Philadelphia has denied it had anything to do with her firing. But Winters disputes this claim, noting she told school administrators when they hired her eight years ago that she was in a same-sex relationship. The only reason she was fired, she says, was because the archdiocese received an anonymous complaint about her sexuality in June — mere weeks before the Supreme Court declare same-sex marriage legal across the country, which Chaput publicly opposed.
“It wasn’t until the archdiocese was notified that something changed,” she told Philly.com. “You can draw your own conclusions.”
Regardless of archdiocese’s involvement with Winters’ termination, the archbishop has said he supports the school’s decision.
“I’m very grateful to the Religious Sisters of Mercy and to the principal and board members of Waldron Mercy for taking the steps to ensure that the Catholic faith is presented in a way fully in accord with the teaching of the church,” Chaput, speaking of Winters, told the Philadelphia Inquirer. “They’ve shown character and common sense at a moment when both seem to be uncommon.”
Winters’ struggle is frustrating for her family and her supporters, but it is by no means unique. Several Catholic schoolteachers and employees have been let go for being “publicly” gay over the past year in Iowa, Massachusetts, Missouri, and Illinois. The firings have sparked sustained protests led by students, teachers, and parishioners, and Catholic communities in California, Ohio, and Florida are pushing back against local Catholic leaders in their states who have threatened to terminate LGBT employees who have public relationships.
Catholic leaders, however, maintain that they have the legal right to discriminate against LGBT people in hiring, citing a 2011 Supreme Court case that expanded the so-called “ministerial exception.” The legal precedent traditionally only allowed religious groups free reign over who they hire for ordained positions, but now gives them to ability to bypass nondiscrimination policies for any position they deem to be a “minister” — including schoolteachers. In addition, Pennsylvania currently has no robust statewide LGBT workplace protection laws, although lawmakers areintroducing bills to change that.
Although the impetus for such terminations is ostensibly Catholic theology, the decision to fire people for being open about their sexuality ultimately rests with administrators and Catholic officials. Last month in New York City, for example, a newly-hired organist at a Catholic churchstoked controversy by openly posting about his marriage to another man on Facebook. But while an organist was fired for doing the exact same thing in Illinois, the archdiocese of New York has yet to issue a statement on the matter.
The decision to fire Winters is also oddly timed, coming just two months before a planned visit by Pope Francis to Philadelphia. Pope Francis has not changed traditional Catholic teaching opposing homosexual acts, but famously declared “Who am I to judge?” when asked about gay priests in 2013, and has asked the church to become less “obsessed” with same-sex marriage and abortion.
This blog originally appeared in ThinkProgress.org on August 4, 2015. Reprinted with permission.
Jack Jenkins is the Senior Religion Reporter for ThinkProgress. He was previously the Senior Writer and Researcher for the Faith and Progressive Policy Initiative at the Center for American Progress, and worked as a reporter and blogger for the Religion News Service. His stories and analysis have appeared in the Washington Post, Huffington Post, Real Clear Politics, National Catholic Reporter, and Christian Century, among other publications. Jack got his bachelor’s in history and religion/philosophy from Presbyterian College and holds a Master’s of Divinity from Harvard University. He also plays harmonica and ukulele.
August 5th, 2015 | Mark Dudzic
New York’s State Assembly in May overwhelmingly passed a bill to establish a single-payer-style health care system.
The bill isn’t expected to pass the Senate or be signed into law anytime soon. But getting it through, with unprecedented support from big unions, shows that state-level campaigns are still a fertile ground for health care justice organizing, despite the recent setback in Vermont.
The New York Health Act would eliminate private health insurance and cover all New Yorkers in a publicly financed, universal plan with no patient premiums, deductibles, or co-payments.
“We should be able to go to the doctor when we need to, without worrying whether we can afford it,” said its sponsor, Assembly Member Richard Gottfried. “We should choose our doctors and hospitals without worrying about network restrictions.”
Gottfried has led a decades-long effort in the Assembly for universal care. But the difference this time was the number of major unions actively supporting it. They gave the bill a big boost.
More unions onboard
Traditional single-payer advocates like the New York State Nurses (NYSNA) and the New York City stagehands’ union, IATSE Local 1, have backed Gottfried’s bills before.
This year marked the first time they were joined by such influential statewide unions as Service Employees (SEIU) 1199 and New York State United Teachers (NYSUT/AFT).
Those unions’ lobbying efforts helped convince legislators the bill was politically viable. And their financial support was crucial to hiring community organizers in key regions.
The unions also participated in statewide hearings in January and mobilized members for Albany lobby days in May.
“The employer-based system of providing health care is eroding, covering a smaller percentage of New Yorkers each year,” said 1199 SEIU member Malcolm Olaker, a Poughkeepsie nursing home worker, at a lobby day.
“In a just society, all people are entitled to basic health care. That’s why we are all here today from different walks of life: patients, health care providers, caregivers and community members, supporting single payer health care.”
Advocacy groups Healthcare NOW, Single Payer NY, and Physicians for a National Health Program were able to capitalize on the momentum to play much larger roles than in previous years.
Obamacare didn’t fix it
Labor support for the initiative grew so strong because of how the Affordable Act has panned out. The much-heralded federal law has done little to ease bargaining-table pressures for health care concessions.
“Our members working in schools and college campuses want our state’s poorest students and their families to have access to quality health care services, so they arrive at school each day healthy and equipped to learn,” said Anthony Pallota, NYSUT executive vice president, at the January hearing.
“Our retirees, who tend to be our most medically vulnerable and fragile members, want affordable prescription medication and access to immediate health care.”
Despite the federal mandates, employers are still trying to offer less coverage and shift costs onto the backs of workers and retirees.
Public sector health benefits are a particularly tempting target, as states and municipalities wrestle with budget shortfalls. Politicians exploit a “politics of resentment” among private sector workers who’ve already seen their own benefits cut.
Another factor spurring unions to action is the looming 2018 implementation of the ACA’s “Cadillac tax.” This 40 percent excise tax will apply to all health insurance plan charges over $10,200 per year for individual coverage and $27,500 for family coverage.
These caps are set to rise at a much slower rate than the costs of health insurance, which means nearly all union-negotiated plans will eventually face the choice between radical cuts to coverage or paying the hefty tax.
Already, the tax has been a major issue in recent union negotiations with Boeing, oil refiners, and port operators.
State by state
While most health care justice activists would prefer a national, Medicare-for-All reform along the lines of Rep. John Conyers’ H.R. 676, in recent years the momentum has been growing for single-payer-style reforms at the state level.
At a time when any path to sweeping federal action appears closed, groups like the Labor Campaign for Single Payer and Healthcare NOW have supported state campaigns as a way forward.
The ACA may help facilitate these efforts—because, beginning in 2017, the federal government is authorized to grant states “innovation waivers.”
Such a waiver frees the state from the requirement to establish a private insurance exchange. Instead, it can reallocate federal subsidies for private insurance and Medicaid into funding its own plan.
To be approved, the state’s plan must meet the law’s minimum requirements for coverage and cost-sharing, and cover at least as many residents at a cost no higher than what the federal government would have assumed.
“We believe that a victory for a publicly financed, universal plan in one or more states can provide a powerful impetus to the movement for national health care,” said Ben Day, executive director of Healthcare NOW.
State efforts suffered a setback when Vermont’s governor announced in December that he was suspending plans to implement Green Mountain Care, the single-payer-style program to realize the 2011 law that made health care a right.
Shumlin was scheduled to submit a financing proposal to the legislature in advance of the plan going into effect in 2017. Instead, he announced the health care for all was “just not affordable”—despite the fact that even his own economic estimates showed Vermonters would spend less for health care than they currently do.
Gerald Friedman, a University of Massachusetts economist, called Shumlin’s decision “political, not economic.” Nonetheless, single-payer opponents seized on the Vermont debacle as proof that universal health care at the state level is unworkable.
But the book isn’t closed. The law is still in effect, and hundreds have taken to the streets to demand its implementation.
The Vermont Workers’ Center—which maintains that the state still has an obligation to implement the law—issued its own financing plan, which it submitted to the legislature for consideration.
All health care justice campaigns, if they get far enough, will be forced to wrestle with the same conundrum Vermonters are facing. The closer they come to victory, the greater the resistance from the medical-industrial complex and free-market fundamentalists who viscerally oppose any form of social insurance.
In California, the legislature twice passed single-payer bills in the 2000s, only to have them vetoed by Republican Governor Arnold Schwarzenegger. Once Democrat Jerry Brown was elected governor, the movement couldn’t even find a bill sponsor.
California activists are gearing up for a multi-year project to muster the substantial funds and organizers it will take to win (and then defend) a single-payer-style system through the state’s initiative process.
Organizers in the strong, labor-backed campaigns in Oregon and Washington are also looking to use the initiative process if pending legislation founders. Oregon passed a bill to fund a study of alternative plans to ensure universal coverage.
New York will surely experience the same political challenges as Vermont and California. Nonetheless, the bill’s passage with such a big majority and the outpouring of labor and community support have given the national movement a welcome shot in the arm.
“This is a great victory, but now the hard work begins,” warned Joel Shufro, a longtime occupational health and safety advocate who worked to recruit unions to support the bill.
“Getting the bill through the Senate and getting the governor to sign it will be a long and difficult struggle. We must keep on building the grassroots movement if we ever hope to win the right to health care for everyone in New York.”
Activists will discuss and debate how to build this movement when they meet in Chicago, October 30-November 1, for thelargest-ever single-payer national strategy conference.
“Our movement continues to grow, as people realize that the Affordable Care Act does not do enough to solve the health care crisis afflicting almost everyone in America,” said NYSNA Vice President Marva Wade. “We need to come together to finish the job and make health care a right for everyone.”
This blog originally appeared in InTheseTimes.com on August 3, 2015. Reprinted with permission.
Mark Dudzic is the national coordinator of the Labor Campaign for Single Payer. He can be reached at [email protected]
August 5th, 2015 | Moshe Marvit
Union busting has become big business in America. It’s so common that the run-of-the-mill variety hardly raises an eyebrow. Employers regularly hire anti-union consultants and hold captive audience meetings laced with subtle and not-so-subtle threats of disciplinary action or firings.
But every once in a while, employers try a novel union-busting tactic. In Pittsburgh, in a case that some have suspected is destined for the Supreme Court, Duquesne University has pushed the boundaries of employer intimidation.
On April 29, adjunct professors Clint Benjamin and Adam Davis testified under oath at a hearing at the National Labor Relations Board (NLRB). The topic was Duquesne University’s unwillingness to recognize the union that their colleagues overwhelmingly voted for three years ago. After the hearing, the regional director of the NLRB held that Duquesne had to negotiate with the union the adjuncts voted to represent them, United Steelworkers (USW). (Full disclosure: I teach a course at Duquesne Law School, which is a part of Duquesne University, but was not part of this bargaining unit.)
As expected, Duquesne appealed the decision, prolonging the NLRB process and delaying bargaining. However, deep in Duquesne’s appeal—footnote 16 on page 42, to be exact—Duquesne did something radical: It used the brief as a means to openly union-bust by sending out a clear message that anyone who opposes the University in this organizing campaign risks losing their jobs.
The brief read, “Today, Duquesne reserves the right not to rehire both professors and replace them with professors willing and/or better able to incorporate Duquesne’s Catholic, Spiritan mission into their courses.”
As the bottom rung of the faculty, adjuncts have virtually no job protections, so Duquesne would be free to terminate any adjunct for any legitimate reason. It appears, then, that this threat of firing was meant to serve a different purpose than merely preserving some abstract right to fire them: It seems clear the comment was meant to threaten them and all other adjuncts that dare to stand against Duquesne in its anti-union efforts.
Such comments, made informally by a supervisor or anti-union consultant, are fairly common in the workplace during a union drive, though they may be illegal. The fact that Duquesne would feel brazen enough to submit them in a legal document to the NLRB is a slap in the face to the workers and a dare to the federal agency tasked with protecting labor rights.
When asked how he read the Duquesne’s footnote, Benjamin responded, “The threat was pretty bone-chilling.”
I reached out to Duquesne’s attorneys to inquire as to what legitimate explanation they could have had for the threatening footnote, and they did not respond to the request for comment.
There’s a reason the brief specifically cited the university’s religious mission. The NLRB hearing was to determine whether Duquesne, as an institution affiliated with the Catholic Church, was under NLRB jurisdiction. After initially agreeing to the union election in 2012, Duquesne changed course and argued that the NLRB had no jurisdiction over the university. The case has been going up and down the NLRB for three years now, raising significant issues about the Board’s jurisdiction.
The specific question at the hearing was whether the university “holds out the petitioned-for faculty as performing a specific role in creating or maintaining the university’s religious educational environment.” Benjamin and Davis’s testimony was critical. Benjamin testified that he teaches two core English composition courses at Duquesne, and Davis testified that he teaches a history of science course in the History Department. Both testified that they have never been asked about their faith, never been told how to promote Duquesne’s religious mission and never been disciplined for failing to live up to Catholic teachings. Benjamin, who also teaches a composition course at a community college, testified that the way he teaches his course at both institutions is identical.
Benjamin’s and Davis’s testimony that as adjuncts they had no role in Duquesne’s religious mission, and that they were never expected to help promote that mission, was damning to Duquesne’s case at the NLRB. Their testimony revealed that they answered advertisements for the adjunct positions, were hired without any questions about religion, and have never been given any religious directions. Benjamin explained that aside from the various crucifixes adorning the campus, religion is not a concern in his class.
Therefore, they were taken aback by Duquesne’s assertion in the brief professors must “incorporate Duquesne’s Catholic, Spiritan mission into their courses.”
In an interview with In These Times, Benjamin said that he is not even sure how he would incorporate religion into a basic composition course. “I guess we’d involve more reading of scripture?” he says. “The mission itself is to serve God by serving students. It’s pretty open-ended as to what that means.”
University of Wyoming College of Law Professor Michael Duff explained that Duquesne would have trouble arguing that it was simply reaffirming its rights to fire adjuncts who did not adhere to its religious mission. “The problem with the footnote, however, is its superfluity: there was simply no reason to make the declaration,” Duff explained, “and in the context of the footnote you could make a pretty strong argument that it was targeted specifically to the employee witnesses.” The footnote’s only purpose, in other words, was to intimidate the two professors and any other professors who may consider taking a stand in the future.
Duff, who worked at the Board for nine years, further explained that such statements in a legal filing are extremely rare.
“Typically this would occur before an employer had retained a lawyer and had gone off kind of “half-cocked” in anger,” Duff explained. “In my experience, it would be very unusual for a sophisticated law firm to make statements in a formal legal document that even arguably violated the law.”
Duquesne’s attorney, Memphis-based Arnold Perl, is indeed sophisticated in his labor practice. He has been involved in a variety of “union avoidance” (often code for union busting) for decades, and until shortly after he became Duquesne’s counsel in May 2012, he bragged in his bio that he had “extensive experience counseling organizations on remaining union free.” (In late 2012, he changed his bio to read that he has “extensive experience counseling organizations on positive employee relations.”)
Dan Kovalik, the USW attorney who has been representing the Duquesne adjuncts, explained that the purpose of the footnote was immediately apparent.
“It really is tantamount to them threatening to fire them for testifying,” he says. “Because as we showed at the hearing, adjuncts aren’t told they have to incorporate the mission in their teaching, and these guys certainly weren’t told to do that. And now because they testified truthfully about that, they’re being threatened to be fired.”
Reflecting on the irony of including this threat in a brief that is filled with so much religious doctrine and sanctimony, Kovalik said, “They’ve carved out the moral low ground in the name of carving out the moral high ground.”
Duquesne’s case is filled with such ironies. It is arguing that Catholic doctrine—which has traditionally been supportive of labor rights—provides the university an excuse not to recognize the employees’ duly elected union. And, in case that argument stalls, it has decided to use, as a vehicle for union busting, a legal filing to the federal agency tasked with protecting employees’ labor rights.
The techniques that everyone has come to expect in anti-union campaigns did not appear all at once, fully formed. Rather, some employer, management-side attorney, or anti-union consultant decided to test the waters with a new approach If the NLRB does nothing in response to Duquesne’s use of the Board’s proceedings to intimidate workers, then the message to other employers will be clear—and it won’t be long until this approach becomes the norm.
This blog originally appeared in InTheseTimes.com on August 3, 2015. Reprinted with permission.
Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.