Outten & Golden: Empowering Employees in the Workplace

California Just Passed Landmark Law to Stop Bosses From Discriminating Against People with Convictions

November 6th, 2017 | Michael Arria

In an important victory for formerly-incarcerated workers fighting employment discrimination, Calif. Gov. Jerry Brown signed Assembly Bill 1008 into law on October 14, establishing some of the strongest “Ban the Box” legislation in the country. Brown’s signature can be attributed to tireless organizing on the part of formerly incarcerated individuals and their advocates.

One of the biggest challenges facing people returning from prison is employment. Many jobs require applicants to check a box if they have ever been convicted of a crime, but offer no opportunity to explain the circumstances of their arrest. Employers often disregard formerly incarcerated individuals, regardless of their given situation. “Banning the Box” removes this question from applications, requiring businesses to assess the job-seekers’ criminal background only after the individual’s qualifications have been considered.

Under AB 1008, or the California Fair Chance Act, restrictions on employers’ criminal background checks have been extended to private companies. This means that, as of January 1, 2018, no California business with five or more employees will be allowed to ask about or consider an applicant’s conviction history before an employment decision is made.

The legislative victory is the culmination of a fight that has lasted more 14 years, as the grassroots organizing project All of Us or None started the campaign during the early 2000s. All of Us or None sprung out of the group Legal Services for Prisoners with Children (LSPC.)

LSPC’s Communications Director Mark Fujiwara spoke with In These Times about the bill. Formerly incarcerated himself, Fujiwara emphasized that his group’s organizing was primarily led by individuals who had spent time in prison—and have experienced the system firsthand. “Having a grassroots organizing project like All of Us or None is key to creating a sense of community and empowerment for directly-impacted people and our families, as every aspect of the prison industrial complex is designed to separate and isolate people,” he said.

Sandra Johnson is another formerly incarcerated member of LSPC who was on the frontlines of California’s “Ban the Box” fight, testifying during hearings and advocating to legislators. She told In These Times that she was fired from her job of six years after her former employer accused her of concealing her conviction history. “It was devastating,” she told In These Times, “I don’t want anyone else to feel what I felt.”

AB 1008 also received a visibility boost from high-profile supporters like the musician John Legend. About a month before its passage, Legend wrote a letter to Governor Brown calling on him to act on the issue. “For too long, these men and women have been defined by the worst moments of their lives,” Legend wrote. “They have been stigmatized, even after paying their debt to society, and? ?they? ?have? ?seen how? ?a? ?criminal? ?record? ?takes? ?a? ?wrecking? ?ball? ?to? ?future? ?employment.”

“Ban the Box” legislation is particularly important in California. According to the National Employment Law Project (NELP), nearly one out of every three California adults has an arrest or conviction on their record. That’s roughly 8 million people statewide. “The old approach didn’t serve any of us well,” NELP staff attorney Phil Hernandez told In These Times. “When 8 million people across the state are effectively shut out of employment, that shrinks the economy, undermines public safety, and harms families and communities. For those reasons, this new law—which aims to give people with records a fair chance at employment—will ultimately benefit all of us.”

NELP studies also show how restrictive hiring practices have a devastating impact on children and families. Almost half of U.S. children have at least one parent with a record. According to a survey with family members of formerly incarcerated individuals, 68 percent said that those who were parents had trouble paying child support after being released from prison. One study of formerly incarcerated women revealed that 65 percent of them were relying on a family member for financial support.

The fair hiring movement has gained considerable steam in recent years. AB 1008 makes California the 10th state to ban the box for public and private sector workers. Twenty-nine states now ban the box for public employees, and five of them have done so this year: Utah, Nevada, Pennsylvania, Indiana, and Kentucky. In 2015, President Obama endorsed the practice for federal employees. There are also increasing efforts to extend ban the box policies to colleges. In June, Louisiana became the first state to block public universities from asking applicants about their criminal history.

This article was originally published at In These Times on November 6, 2017. Reprinted with permission.

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

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Billionaire Trump donor puts 115 people out of work after some joined a union

November 3rd, 2017 | Laura Clawson

Last week, writers at the news sites DNAinfo and Gothamist joined a union. This week, the sites’ Trump-supporting billionaire owner, Joe Ricketts, shut them down, putting 115 people out of work.

Ricketts, who deleted negative coverage of himself when he acquired the Gothamist properties in March, has threatened to shut down the site in the past if the writers attempted to unionize.

On Thursday, he made good on the promise. […]

According to the National Labor Relations Board, laying off employees because they are engaged in union activity is illegal, but the Supreme Court ruled in 1965 that shutting down an entire business — like Ricketts chose to do Thursday — is one permissible form of retaliation.

Ricketts’ letter announcing the decision said that “DNAinfo is, at the end of the day, a business, and businesses need to be economically successful if they are to endure,” but the New York Times reports that Ricketts “lost money every month of DNAinfo’s existence.” It was only after workers dared to organize that he shut it down.

This blog was originally published at DailyKos on November 3, 2017. Reprinted with permission.

About the Author: Laura Clawson is labor editor at DailyKos.

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Do Nondisclosure Agreements Perpetuate a Toxic Workplace Culture?

November 2nd, 2017 | The Attorneys of Passman and Kaplan

In Hollywood, the cat is out of the bag. Scores of women (and men) are pouring out pent-up tales of sexual assaults and sexual harassment by famous producers, directors and actors. Every day brings new accusations against some movie icon. A group of women at Weinstein Co. has asked to be released from nondisclosure agreements so they can speak publicly to Harvey Weinstein’s alleged decades of predatory abuse and brazen quid pro quo demands.

The mere fact that an entire group of employees at one company is seeking to be unmuzzled is testament to a deep problem. Nor is it limited to the entertainment industry. NDAs and “hush money” settlements are common in every employment sector, including government agencies.

Sweeping it under the rug … until someone notices the lumps

There are two types of nondisclosure agreements at play in scenarios like the Weinstein saga:

First, there are standard NDAs in employment contracts which prevent employees from speaking up about what they’ve seen or experienced. These are a preemptive strike against disclosures that would reflect negatively on the company. When victims, witnesses and allies are effectively gagged, offenders are off the hook and a culture that tolerates sexual harassment is perpetuated.

Second, there are nondisclosure “agreements” thrust upon victims after the fact when they report harassment/assault or threaten legal action. In exchange for a payoff and/or a specifically worded NDA, they keep their jobs or walk away with a settlement and never speak of it again. The alternative is the threat of being blacklisted and smeared.
Again, this dynamic is not unique to Hollywood. Sexual harassment and coerced silence happens in every industry.

How nondisclosure agreements inhibit sexual harassment claims

A few mavericks have violated their NDAs with the Weinstein Co., knowing the company would face fierce public backlash if it tried to enforce the confidentiality agreements. But most people who are subject to NDAs do not have the upper hand. They can be terminated, sued and “outed” for breaching the agreement. The contract may specify monetary damages greater than the original settlement.

One-third of the 90,000 complaints to the Equal Employment Opportunities Commission in 2015 involved workplace harassment. About 45 percent of those cases were sexual harassment. A report by the EEOC revealed that taking formal action is the least common response for women or men who reported being sexually harassed at work.

Why would they not file a formal complaint or lawsuit? Some fear termination or other retaliation. Others fear they won’t be believed or that nothing will change. And some take no action because their hands are tied by employment agreements.

Many employment contracts and NDAs require that claims against the employer – including sexual harassment — be resolved through arbitration. Employers favor mandatory arbitration clauses because (a) there is no risk of a big jury award and (b) the proceedings are private. Whatever the outcome, it is kept quiet. For victims of sexual harassment who want their abuser exposed, arbitration is a dead end.

Nondisclosure agreements are not ironclad

The mere threat of enforcing an NDA is very effective. Some victims do not want the public exposure, expense and stress. Settling and staying mum was their way of making the best of an awful ordeal and moving on.

However, NDAs are not as bulletproof as most employees think. No employment agreement can supercede state or federal laws. A victim of a crime cannot be prevented from talking to police or testifying in court. An employer cannot prevent an employee from reporting sexual harassment to the EEOC. A settlement agreement and NDA only prevents the employee from suing the company and speaking publicly about the incident. And if the agreement was overreaching or coerced, it may not be enforceable.

If you are subject to a nondisclosure agreement, you also cannot be barred from talking to a lawyer. An employment law attorney can explain your rights, your legal options, and any possible consequences of breaching the NDA.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on November 3, 2017. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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This man was denied a job as a sheriff’s deputy just because he has HIV. Now he’s suing.

November 1st, 2017 | Zack Ford

A Louisiana man has filed a federal lawsuit against the Iberia Parish Sheriff’s Office (IPSO) for allegedly discriminating against him in 2012. According to the complaint, filed last week by Lambda Legal, IPSO was prepared to hire Liam Pierce as a deputy sheriff, but allegedly opted not to after learning that Pierce has HIV.

“It was like a punch to the gut,” Pierce, 46, told ThinkProgress in a phone interview. “It really frustrated me that for all the wonderful things that are here in Louisiana and all the wonderful people we have, we still have people that are not appropriately educated with HIV, how it’s transmitted, what the risks are, and what isn’t risky.”

As the complaint recounts, two days after Pierce had his in-person interview with IPSO in March, 2012, Captain Rickey Boudreaux told him that was going to be hired by the department, pending a medical examination. That examination, completed two weeks later, found that Pierce indicated “no significant abnormalities or medical findings,” with all physical findings “within normal limits.” But it did state that he is HIV-positive. Two days after submitting the medical examination, Pierce received a letter from IPSO indicating that he would not be hired.

“It’s clear on the medical evaluation: The only thing negative was the HIV status,” Pierce said, adding that a friend’s contact at the department relayed to him that he wasn’t hired because he failed the medical. He immediately knew it was because of his HIV status. “Anybody with a simple amount of education is able to see right and wrong and this is plainly wrong. It’s no different than discriminating against somebody because they have diabetes or because they have cancer. You can’t discriminate against that. It’s wrong.”

Indeed, the U.S. Department of Justice has resources dedicated specifically to educating the public about how discrimination on the basis of HIV status is a violation of the Americans with Disabilities Act.

Pierce has a long history of service to others. He’s been an EMT, a paramedic, a firefighter, and a police officer. It was actually Hurricane Katrina that brought him to Louisiana in the first place; he ditched his old job after securing authorization to join the first-responder recovery efforts. He was hired full-time shortly thereafter by a local agency. To this day, he still teaches various public safety courses, including firearm safety, first aid, CPR, and — ironically — blood-born pathogens. His enthusiasm for helping others even convinced his husband to take an interest in firearm safety and they now teach the classes together.

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Hotel Housekeepers: Tipping as Hazard Pay?

October 31st, 2017 | Jordan Barab

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The New York Times has an article about failure of most hotel guests to give low-paid, hard-working housekeepers a much appreciated tip. Aside from the hard work they do,  the Times also notes the hazards of the job.

Angela Lemus, a housekeeper at the Wyndham Boston Beacon Hill who makes $19.91 per hour, said through a translator that in addition to scrubbing tubs and taking out trash, she sometimes has to clean blood or other medical waste from rooms….Desk clerk jobs don’t require the flipping of heavy mattresses or exposure to cleaning chemicals that can lead to respiratory and other health problems. Ms. Lemus, for example, developed an allergy to the latex gloves she was required to wear while cleaning. “It went on for years, and it got so bad my hands started to bleed,” she said. “I couldn’t let people see my hands.”

And let’s not forget musculoskeletal disorders from lifting bed mattresses and the threat of workplace violence from guests.

But are these really the same issue?  Are tips the solution to dangerous working conditions, or is elimination of hazards the solution to safe working conditions?  The Occupational Safety and Health Act says that all workers have a right to a safe workplace, whether they receive tips or not.

Implying the tips make it OK to work in hazardous conditions makes them sound like “hazard pay” and hearkens back to the good old pre-OSHA days where workers allegedly agreed to “assume” the risks of a job in return for a paycheck.

We’ve supposedly come a long way since then. Workers — even hotel housekeepers — deserve a living wage (including tips) for their work, AND workers have right to a safe workplace.

This blog was originally published at Confined Space on October 31, 2017. Reprinted with permission.

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

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Congress Just Killed Your Right to a Day in Court

October 30th, 2017 | Paul Bland

Last week, 50 Senators joined Vice President Mike Pence to kill one of the most important advances in consumer rights in years.

By casting the tie-breaking vote to kill the Consumer Financial Protection Bureau’s arbitration rule – which allowed consumers to band together to sue banks, financial institutions and credit card companies – Pence showed just how much power Wall Street has amassed on Capitol Hill and on Pennsylvania Avenue. It also unmasked the alarmingly cozy relationship between GOP leaders and the bank executives who defrauded millions of consumers and exposed their most important information to Equifax hackers.

As I told one reporter , “This was the Wells Fargo Immunity Act.”

Public Justice was proud to be a leading voice in the effort to defend the CFPB rule and help consumers fight back against the big banks that defraud their own customers. But make no mistake:  This vote was a big setback for consumer protection, but it did not kill the resolve of those of us who will continue to fight alongside the CFPB in order to give Americans their day in court.

Now that consumers have learned what’s at stake, there’s going to be more pressure from constituents for lawmakers to stop the kinds of behavior we’ve seen from Wells Fargo and Equifax, among others. This vote, though heartbreaking for those of us who believe in protecting the little guy, may well turn out to be a huge catalyst for future change.

With your help, we will keep fighting to keep the courthouse doors open.

This blog was originally published at Public Justice on October 30, 2017. Reprinted with permission. 

About the Author: Paul Bland has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads Public Justice’s legal and foundation staff, guiding the organization’s litigation docket and other advocacy.

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GOP Smash-And-Burn Tax Plan Does Nothing for Workers

October 27th, 2017 | Leo Gerard

Congressional Republicans are selling a trickle-down tax scam times two. It’s the same old snake oil, with double hype and no cure.

A single statistic explains it all: one percent of Americans – that is the tiny, exclusive club of billionaires and millionaires – get 80 percent of the gain from this tax con. Eighty percent!

But that’s not all! To pay for that unneeded and unwarranted red-ribbon wrapped gift to the uber wealthy, Republicans are slashing and burning $5 trillion in programs cherished by workers, including Medicare and Medicaid.

Look at the statistic in reverse, and it seems worse: 99 percent of Americans will get only 20 percent of the benefit from this GOP tax scam. That’s not tax reform. That’s tax defraud.

Republican tax hucksters claim the uber rich will share. It’s the trickle down effect, they say, the 99 percent will get some trickle down.

It’s a trick. Zilch ever comes down. It’s nothing more than fake tax reform first deployed by voodoo-economics Reagan. There’s a basic question about this flim-flammery: Why do workers always get stuck depending on second-hand benefits? Real tax reform would put the rich in that position for once. Workers would get the big tax breaks and the fat cats could wait to see if any coins trickled up to jingle in their pockets.

House Speaker Paul Ryan claimed Republicans’ primary objective in messing with the tax code is to help the middle class, not the wealthy. Well, there’s a simple way to do that:  Give 99 percent of the tax breaks directly to the 99 percent.

The Republican charlatans hawking this new tax scam are asserting the pure malarkey that it provides two, count them TWO, trickle-down benefits. In addition to the tried-and-false fairytale that the rich will share with the rest after collecting their tax bounty, there’s the additional myth that corporations will redistribute downward some of their big fat tax scam bonuses.

A corporate tax break isn’t some sort of Wall Street baptism that will convert CEOs into believers in the concept of paying workers a fair share of the profit their labor creates.

Corporations have gotten tax breaks before and haven’t done that. And they’ve got plenty of cash to share with workers right now and don’t do it. Instead, they spend corporate money to push up CEO pay. Over the past nine years, corporations have shelled out nearly $4 trillion to buy back their own stock, a ploy that raises stock prices and, right along with them, CEO compensation. Worker pay, meanwhile, flat-lined.

In addition to all of that cash, U.S. corporations are currently sitting on another nearly $2 trillion. But CEOs and corporate boards aren’t sharing any of that with their beleaguered workers, who have struggled with stagnant wages for nearly three decades.

Still, last week, Kevin Hassett, chairman of the President’s Council of Economic Advisers, insisted that the massive corporate tax cut, from 35 percent down to 20 percent, will not trickle, but instead will shower down on workers in the form of pay raises ranging from $4,000 to $9,000 a year.

Booyah! Happy days are here again! With the median wage at $849 per week or $44,148 a year, that would be pay hikes ranging from 9 percent to 20 percent! Unprecedented!

Or, more likely, unrealistic.

Dishonest, incompetent, and absurd” is what Larry Summers called it. Summers was Treasury Secretary for President Bill Clinton and director of the National Economic Council for President Barack Obama.

Jason Furman, a professor at the Harvard Kennedy School who once held Hassett’s title at the  Council of Economic Advisers, called Hassett’s findings “implausible,”  “outside the mainstream” and “far-fetched.”

Frank Lysy, retired from a career at the World Bank, including as its chief economist, agreed that Hassett’s projection was absurd.

Hassett based his findings on unpublished studies by authors who neglected to suffer peer review and projected results with all the clueless positivity of Pollyanna. Meanwhile, Lysy noted, Hassett failed to account for actual experience. That would be the huge corporate tax cuts provided in Reagan’s Tax Reform Act of 1986.

Between 1986 and 1988, the top corporate tax rate dropped from 46 percent to 34 percent, but real wages fell by close to 6 percent between 1986 and 1990.

Thus many economists’ dim assessment of Hassett’s promises.

The other gob-smacking bunkum claim about the Republican tax scam is that it will gin up the economy, and, as a result, the federal government will receive even more tax money. So, in their alternative facts world, cutting taxes on the rich and corporations will not cause deficits. It will result in the government rolling in coin, like a pirate in a treasure trove. That’s the claim, and they’re sticking to it. Like their hero Karl Rove said, “We create our own reality.”

Here’s Republican Sen. Patrick J. Toomey, for example: “This tax plan will be deficit reducing.”

If the Pennsylvania politician truly believes that’s the case, it’s not clear why he voted for a budget that would cut $473 billion from Medicare and $1 trillion from Medicaid. If reducing the tax rate for the rich and corporations really would shrink the deficit, Republicans should be adding money to fund Medicare and Medicaid.

While cutting taxes on the rich won’t really boost the economy, it will increase income inequality. Makes sense, right? Give the richest 1 percenters 80 percent of the gains and the remaining 99 percent only 20 percent and the rich are going to get richer faster.

Economist Thomas Piketty, whose work focuses on wealth and income inequality and who wrote the best seller “Capital in the Twenty First Century,” found in his research no correlation between tax cuts for the rich and economic growth in industrialized countries since the 1970s. He did find, however, that the rich got much richer in countries like the United States that slashed tax rates for the 1 percent than in countries like France and Germany that did not.

This Republican tax scam is a case of the adage that former President George W. Bush once famously bungled: “Fool me once, shame on you. Fool me twice, shame on me.”

This blog was originally published at OurFuture.org on October 27, 2017. Reprinted with permission.

About the Author: Leo Gerard, International President of the United Steelworkers (USW), took office in 2001 after the retirement of former president George Becker.

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After 41 Years, The Teamsters Reform Movement Is Finally Building Power

October 26th, 2017 | Stephen Franklin

In the beginning, Teamsters for a Democratic Union (TDU) was full of spunk. But they didn’t have any union leaders on their side, nor many rank and file supporters, nor much strategy about turning around a corruption-riddled union.

“When they said we didn’t know what we were doing, it wasn’t totally false,” says Ken Paff, who has led the TDU almost since its founding 41 years ago. “We knew what we didn’t know.”

In time, the TDU learned how to become a thorn in the union’s side, challenging its contracts, finger pointing to officials’ corruption and lopsided multiple salaries, and electing reform-minded members to local and national positions.

At its 41st convention from October 27 to 29 in Chicago, TDU will mark last year’s national campaign that fell only 6,000 votes short of ousting James P. Hoffa. He has led the nearly 1.3-million-member union since 1999, four years longer than his father, James R. Hoffa.

But the TDU is not “just about elections,” Paff says.

The talk during the upcoming convention, according to Paff, will focus on winning strong contracts, converting part-time jobs into full-time work, boosting wages that start for some at $11 an hour and protecting pensionsthat have been under attack. And then there’s what the group has focused on since its start: developing leaders, he adds. The union’s problem, he explains, “is not such bad leaders, but that we need more leaders.”

It’s a strategy of constant activity that the TDU honed as it became one of a handful of reform movements inside the nation’s largest unions. And it has survived with a small Detroit-based staff and about 10,000 members, of whom half are behind on their dues, according to Paff. TDU has six full-time staff, all of whom earn the same salary, as well as two part-timers, Paff explained.

Paff joined the group in 1978 as a full-time national organizer. But he didn’t fit the stereotype of a hardscrabble trucker. He had an undergraduate degree in physics from the University of California at Berkeley and had worked as a schoolteacher. He was driving for a trucking company in Cleveland when he lined up with the union dissidents. For inspiration, he studied the work of the Miners for Democracy, learning about their battle within the United Mine Workers union.

Looking for a way to make an impact, TDU began campaigning against the contracts signed by the union. It was a gutsy strategy, since the group had no voice within the union. “They [the contracts] were terrible, and members knew it. And they [union leaders] didn’t have to pay any attention to the members,” Paff recalls. The group won a lawsuit requiring the union to put its contracts up for a majority vote. After a major publicity push, members voted down the union’s master freight agreement in 1987.

“That really caused people to take notice,” Paff says.

But the real turning point came in 1989, when the U.S. government took control of the union in a consent order—and said the union had to hold its first-ever rank-and-file election. The government described the union as virtually a “wholly owned subsidiary of organized crime.

The union sought to put off the election, which finally took place two-and-a-half years later. Ironically, that was a gift for the TDU. “It was perfect for us. We weren’t able to hold an election and we lined up Ron Carey to win,” Paff recalls. Carey’s 1991 election led to reforms across the union.

But the changes were short-lived. An election victory by Carey in 1996 was overturned, and he was barred from the union by a court ruling as a result of election wrongdoing by his aides, leading to a new election. Hoffa beat a TDU-backed candidate in 1998 and has been in power ever since.

For the last 35 years, the TDU has hectored the union about officials’ salaries. Its latest report, issued in 2016, showed, that 46 union leaders earned over $200,000 in 2015. Hoffa earned $387,244 in salary and compensation in 2015, the TDU reported. He was ranked as the highest paid leader of a major union in 2016, according to news reports.

John Coli, the once-powerful head of Chicago area Teamsters, was among the highest-paid Teamsters in 2015, with $337,215 in salary and compensation, according to the TDU. He was indicted this year by federal officials for an alleged extortion scheme that netted him $325,000 from a major Teamster employer in Chicago. A major internal investigation of union corruption that focused on Chicago collapsed in 2004, allegedly when Chicago Teamster leaders protested to Hoffa.

By constantly pointing to the union’s high salaries and voicing the concerns within the union, Paff claims that the attention helped spur changes. “Once we got the right to vote, we started driving down the salaries. [Jackie] Presser made $500,000 in the 1980s, and today they make in the 300,000s,” Paff says.

Some of the TDU’s challenges have not disappeared, however. At the union’s last convention, only 8 percent of the delegates were aligned with the group. Furthermore, TDU has been unable to raise the money required to run a major national campaign. Hoffa and his slate spent about $3 million on the national election in 2016.

And yet the Teamsters United slate, backed by the TDU, won in the Midwest and South, sweeping the votes in the Chicago area for the first time ever. One of its candidates for vice president came within roughly 4,000 votes of winning, according to Paff. The vote totals “show you the discrepancy between the rank-and-file and local officials,” he adds.

With many more Teamsters coming from jobs outside prisons and public services—the union’s traditional trucking base—the union is seeing more members who don’t have the same interests or long-term loyalties to Hoffa and his supporters. Paff sees yet more potential for change. At 71 years old, he expects to pass the baton to others in the coming years.

There’s no expectation within the TDU that jobs are passed down to family, friends or long-term allies—as is the case in some unions, he says. Paff underscores, “We still have people out there who can help.”

 This article was originally published at In These Times on  October 26, 2017. Reprinted with permission.
About the Author: Stephen Franklin, former labor and workplace reporter for the Chicago Tribune, was until recently the ethnic media project director with Public Narrative in Chicago. He is the author of Three Strikes: Labor’s Heartland Losses and What They Mean for Working Americans (2002), and has reported throughout the United States and the Middle East.

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The pay gap and sexual harassment must be addressed simultaneously

October 25th, 2017 | Casey Quinlan

Over the past few days, more and more men have continued to resign or at the very least publicly confront accusations of sexual harassment, and this trend shows no sign of slowing down.

On Wednesday, former President George H.W. Bush apologized for groping actress Heather Lind (with a caveat that it was an “attempt at humor“). On Tuesday, Leon Wieseltier, former literary editor of The New Republic, apologizedfor “offenses against some of my colleagues in the past” after Emerson Collective, a for-profit organization, stopped supporting Wieseltier’s project, a new magazine. On Monday, a top labor executive who led the Fight for 15 campaign resigned. Former and current Service Employees International Union (SEIU) staffers told BuzzFeed that SEIU Executive Vice President Scott Courtney had sexual relationships with young female staffers who were later promoted. Last Friday, Lockhart Steele, editorial director at Vox Media, was removed from his position after a former Vox employee, Eden Rohatensky, wrote a post on Medium that led to a company investigation. (Rohatensky did not mention Vox or anyone at Vox by name but did say “one of the company’s VPs” put his hands on them and started kissing them.)

The alleged sexual harassment and assault has ranged from the entertainment industry to the financial industry. On Sunday, The Wall Street Journal reported that Fidelity, a financial services corporation, has its own problems with sexual harassment. Also on Sunday, the Los Angeles Times reported that 38 women came forward to accuse Director James Toback of sexual harassment. It took a few hours for the number of women accusing Toback to double, and now, the reporter says that a total of 193 women contacted him since his initial expose.

But if companies are going to tamp down on sexual harassment, they need to do more than spend money on sexual harassment training and hope that’s enough. As Vox reported, sexual harassment trainings have become a legal precaution more than anything, and the data shows that they are not effective at lowering incidents of harassment. Trainings often help people realize what counts as workplace harassment, but they don’t actually change change their views or actions. Instead of simply holding trainings and hope they work, employers must make it clear that there is a culture of accountability and transparency for everyone, even executives and people who consistently provide results for the company — or the “rainmakers.” They also have to ask themselves important questions about the performance review process and how it determines pay, because women’s lack of economic power in their workplaces often makes them vulnerable targets for sexual harassment. Are senior employees held accountable for their biases in performance reviews?

Brit Marling emphasized this point when she told her own story about sexual harassment and a meeting with Harvey Weinstein that sounds like so many others. As in many other cases, Weinstein’s assistant said the meeting had been moved from a hotel bar to his hotel suite. When she got there, Weinstein asked her to shower with him. She left the room, but as it all unfolded, Marling said she was very aware of the power he had over her career. She wrote:

Men hold most of the world’s wealth. In fact, just eight men own the same wealth as 3.6 billion people who make up the poorer half of humanity, the majority of whom, according to Oxfam, are women. As a gender whole, women are poor. This means that, in part, stopping sexual harassment and abuse will involve fighting for wage parity.

Last year, the gender wage gap widened, according to a March Institute for Women’s Policy Research analysis. The ratio of median weekly earnings for women working full time compared to men decreased by 1.4 percent. Even improvements in the economy don’t help women get better-paying jobs, since those usually go to men, in part because of occupational segregation that pays women less when they are in fields dominated by women.

Bias in performance reviews certainly doesn’t help. Paola Cecchi-Dimeglio, a postdoctoral research fellow at Harvard University, shared her findings on individual annual performance reviews and bias in Harvard Business Review. Cecchi-Dimeglio found that women were 1.4 times more likely to receive critical subjective feedback, not positive feedback or critical objective feedback and that traits that were considered negative in women were often interpreted as positive in men. Where a man was considered careful for taking his time on a project, a woman was told she had “analysis paralysis.” Women’s successful performance in the office was often perceived to be the result of hard work or luck rather than abilities and skills.

Cecchi-Dimeglio said that the solution to dealing with some of these issues of gender bias include using more objective criteria, making reviews more frequent, which appeared to cut down on gender bias, and using a broader group of reviewers. A 2008 study by Emilio Castilla focused on the impact of lack of transparency and accountability on performance appraisal and performance pay.It found that employers adopting merit-based practices and policies, which are meant to motivate employees and foster a meritocracy, can actually increase bias and reduce equity in the workplace if the policies have limited transparency and accountability. The study noted that some experts on performance evaluation practices say that there should a separation of performance appraisals and salary discussion, in part because employees will focus more on the monetary amount they receive than the feedback, and managers can “manipulate performance ratings to justify salary increases” they want to give to certain employees.

Another 2012 study also reinforces the idea that transparency and accountability are central to dealing with pay inequities. Janice Fanning Madden, a Wharton real estate professor and a professor of regional science and sociology at the University of Pennsylvania, looked at the gender pay gap among stockbrokers.Madden found found that women were assigned inferior accounts, so they would earn lower returns and commissions, and as a result, they would be less likely to receive support staff, nice offices, and mentors. Using information about sales transferred by management from one broker to another, she analyzed performance and found that when women had clients who had the same potential for high commissions, they produced the sales results as men. This demonstrates the need for accountability for senior executives who are as subject to gender bias as anyone else.

Ariane Hegewisch, a researcher at the Institute for Women’s Policy Research who focuses on workplace discrimination, said that although Fidelity’s performance evaluation system, which women at the company have been critical of, may appear to be fair, it is lacking accountability for senior management. Hegewisch gave an example of a common problem in businesses and organizations.

“So the section heads have been told you have the power to assess people and there doesn’t seem to be a lot of control or monitoring of what they are doing,” Hegewisch said. “There are organizations where the HR department scrutinizes what section heads do and that has an element of performance accountability for those decisions, and that seems to be missing to some extent in the Fidelity system.”

Hegewisch added, “What it is interesting about this is that it was clearly not only women who felt aggrieved by this system. It was also some men who said it was unfair and led to inequitable outcomes and to favoritism.”

When it comes to sexual harassment claims, the situation is similar, Hegewisch added. People need to know that there is accountability for senior employees and rainmakers. There also needs to be transparency so that people know why someone left the company.

You can’t have the best designed systems if the culture is not supportive or the hierarchy is not seen as supportive. It will not generate the results that you want,” Hegewisch said. “We’ve told organizations to set up external complaint lines for sexual harassment cases. And then it turns out that in some organizations, they hand it over to HR and tell them who it is and nothing happens anyway.”

Even if a company is handling sexual harassment claims well, it needs to clear to employees what happened or why someone was dismissed. Of course, there are sometimes legal barriers to companies disclosing information about someone’s misconduct.

“If you do the right thing and pretend it was for a different reason, [it matters that employees] know about it and believe this was a way the company is backing them up when something like this happens. You have to be able to communicate it and if you can’t communicate it, you’re tying yourself up,” she said.

When it comes to reporting harassment, Hegewisch said, “There has to be some proof that people can take away that this is an issue that is serious that the company takes seriously.”

That means setting up systems to keep senior managers in check, not simply setting up a training for employees on what sexual harassment is. Since 2010, harassment complaints at the federal level stagnated or slightly rose, according to recent Equal Employment Opportunity Commission (EEOC) data. The report explained that the sexual harassment training provided over the past few decades has not been effective as a prevention tool, according to an EEOC report.

Researchers also recommend that employers try to achieve a gender balance at every level of their organization to reduce harassment and that employers need to provide assurances that people who report harassment will not be retaliated against. They need to guarantee protection against non-employer retaliation and confidentiality of complaints, when possible. The policies on how to report harassment should be clear to employees and any training on harassment should include an explanation of what constitutes employer retaliation.

This article was originally published at ThinkProgress on October 25, 2017. Reprinted with permission.

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

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Forced Arbitration Protects Sexual Predators and Corporate Wrongdoing

October 24th, 2017 | Emily Martin

Fox News.  Sterling Jewelers.  Wells Fargo. 

What do they all have in common?  For years, they successfully kept corporate wrongdoing secret, through forced arbitration.

Buried in the fine print of employment contracts and consumer agreements, forced arbitration clauses prohibit you from going to court to enforce your rights.  Instead, employees who experience harassment and discrimination, or consumers who are the victims of financial fraud or illegal fees, are sent to a private arbitration forum.  Frequently designed, chosen, and paid for by the employer or corporation, in arbitration everything is conducted in secret. People who suffered the same abuses often can’t join together to show how rampant a problem is and confront a powerful adversary—and people are less likely to come forward at all, because they have no idea they aren’t alone.

When Gretchen Carlson sought her day in court over sexual harassment allegations against Roger Ailes, her former boss at Fox News, Mr. Ailes’s lawyers had a quick response: send the case to forced arbitration.  After she filed suit, he also invoked a clause that reportedly required absolute secrecy: “all filings, evidence and testimony connected with arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” It was only because she resisted that clause through a creative legal theory that her allegations were made public—unleashing a tsunami of claims of sexual harassment by Ailes and others at Fox News.

Hundreds and maybe thousands of former employees of Sterling Jewelers, the multibillion-dollar conglomerate behind Jared the Galleria of Jewelry and Kay Jewelers, known for advertising slogans such as “Every kiss begins with Kay,” were allegedly groped, demeaned, and urged to sexually cater to their bosses to stay employed.  The evidence of apparent rampant sexual assault was kept secret for years from other survivors and the general public through gag orders imposed in forced arbitration.

The same thing happened at American Apparel, where employees and models were forced to arbitrate sexual harassment claims and keep the details secret, and the proceedings were reportedly a sham.

We don’t yet know if Hollywood producer Harvey Weinstein used forced arbitration to suppress allegations of his decades-long campaign of sexually harassing, abusing, and assaulting young assistants, temps, employees and executives at the Weinstein Company and Miramax.  But the clauses may well have played a role, and his nondisclosure agreements and secret one-by-one settlements worked to the same effect.

And forced arbitration clauses do not only hide wrongdoing in sexual harassment cases.  Corporations also use forced arbitration to isolate victims and cover up massive, widespread wrongdoing in the financial sector.

For example, forced arbitration clauses found in legitimate customer accounts let Wells Fargo block lawsuits related to the 3.5 million sham accounts it opened; as a result it kept its massive scandal secret for years, and then lied to Congress about it.  People began trying to sue Wells Fargo in 2013, but cases were pushed out of our public courts into secret arbitrations, and Wells Fargo continued creating fake accounts.

KeyBank, like Wells Fargo, has also used forced arbitration to keep disputes secret and block relief for people charged overdraft fees when their accounts weren’t overdrawn.  A court recently ruled “unconscionable” KeyBank’s provision requiring a customer to “keep confidential any decision of an arbitrator.”  But the court allowed KeyBank to force the plaintiff to arbitrate his case individually, despite the fact that thousands or millions of KeyBank customers were subject to the same abuses. These customers were not permitted to come together to challenge these abuses as a group in court, because of forced arbitration.

By imposing secrecy and isolating victims, forced arbitration shields corporate wrongdoing and leaves it more difficult for those harmed to hold the wrongdoers accountable.  That’s why the Consumer Financial Protection Bureau issued a rule earlier this year prohibiting banks, payday lenders and other financial companies from using forced arbitration to cover up widespread frauds, scams and abuses.  This is a first step in the right direction of restoring Americans’ rights to challenge predatory practices.  But some in Congress have threatened to block this important protection. 

Earlier this year, Congress and President Trump overturned rules that prohibited employers with federal contracts from forcing employees to arbitrate sexual harassment or sexual assault claims, or claims alleging discrimination on the basis of sex, race, or religion.  In so doing, they took power away from women facing sexual harassment and returned it to those trying desperately to keep that harassment under wraps.

We cannot tolerate another blow against Americans seeking to hold the wealthy and powerful accountable.  The CFPB’s rule must be permitted to go forward. 

This blog was originally published at Public Citizen Litigation Group’s Consumer Law & Policy Blog on October 23, 2017. Reprinted with permission. 

About the Author: Emily Martin is General Counsel and Vice President for Workplace Justice at the National Women’s Law Center. She oversees the Center’s advocacy, policy, and education efforts to ensure fair treatment and equal opportunity for women at work and to achieve the workplace standards that allow all women to achieve and succeed, with a particular focus on the obstacles that confront women in low-wage jobs and women of color.

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