Outten & Golden: Empowering Employees in the Workplace

Responding to a proposed disciplinary action

November 20th, 2018 | The Attorneys of Passman and Kaplan

There is short window to give your formal reply

Employees of federal agencies have many rights that do not apply in the private sector. One important protection is the right to be notified in advance of disciplinary action.

If you are facing an adverse action – suspension, demotion or removal – you may have as little as seven days to give your formal reply. With your job and possibly your federal career on the line, you should involve an attorney who practices federal employment law.

The dreaded proposal of adverse action

You may find your job in jeopardy due to supposed misconduct or performance issues. Your federal agency must give you a written proposal that outlines (a) the evidence of wrongdoing or poor performance and (b) the adverse employment action that is proposed. The proposal must be provided at least 30 days in advanced of the sanctions.

The agency must give you an opportunity to provide a formal reply to the proposed sanctions. This time frame may be as short as seven days, depending on the agency and the type of action.

Your reply is reviewed by a higher level manager. Even if the agency upholds the proposal and implements the proposed action, your formal reply will serve as the foundation for appeal. It is important to provide a detailed and timely response. Your attorney can help you draft a reply that complies with your agency’s protocols.

Appealing an unfavorable decision through the MSPB

If you are slated for termination, downgrade or suspension of 14 or more days, you can appeal to the Merit Systems Protection Board. Your case will be heard in an MSPB hearing or, or in an arbitration if you are a member of a union.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on November 2, 2018. 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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New Bill Seeks to Protect Health Care and Social Service Workers from Workplace Violence

November 19th, 2018 | Paula Brantner

Workplace violence is a serious and growing problem for health care and social service workers. Nurses, emergency room doctors, social workers, psychiatric facility aides, and other health care and social service workers frequently face violence that leads to serious, life-altering injuries, loss of productivity and death. In 2016, working people petitioned the Occupational Safety and Health Administration for a workplace violence standard and, in 2017, OSHA granted that petition; yet there has been no action by the Trump administration to develop a national standard to protect workers from violence.

Some key facts about workplace violence:

  • It is responsible for more than 850 worker deaths and 28,000 serious injuries each year and is on the rise.
  • One of every six workplace deaths each year are from workplace violence.
  • It is now the second leading cause of death on the job.
  • Health care and social service workers are at greatest risk: They are nearly five times more likely than other workers to suffer a workplace violence injury.
  • Last year, workplace homicides doubled for health care and social service workers.
  • Two of every three workplace violence events are suffered by women.
  • Workplace violence is foreseeable and preventable.

Today, Reps. Joe Courtney (Conn.) and Bobby Scott (Va.) introduced legislation aimed at protecting health care and social service workers from workplace violence. In a letter supporting the legislation, Courtney said:

To address these rising rates of violence, I am introducing the Workplace Violence Prevention for Health Care and Social Service Workers Act. This legislation will require the Occupational Health and Safety Administration (OSHA) to issue a workplace violence prevention standard requiring employers in the health care and social service sectors to develop and implement a plan to protect their employees from workplace violence. These plans will be tailored to the specific workplace and employee population, but may include training on de-escalation techniques, personal alarm devices, surveillance and monitoring systems, or other strategies identified by the employers and employees to keep workers safe. While OSHA has already issued voluntary guidance to employers on how to prevent violence in these workplaces, data from [the Bureau of Labor Statistics] as well as personal testimony from workers about continuing violence shows that voluntary guidance is not sufficient. An enforceable standard is required to prevent the types of violence that are prevalent in too many of our hospitals, nursing homes and social service settings.

This blog was originally published by the AFL-CIO on November 19, 2018. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars

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Forget Elections—Labor Needs To Get Back to Its Roots

November 16th, 2018 | Tom Lewandowski

With the midterms behind us, we have Nov. 4, 2020, to look forward to—labor’s next morning after. On Nov. 5, 2008, we were euphoric and full of delusional hope over the imminent passage of the Employee Free Choice Act and the restoration of labor. On Nov. 9, 2016, we were paralyzed by despair and denial.

At this point, betting our future on the next brutal mating ritual of Republicans and Democrats is not a bet most workers are willing to take. Since the 1950s, union membership decline has been a straight line downward, regardless of which political party is in power. Only 10.7 percent of workers are unionized; an enormous 89.3 percent are not. That’s too low to make much difference for most people in most places—more molecular level Brownian motion than labor movement. No threat to wealth, the wealthy, or powerful. Much worse, no voice or power of, by, or, for workers. Instead, organized labor has become so marginal Donald Trump has been able to usurp its role as the emotional voice for workers.

The economy is doing great—apart from workers. Wages remain stagnant. Forty percent of adults don’t have enough savings to cover a $400 emergency expense such as a car repair or medical crisis. Forty-three percent of families aren’t making enough to cover monthly living expenses. Uncertain work, unpredictable work hours, mandatory overtime, dictatorial bosses, miserable job standards, create day-to-day desperation with psychological and social tolls. The labor market is ripe for an organizing explosion, but it isn’t happening.

Blaming the rich and the Republicans is great sport. The income inequality research industry is booming and there is no need to catalog Republican offenses—they campaign on them. Long ago, labor outsourced its representation in the public sphere to the Democratic Party, and in the process become a dependent franchise and an easy target. But the truth is that the Democrats patronize labor on a good day, sell us out on a bad day, and ignore us on most days. (I speak as a recovering politician, a Democrat who ran and was elected four times to city council in my heavily Republican small town.)

Partisan and competitive thinking insidiously affects behavior. Fifty percent plus one passes for solidarity. Unionists succumb to political speak, sounding like Washington rather than “folks ‘round here.” We blame workers for voting for Republicans. If they’d only voted how we told them, then we could get things done. We estrange ourselves from large chunks of workers while giving ourselves an excuse for failure. We don’t have to do the hard work of building a movement, we only need to win an election.

Maybe we should rethink that.

Instead, start today from where we are and who we are. Simple collective self-representation without institutional, ideological, partisan or monetary artifice. Understanding who and where we are by our own compass; by our own position, not opposition. This requires radical respect for our fellow workers. For lack of a better term, this unadorned organizing is social organizing.

Abundant example are scattered across the globe and buried in history. I witnessed a jarring worker tutorial in social organizing in Poland in 1995, when AFL-CIO desperation over labor’s decline and my good luck resulted in a leave of absence from my elected Central Labor Council job to work in those early post-revolutionary years with Solidarnosc leadership and membership. Ironically, at one point, I was tasked with organizing a conference on American union organizing for Solidarnosc activists. Just as the accomplished, well-educated American organizer sent over by the union began his presentation, one Solidarnosc members interrupted to ask, “What do you mean “organize?” A moment of awkward silence followed. Then, charitably, another Solidarnosc member suggested, “Do you mean, join our organization and we’ll represent you?” The original questioner jumped in, “we had 45 years of that with the Communists.” The workers then came up with their own definition of organizing, “co-creating our own future.” Workers, not the organization, were the of, by, and for.

Post-revolution, the solidarity of Solidarnosc dissipated into political and institutional factions. Still, this incident illuminates the commitment to social organizing that helped spark this transformational worker movement.

When all we have is each other, social organizing is where we start.

Back to basics

Social organizing built the labor movement. When 19th-century American workers had virtually no institutional or political voice or power, they developed both by caring about and for each other. In nearly every inch of America, now-forgotten workers came together with that definition of solidarity.

In 1894, Coxey’s Army of unemployed workers marched on Washington, D.C., to press for defined jobs and meaningful work. As branches passed through cities and towns—including Fort Wayne, Ind., where I work—the Fort Wayne Sentinel reported that local residents lavished them for days with food and social support. That same year the Sentinel reported, during the 1894 streetcar workers strike, housewives directed garden hoses at scabs, horse drawn wagons inexplicably unhitched on the tracks, and riders boycotted the streetcars. Returning the solidarity, striking workers went back to work without pay for one day, Memorial Day, so citizens could visit the graves of their departed. Streetcar workers and the community won that strike.

Thousands of lost histories such as this were the roots of community-based solidarity in industrial America. This populist industrial solidarity spawned and supported Workingmen’s Associations, Knights of Labor chapters, Trade and Labor Councils. In turn, these organizations incubated worker organizing in workplaces and by trades. Local solidarity in railroad towns and company towns built the institutional, political and legal foundations for our now diminished labor movement. The gravity of solidarity drew workers into the inextricably intertwined labor market and community. This culture of solidarity included direct actions such as strikes and boycotts but, more consistently and importantly, direct education of, by, and for workers. Apprenticeships,“lectors” who read news and literature aloud to workers on the job, and intentionally educational union meetings with guest speakers were part of the culture. Railroad and industrial activities were regularly covered in newspapers, with the reporting focused more on workers than bosses or business. Journalists, whether Knights of Labor or just solid reporters, would commonly cover union federation meetings. Union leaders understood their role as representative in the community meant talking to reporters, not hiding from them. Everybody had something to teach and everybody had something to learn and an obligation to do both. A culture of solidarity meant educate to organize and organize to educate.

We could take solace and avoid the hard work of organizing by saying America and the world are different now. Our mid-twentieth century institutions, economy, and democracy have decayed or been hijacked. Our social divisions can feel insurmountable. We’ve been sliced, diced, monetized, politicized and controlled. But are we so special that we now believe we are the first ones to have ever been so seemingly screwed? Or do we try to work through it, experiment based on what we can learn from other times and places and most importantly, each other?

Social organizing after the 2008 Recession

Since 1996, the folks I’ve been working with at the Workers’ Project, a research and education nonprofit, have experimented scores of times with worker representation through social organizing. We are confident and hopeful various configurations of workers have been experimenting elsewhere. We have learned some lessons from our successes and failures.

One instructive experiment focused on unemployed workers’ social organizing for voice and power during and after the Great Recession. A torrent of mostly non-union workers, newly jobless after the economic crash, were overwhelming Indiana’s unemployment offices. The state offices were disinterested or actively hostile toward unemployed workers. Meanwhile, a union foundry in Kendallville, Ind., was closing. Busted up from years of foundry work, the union president, the late Leonard Hicks, was ready to quit working but unwilling to stop representing his folks as their lives became even tougher.

To address both problems, we brought together union and non-union unemployed workers to bargain with the state through a social organizing movement, Unemployed and Anxiously Employed Workers’ Initiative (UAEWI).

First, we listened as workers talked about problems and possibilities. We developed a survey. In the unemployment office parking lot, we surveyed unemployed workers about how the office was doing, giving them a report card style survey to fill out, with a voluntary contact information form. The state immediately called in the police to stop us—claiming that we were trespassing on private property, because the public office was housed on private land. We alerted the media and the state received reams of bad press.

The media coverage revealed to unemployed workers they could have a voice and some grit. They began coming to UAEWI meetings, along with the union foundry workers in Kendallville and other union shops experiencing mass lay-offs.

Our ranks of unemployed included workers with education and experience in sociology. With their assistance, the UAEWI members developed and collected a broader survey. The survey was not for academic publication, or for an institutional or partisan agenda, but instead for collective self-representation. It had real value for public policy discussions. While the political class talk about or for unemployed workers, UAEWI represented themselves.

Membership was determined solely by a worker’s decision to participate in the survey—to voluntarily add their voice to the collective voice. We conducted education and training classes as well as group talk sessions. Within a few months, the State’s unemployment office management found themselves in a union hall across a bargaining table with the UAEWI members. Unemployed workers gained improvements in services including increased staffing and training but most importantly, a change in attitude. Most UAEWI members had never been union members; they learned how collective representation worked.

For seven more years, we continued and broadened annual UAEWI surveys. We gathered responses wherever we found voiceless workers: from folks leaving food banks, township trustee office, social service agencies, a mobile Mexican consulate. Our sampling exceeded 500 workers in 2012 and was conducted in English, Spanish and Burmese. We asked more wide-ranging public policy questions about issues such as economic development.

UAEWI members bargained in the public sphere. They provided local, state, national, and international journalists with reliable data, context, and access to socially organized workers willing to tell compelling stories. Some of the stories supported Peabody and Murrow investigative journalism awards. UAEWI members presented survey report results to other members and the public in very public formats ranging from traditional research reports to semi-theatrical presentations and even cinematic effort. UAEWI members attended and spoke before the local and state Workforce Investment Boards, Fort Wayne City Council, Indiana Economic Development Board meetings.

Just the modest act of asking drew workers out of their isolation and into solidarity. Many UAEWI members were personally transformed as they shaped public policies from the unemployment office to well beyond. They were co-creating their own futures. This was bargaining in the public sphere, bargaining with the state over the terms and conditions of our lives. Bargaining with state is foundational for worker representation in the 21st century, just as it was with Coxey’s Army in the 19th century. The UAEWI effort only updated representation with a bit of worker-driven social science.

In the last four years, learning from UAEWI effort, we have experimented with applying worker-driven social science and applying it to original NLRA intent in workplaces. In labor speak workers develop “non-certified minority status bargaining” with so-called private employers. (This less legalistic, institutional and technocratic organizing was envisioned when the NLRA was first implemented—the work of labor law scholar, the late Clyde Summers, as well as Charles Morris’s in Blue Eagle At Work documents this well.)

We helped workers develop their collective understanding and identity to, from the worm’s eye view, make things better at work. In each case, their self-organizing grew from “solidarity selfies” and a survey of co-workers’ thoughts on the terms and conditions of their employment. It is simultaneously concerted activity under the NLRA and, more importantly, intellectual property owned by the workers. We provided supportive research and education for Latina workers at a manufacturing plant; sub-contracted workers at a retail outlet; and Burmese workers at a manufacturing plant. One group faced unsafe work conditions causing miscarriages. The second faced a classic bullying boss culture. The third faced systematic ethnic and language discrimination.

We provided them access to social science, legal support, and social organizing talent, as well as a place in our community of solidarity. We supported their conversations to develop strategies to negotiate with the boss. They succeeded on their own terms. First the survey process overcame employer-imposed isolation. Workers experienced their own workplace “me too” revelations which led to collective voice. They built their representational power by developing a research report on their work lives that became collectively owned and copyrighted intellectual property with real bargaining value. Each unit could choose to share the findings with whoever they decide in the public-private spectrum: media, government regulators, elected officials, customers, suppliers, competitors, stockholders or, if willing, across the table with the boss.

The Latina factory workers met with the plant owner to present their findings. Safety conditions improved, maternity leaves were granted, healthy babies were born, and little Jose Manuel now attends our events. Some of the workers were fired, most moved on to other jobs, some won legal settlements. Most remain active in the Hispanic Workers Circle.

The subcontracted retail workers successfully confronted top national corporate management. They ended the bullying management culture and maintain an ongoing social “solidarity union” collecting no dues and participating in all Workers’ Project activities.

The Burmese factory workers efforts are ongoing. They constitute a significant portion of our Burmese Workers Circle which is developing as a workers’ and civil rights organization.

Stay tuned for more news: All groups continue full-throated participation in Workers’ Project activities and Fort Wayne’s huge annual Labor Day picnic.

We think collective intellectual property is an intriguing innovation. As workers we are robbed of our intellectual property as employers pick our brains, pick our pockets, only to pick up and leave us jobless. As consumers, our data has collected by others, monetized and politicized at our expense to benefit wealth. Intellectual property we own collectively can help us bargain with anyone in the power spectrum, from private employer to the state.

Owning our own voices and power, collective human agency, is our democracy where we work and where we live. Valuing each other, sharing our experiences, information, ideas, and respect seems a great place to start especially when you are starting at scratch. Social organizing, old school or innovative, is still solidarity.

This blog was originally published at In These Times on November 16, 2018. Reprinted with permission. 

About the Author: Tom Lewandowski is co-founder and director of the Workers’ Project in Fort Wayne, Ind.

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When Janus Backfires: A Test Case In Labor Solidarity After Fair Share

November 15th, 2018 | Jeff Schuhrke

In the aftermath of this summer’s Janus v. AFSCME Supreme Court decision attacking public-sector unions, the University of Illinois at Chicago is rapidly becoming a bellwether for how those unions might sink or swim in a world without fair share.

UIC prides itself on being one of the most diverse college campuses in the country and one of the most welcoming to working-class students. The city’s only public research university and home to a vast hospital system, UIC employs a cross section of public-sector workers including nurses, teachers, clerical workers, and maintenance workers, nearly all of whom are unionized.

In recent years, university officials have rightly issued public statements critical of government actions that harm members of the campus community, including Trump’s Muslim ban, the Illinois state budget impasse, and the House GOP’s failed attempt to tax graduate student tuition waivers. But since the Supreme Court issued its anti-union decision in the Janus case this June—threatening the collective bargaining rights of thousands of university employees—the administration has been silent. Instead, through their actions, administrators have indicated a willingness to use Janus to engage in union busting.

In the first month after the ruling came down, the university payroll office failed to deduct dues from hundreds of card-signed union members from several unions on campus, including UIC United Faculty (UICUF), the Illinois Nurses Association (INA)SEIU Local 73, and my own union, the UIC Graduate Employees Organization (GEO). In the case of GEO, this cost our relatively small local of graduate student workers a whopping $10,000.

UIC’s failure to deduct member dues in July was not only illegal, but it also effectively silenced workers who actually want to pay dues because they enjoy having workplace rights. The administration openly admitted they hadn’t deducted dues, but said they weren’t going to do anything to remedy this obvious legal violation. Instead, they’ve forced the unions into a protracted grievance and arbitration dispute, apparently hoping they can simply tire us out or outspend us in legal fees.

Further, the administration is claiming the right to unilaterally process membership revocations without notifying the unions, which goes against university HR’s own policy. They also refuse to provide us with timely information about which employees are in our respective bargaining units, which is especially harmful for GEO since our bargaining unit changes dramatically every semester. Not knowing exactly who we represent at all times makes it difficult to sign up new members and impossible to ensure UIC is deducting dues correctly.

In August, GEO discovered that the university had mistakenly deducted dues from sixty nonmembers, individuals we had never claimed were union members in the first place. Mistakes like this put the union at legal risk, since the erroneously deducted money goes into our local’s bank account and makes the local liable for “taking” it. We alerted the administration immediately and they quickly corrected the error. What we still haven’t been able to figure out is why a handful of grad workers, overwhelmed with our normal teaching and research responsibilities and representing our union as volunteers, have to tell well-paid administrators at a multibillion-dollar institution like UIC how to do their jobs.

All of this comes as our unions are in the middle of contract negotiations. Even before Janus, UIC was already prone to bullying campus workers at the bargaining table and pushing us into going on strike. In 2014, faculty with UICUF had to strike to win their first contract. Last fall, the INA-represented staff nurses and administrative nurses at the UI Hospital came within a hair’s breadth of walking off the job before an eleventh-hour agreement was reached. This past spring, grad workers at the Urbana-Champaign campus had to strike for nearly two weeks in order to safeguard tuition waivers.

It comes as no surprise, then, that the administration has tried to exploit the post-Janus confusion around dues deductions to gain an advantage in bargaining, presumably to pressure us into making concessions on issues that matter to our members in exchange for the continued existence of our unions. When GEO first questioned why the administration had not deducted July member dues, they said they would only discuss it with us in contract negotiations—never mind that abiding by existing contract language and existing law is non-negotiable.

UIC grad workers—whose baseline pay is only $18,000 and who are forced to pay up to $2,000 in fees every year—are fighting for living wages and fee waivers. UIC’s tenured and nontenured faculty are fighting for increased job security, shared governance, and raises. That should be the focus of negotiations, not bureaucratic procedures around dues deductions.

The administration is waging its most vicious attack on the underpaid Licensed Practical Nurses (LPNs) with INA at the UI Hospital, who have also been in bargaining since Janus came down. Shortly after the ruling was issued, the university decided to bring in a new lead negotiator, who proceeded to tear up previously agreed-upon articles and introduce extremely regressive proposals in their place. Among other things, UIC is demanding LPNs surrender their right to engage in virtually any kind of concerted activity at the workplace, while demanding INA publicly disavow any kind of protest carried out by its members and threatening to single out union leaders for discipline.

UIC administrators seem to have assumed that Janus would leave our unions weakened and afraid, allowing them to ride roughshod over us and impose terrible contracts. But they miscalculated.

Thanks to the administration’s handling of Janus, the campus unions are working together closely. In late July, members of INA, UICUF, SEIU Local 73, and GEO held a joint march on the boss, showing up unexpectedly at the office of the head of university Labor Relations to demand accountability around the failure to deduct dues. Clearly rattled by this, the administration has since been far more careful around processing deductions and correcting errors when we point them out.

Meanwhile, all of our unions have filed or plan to file both grievances and Unfair Labor Practice charges. GEO and UICUF are ramping up our respective contract campaigns, both building towards possible strikes next spring which might easily coincide. This week, the LPNs will be going out on an indefinite ULP strike, and members from all four of our unions will hold a unified protest and rally as the UIC Board of Trustees gathers on campus for a meeting.

The budding coalition of UIC unions should be on every labor activist’s radar, as it’s emblematic of what a post-Janus world can look like for public-sector unions: a huge uptick in hostility from the boss met with more solidarity, more organizing, more direct action, more strikes, and a deeper determination to fight for our rights as public sector workers to ensure our students get the education they deserve, and our patients get the care they deserve.

This article was originally published at In These Times on November 14, 2018. Reprinted with permission. 

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

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The Other Victims of California’s Fires: Workers Inhaling Toxic Fumes

November 14th, 2018 | Brooke Anderson

With the death toll now standing at 42 and with some 7,200 structures destroyed, officials are now calling the wildfire in Paradise, CA (dubbed the “Camp Fire”) the deadliest and most destructive in California’s recent history. Two other massive fires—dubbed the Hill Fire and Woolsey Fire are simultaneously scorching Southern California.

As frontline firefighters—including many prison laborers—continue to battle the blaze while healthcare providers work around the clock treating fire victims, millions of other workers far away from the inferno are feeling a secondary impact: toxic smoke.

In the San Francisco Bay Area, over 160 miles away from the Camp Fire, air quality dramatically declined almost immediately after the fires broke out. Over the past week, AirNow, a government website reporting real-time air quality data has shown the Bay Area hovering between 150-200 on the federal Air Quality Index (AQI), surpassing 200 (or “very unhealthy” levels) in parts of the Bay. The higher the AQI value, the more polluted the skies are and the more concern there is for public health.

This week, the Bay Area also saw the second highest amount of fine particulate matter in the air ever recorded. This substance is not only made up of smoke from charred forests, but could contain everything that gets incinerated when residences go up in flames: cars, fuel, batteries, light bulbs, cleaning products, plastics, upholstery and more.

Public health officials have been advising residents of affected areas to stay indoors to avoid the unhealthy air that can lead to headaches, dizziness, shortness of breath, coughing, wheezing, eye irritation and worse.

However, for many workers who work outdoors for a living, that’s easier said than done.

While many white collar workers don protective masks to commute to office jobs where recirculated air conditioning provides some measure of protection from the smoky skies, hundreds of thousands of farmworkers, day laborers, landscapers, construction workers, public works employees and others have no choice but to work through the harmful haze—at great detriment to their health.

Many of these workers hail from neighborhoods and worksites already facing increased levels of toxins. Compounding the situation, these are also often the very same workers who are least protected by worker health and safety regulations.

“It’s been horrible,” says Kywanna Reed, who has been working 10-hour days outside this week as a traffic controller. “I wake up with headaches. I go to sleep with headaches. I have a headache right now, and a bag of headache medicine in the truck. My whole respiratory system is messed up. My coworker had a nosebleed and went home sick.”

Reed said her employer, American Construction & Supply Inc., did not provide masks to employees.

“Employers should pass out masks and you could choose to wear them or not,” says Reed, “But right now, they’re not doing anything.”

Other workers, however, say their employers are providing masks while verbally encouraging workers to protect themselves.

Cesar Fragoso, who works as a landscaper for Planting Justice, said the non-profit nursery in East Oakland passed out masks to employees.

“I work outside every day, weeding and transplanting plants. I can feel the smoke in my nose. My eyes started itching. I’ve been coughing. The masks help, but it’s tragic that we have to go through this in order for people to acknowledge what we are doing to the environment,” says Fragoso.

A 2017 news release from the California Division of Occupational Safety and Health (Cal/OSHA) advises that “Employers with operations exposed to wildfire smoke must consider taking appropriate measures as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees).”

Those measures include “using a filtered ventilation system in indoor work areas,” “limiting the time that employees work outdoors” and “providing workers with respiratory protective equipment.”

However, as worker advocates note, holding employers accountable for taking such measures can be a challenge.

“Even though people we know from Cal/OSHA have made a tremendous effort, their presence in the field is so limited that it is really hard for them to do any kind of enforcement or implementation,” says Dinorah Barton-Antonio of the Labor and Occupational Health Program at UC Berkeley.

Other workers say they wouldn’t use a mask even it was provided, citing the already highly dangerous nature of their industries. Sixty-three-year-old carpenter Ruel Bernard smelled the smoke and started sneezing this week as he hung siding at a residential construction site, but chose not to wear a mask.

“Us older generation of construction workers, our bodies have been toxic waste dumps from the get-go. I started working in New York in 1971, breaking down plastic walls, climbing around in attics filled with insulation and dust. Every day I hurt myself at work, so at some point you’re just like ‘Fuck it,’” explains Bernard. “I know that’s a dinosaur, macho attitude. But that attitude helps us survive in this industry.”

The idea that the smoke from the wildfires is just one ingredient in an already toxic soup of working conditions resonates in farmworker communities.

Lucas Zucker is the Policy Director at Central Coast United for a Sustainable Economy (CAUSE), which works with immigrant farmworkers in Ventura and Santa Barbara Counties. During last summer’s wildfires, CAUSE distributed N95 masks to workers in the field.

“Farm work is already dangerous on the day-to-day. This area has some of the highest use of toxic pesticides,” notes Zucker. “But then with the wildfires, the ag industry pushes to harvest their crop quickly to prevent damage to crops like strawberries and avocados. So we actually see an increase in production, with obvious implications for human health. Whereas a white collar worker might be able to take time off and have that paid, for farmworkers who get paid piece rate it’s hard for them to take that time off if they’re already living paycheck to paycheck.”

While much of the conversation in the Bay Area about protection from the smoke has focused on masks, some workers point to having power on the job—whether that be in the form of a union contract or worker ownership—as one of the largest factors in ensuring worker health and safety.

“We have a union here. It helps us get through things like this because I feel like we have some camaraderie and I can take steps to take care of myself without worrying that I’ll lose my job,” says Daniel DeBolt, who works as a deckhand on the ferry boats that shuttle tourists and commuters from Oakland to San Francisco and who has been experiencing headaches and fatigue all week.

Worker power on the job was also key for Dante Ortiz from Root Volume, a worker-owned landscaping cooperative.

“In 20 years of building gardens in wildfire-prone areas like Colorado and California, I’d never had a day where we had to pull out because of air quality, but that happened last Friday. We were doing heavy excavation, trenching for retaining walls. It’s hard work. You’re breathing heavily, which is the worst thing you could be doing,” says Ortiz. “So we all decided it was time to get out of there. Being in a worker cooperative gave us the agency to make that decision for ourselves.”

However, other workers like day laborers don’t have stable employment or consistent employers.

According to Gabriela Galicia, the Executive Director of the Street Level Health Project in Oakland, CA, “Workers stand on the corner for up to eight hours a day waiting for work. Many corners are already near toxic fumes, and now workers are out in the smoke too.”

Galicia notes that many workers are already thinking about heading north in search of work rebuilding fire-devastated communities, which carries its own risks to workers’ rights and their health. Worker exploitation and wage theft has marred reconstruction in post-disaster recovery efforts across the country.

“We’ve seen too many natural disasters where day laborers have been taken advantage of,” says Galicia. “They are human beings. They’re helping to rebuild. Treat them with dignity.”

As human-driven climate change intensifies and more of California becomes engulfed in flames, workers wonder whether toiling in toxic air is becoming “the new normal”—or if there can be a just transition to a new way of relating to land and labor.

CAUSE’s Lucas Zucker explains, “Ultimately, we need state or federal disaster aid that can fill in the gaps for workers exposed to disaster or toxic conditions so that they don’t have to make that horrible choice between putting food on their family’s table or being exposed to toxic conditions.”

This article was originally published at In These Times on November 13, 2018. Reprinted with permission. 

About the Author: Brooke Anderson is an Oakland, California-based organizer and photojournalist. She has spent 20 years building movements for social, economic, racial and ecological justice. She is a proud union member of the Pacific Media Workers Guild, CWA 39521, AFL-CIO.

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Forced arbitration silences sexual harassment victims. After protests, Google finally got rid of it.

November 13th, 2018 | Jessica Goldstein

One week after 20,000-plus Google employees around the world staged a mass walkout to protest the company’s discrimination and its abysmal handling of sexual misconduct complaints against top-level executives — as the New York Times reported, multiple senior executives were granted multimillion-dollar severance packages or promotions after being accused of sexual violence — the company has announced revisions to its sexual harassment policy. Top of the list: An end to forced arbitration clauses.

In a memo to all employees, Google CEO Sundar Pichai detailed the changes employees could expect, and though the first bullet point about arbitration came with some defensive caveats (“Google has never required confidentiality in the arbitration process and arbitration still may be the best path for a number of reasons”), the change is a meaningful one that appears to be catching on among tech giants.

Chances are, you’ve signed a policy just like this one without even realizing it. As of 2017, more than half of American workers were bound by arbitration clauses, according to the Economic Policy Institute.

And if you didn’t sign one at work, you may have signed one elsewhere: In May, Uber announced it would be eliminating forced arbitration agreements for employees, riders, and drivers who make sexual assault or harassment claims against the rideshare company. Which means, until May, if you were an Uber rider, buried in the Terms & Conditions that virtually no one reads was language that forbade you from taking a sexual misconduct claim against Uber to the courts.

As the New York Times reported, Uber already allowed drivers and employees to get out of those agreements as long as they opted out within the first 30 days of signing their Uber contracts — but no such provision was in place for the riders.

Last December, Microsoft announced that it was eliminating forced arbitration agreements with employees who make sexual harassment claims. The company also declared its support for a proposed federal law that would essentially ban these still-commonplace agreements. “The silencing of people’s voices has clearly had an impact in perpetuating sexual harassment,” Brad Smith, Microsoft’s president and chief legal officer, told the New York Times.

And it was a forced arbitration clause that Fox Chairman and CEO Roger Ailes lorded over Gretchen Carlson, who sued him for sexual harassment in 2016. He fought back by pointing to the language in her Fox contract that barred her from bringing those claims to court and requesting that the court compel Carlson to engage in arbitration instead.

Carlson’s contract didn’t just stop her from bringing her claims to the justice system; it stipulated that “all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” At least a dozen women reported similar experiences, with parallels not just to the initial harassment but with Ailes’ weaponizing of legal language in their employment contracts.

Other changes to Google’s sexual harassment policy, according to Pichai’s memo, include: “more granularity” around sexual harassment investigations and outcomes; an “overhaul” and consolidation of the means by which employees can report misconduct; “extra care and resources” for Google employees throughout the reporting process, with “extended counseling and career support”; and updated and expanded mandatory sexual harassment training, with failure to comply resulting in negative performance reviews.

Left unaddressed are workers’ demands that the internal harassment report be made public and that an employee representative be added to Google’s board. Only full-time employees are covered by the changes Pichai describes; contractors, vendors, and temporary workers are not.

Google Walkout For Change, the organizers behind last week’s mass demonstration, issued a statement that “commend[ed] this progress, and the rapid action which brought it about,” but called out what the workers’ perceive as the memo’s shortcomings. Mainly, “The company must address issues of systemic racism and discrimination, including pay equity and rates of promotion, and not just sexual harassment alone.”

Last year, Senators Lindsey Graham (R – SC) and Kirsten Gillibrand (D- NY) introduced legislation that would void arbitration agreements that prevent sexual harassment victims from seeking justice through the courts. It also allows victims to file EEOC complaints in addition to pursuing legal action in court, and it prevents employers from compelling arbitration, even in cases where the employee already signed an agreement with a forced arbitration clause.

A bill similar to the one introduced in the Senate, the Ending Forced Arbitration of Sexual Harassment Act of 2017, was introduced in the House by Rep. Cheri Bustos (D-IL). It
has bipartisan support and has been referred to the House Judiciary Committee. In 2019, with a Democratic majority in place, the House might actually pass it.

This article was originally published at ThinkProgress on November 10, 2018. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

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House Democrats plan to grill Labor Department officials about tip and child labor policies

November 12th, 2018 | Casey Quinlan

After winning back the House on Tuesday, Democrats plan to grill Labor Department officials about some of their proposals, which they have safety and transparency concerns about.

Democrats have long had questions about the U.S. Department of Labor’s approach on issues such as child labor in health care jobs and not informing the public about an analysis that did not favor one of their proposed regulations on tipping.

Rep. Bobby Scott (D-VA), who will be chair of the Education and Workforce Committee, told Bloomberg Law about his plans and said, “If you’re having a regulatory change, the law requires you to produce the evidence to support the change.”

In December, the department proposed a rule rescinding parts of Obama-era tip regulations and allow employers who pay the minimum wage to take workers’ tips. The department said it would allow “back of the house” workers, such as dishwashers and cooks, who don’t typically receive tips, to be part of a tip-sharing pool. But the rule wouldn’t actually prevent employers from just keeping the tips.

According to Economic Policy Institute research, tipped workers would lose $5.8 billion a year in tips as a result of this rule. Women in tipped jobs would lose $4.6 billion annually.

After doing an internal analysis of the proposal, Department of Labor decided to scrub it from its proposal after it also discovered workers would be robbed of billions of dollars. Staff then changed the methodology to get a more favorable analysis, but Labor Secretary Alexander Acosta and his team were reportedly unsatisfied with even that analysis, so with the approval of the White House, they took it out. Later reports from Bloomberg showed that White House’s Office of Information and Regulatory Affairs (OIRA) staff said the proposal of changes to tipped worker pay rules should include professional estimates of the impact for tipped workers but Mick Mulvaney, director of the Office of Management and Budget and acting director of the Consumer Financial Protection Bureau, worked with Acosta to scrap the analysis entirely, Bloomberg Law first reported.

In December, Saru Jayaraman, president of Restaurant Opportunities Centers United, a non-profit that advocates for improvement of wages for low-wage restaurant workers, said the proposed rule would push a majority-women workforce “further into financial instability, poverty, and vulnerability to harassment and assault.”

Democrats on the committee, as well as other Democrats in Congress, wrote a letter to the department in February stating that if the department withheld the analysis, it “raises serious questions about the integrity of the Department’s rulemaking process.” They also demanded more information about meetings and further communication about the analysis.

Democrats also wrote a letter to Acosta and Mulvaney in August citing their concerns about a department proposal to allow teenagers to work more hours in health care positions that under current regulations, are considered unsafe for them. The department has said that exempting power-driven patient lifts from these regulations makes sense because use of the equipment would be “safer for workers than the alternative method of manually lifting patients.”

The department has said that teenagers would have to receive 75 hours of training and at least 16 hours of supervision by a nurse in the proposed rule.

But in their August letter, Democratic lawmakers said they want scientific reviews from the National Institute for Occupational Safety and Health.

“While we believe in expanding job opportunities for young workers, I am sure you would agree that this should not be done at the expense of their health, safety, and lives,” Democratic members of Congress wrote.

This article was originally published at ThinkProgress on November 10, 2018. Reprinted with permission.

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

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Democrats have the House. They should use it to show how they'll fight back in the war on workers

November 9th, 2018 | Laura Clawson

Winning the House doesn’t just let Democrats block some of the worst things Donald Trump wants from Congress. It also offers a chance to show what Democrats would do if they had the chance. For years Democrats have been introducing great legislation that Republicans would never allow to even come to a vote. Now is the chance to pass some of that in the House and let Senate Republicans explain why they’re not taking action.

Let’s start with the minimum wage. The federal minimum wage has been stuck at $7.25 an hour since 2009, while red states like Missouri and Arkansas (most recently) have voted to increase it, showing how deep and broad voter support is. Democrats should be able to pass a substantial minimum wage increase in the House quickly.

Democrats should pass a Pregnant Workers Fairness Act to strengthen protections for pregnant women and prevent abuses like these.

Paid family leave. Sick leave. Protections for Dreamers. These are all obvious, necessary things with widespread support.

But you can go deeper: “Workers should not be forced to sign away their rights as a condition of employment,” Celine McNicholas and Heidi Shierholz write. Democrats should undo one of the worst recent Supreme Court decisions with the Restoring Justice for Workers Act, which allows workers to have their cases against employers heard in a real court, not a rigged arbitration process.

No, this stuff isn’t going to get through the Senate or Donald Trump. But Democrats, show us what you would do if you could. Let the country know that while Republicans use Congress and the presidency to dismantle health care and give big tax breaks to corporations, Democrats would use it to raise the minimum wage and protect pregnant workers and let workers have their day in court.

This blog was originally published at Daily Kos on November 10, 2018. Reprinted with permission. 

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

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Hiding Injuries at Tesla: Where The Worker Still Doesn’t Matter.

November 8th, 2018 | Jordan Barab

Under-recording of workplace injuries and illnesses is bad, and far too common. But at the automaker Tesla, in Fremont, California,  under-recording is more than a paper exercise in deception — at Tesla it means withholding needed medical treatment of injured workers so that their injuries aren’t report on OSHA logs.

We wrote previously about reports that workers are getting hurt at Tesla and that many of those injuries are not being recorded.  Earlier this year, Reveal reporters Will Evans and Alyssa Jeong Perry documented how Tesla put style and speed over safety, undercounted injuries and ignored the concerns of its own safety professionals. CalOSHA has inspected the company a number of times and found recordkeeping violations.  Now Evans shows the many ways that Tesla is keeping injuries off the OSHA logs.

Despite a clear pattern of inaccurate reporting, federal OSHA is unable to cite patterns of under-reporting after Congress repealed OSHA’s “Volks” regulation at the beginning of the Administration. Throughout OSHA’s history, the agency had been able to cite employers who violated OSHA’s requirement to keep accurate records for five years. OSHA had issued a regulation addressing a court ruling against that practice, but Congress used the Congressional Review Act to repeal it. No OSHA can’t cite recordkeeping violations longer than 6 months before a citation is issued, making it impossible to cite patterns of violations like those committed at Tesla.

California has modified these restrictions slightly by allowing the agency to cite employers for recordkeeping violations six months from when Cal/OSHA first learns of the violation, instead of six months from when the violation occurred. But the bill was signed too late for the agency to take action against Tesla.

Background

Under-reporting injuries and illnesses on OSHA logs is nothing new.  Unlike fatality reporting, injury and illness reporting is conducted by employers. The Bureau of Labor Statistics (BLS) estimated in 2016, that nearly 3.7 million workers across all industries, including state and local government, had work-related injuries and illnesses that were reported by employers. But due to documented and widespread underreporting of workplace injuries, experts estimate that the true number is closer to  7.4 million to 11.1 million injuries and illnesses a year — two to three times greater than BLS estimates.  Much of the undercounting is the result of employers discouraging workers from reporting injuries and illnesses, either through direct retaliation or through more subtle means such as incentive programs or retaliatory drug testing.  That’s why OSHA’s “electronic recordkeeping regulation,” issued in 2015, forbids employers from retaliating against workers for reporting injuries and illnesses. The Trump administration recently issued a memo weakening the enforcement of that language.

In order to understand Tesla’s strategy, you need to understand how OSHA defines a “recordable injury.” According to OSHA regulations, work-related injuries must be recorded on OSHA injury logs if they require medical treatment beyond first aid, if they result in days away from work or if the worker is assigned job restrictions due to the injury.  Tesla’s practices were designed to avoid anything that triggers recording, according to former medical personnel who worked at Tesla.

To ensure that fewer injuries would be recorded, Tesla hired Access Omnicare, headed by hand surgeon Dr. Basil Besh, to run its factory health center. Access Omnicare promised Tesla it could help reduce the number of recordable injuries and emergency room visits. Reveal obtained a copy of Access’s proposal which stated that  “Access Omnicare’s model, with more accurate diagnoses, reduces “un-necessary use of Emergency Departments and prevents inadvertent over-reporting of OSHA (Occupational Safety and Health Administration) recordability.”

“Over-reporting?”

How to Under-count at Tesla? Let Me Count the Ways

To under-record, and under-record effectively requires some creativity.

Access Omnicare had a rule that injured employees could not be given work restrictions. According to a former Access physician assistant, Anna Watson.

No matter what type of injuries workers came in with – burns, lacerations, strains and sprains – clinic staff were under instructions to send them back to work full duty, she said. Watson said she even had to send one back to work with what appeared to be a broken ankle.

A medical assistant who formerly worked at the clinic remembered an employee who was sent back to work even though he couldn’t stand on one of his feet. Another employee passed out face down on the assembly line – then went back to work.

“You always put back to full duty, no matter what,” said the medical assistant.

Ambulances were highly risky as well, if your goal is to hide serious injuries.  Tesla forbids staff from calling 911 without permission after workers have been injured –even when fingers have been severed or employees have suffered serious injuries. Instead they put them in a Lyft or Uber and send them to a clinic after which they’re put back on the assembly line with no work modifications, even if they can barely walk. One worker’s back was painfully crushed when a hood fell on him. “I couldn’t walk, I couldn’t sit down. I couldn’t even stand up straight,” Stephon Nelson recalled. But Tesla refused to call 911 or send him to the hospital in an ambulance, putting him in an Uber instead.

Why? To save money? More likely because “911 logs become public records. And first responders, unlike drivers for ride-hailing services, are required to report severe work injuries to California’s Division of Occupational Safety and Health, the state’s workplace safety agency.”

Other tactics Tesla used were to claim that some injuries and illnesses were not work-related and refuse treatment to temporary employees:

Watson recalled one worker who had passed out on the job and went to the hospital because of her exposure to fumes in the factory. Even though a work-related loss of consciousness is required to be counted, no such injury was recorded on Tesla’s injury logs.

Temp workers hurt on the production line also were often rebuffed by the clinic, said former clinic employees. At one point, there was a blanket policy to turn away temps, they said.

Tracy Lee developed a repetitive stress injury over the summer when a machine broke and she had to lift car parts by hand, she said. Lee said the health center sent her away without evaluating her because she wasn’t a permanent employee.

By law, Tesla is required to record injuries of temp workers who work under its supervision, no matter where they get treatment. But not all of them were.

Beware the Night

Getting hurt during the day is bad enough. But getting hurt at night is especially dangerous because there are no doctors or nurses on duty.

Two medical assistants who used to work there said they often were left on their own – one on duty at a time – and struggled to tend to all the injured. Both had to do things such as take vital signs, which medical assistants aren’t allowed to do without on-site supervision, according to the Medical Board of California. Reveal granted them anonymity because they fear speaking out will hurt their careers. Dr. Basil Besh said no one works alone. Besh is hand surgeon who owns Access Omnicare which

For a severely injured worker lying on the assembly line, it could take 10 to 15 minutes for a medical assistant to arrive and then contact on-call doctors, a medical assistant said. Getting a code for Tesla’s Lyft account was a drawn-out process that could take hours, she said.

The medical assistants said they were alarmed and uncomfortable with the doctors’ orders to use Lyft because they worried some patients could pass out or need help en route. One worker directed to take a Lyft was light-headed and dizzy. Another had his fingers badly broken, contorted and mangled.

Moving Right Along

And despite promises from Tesla CEO Elon Musk to do better, Tesla has not cleaned up its act, according to Watson:

Many more injured workers never were counted, she said.  Tesla’s official injury logs, provided to Reveal by a former employee, show 48 injuries in August. Watson reviewed the list for the three weeks she was there and estimated that more than twice as many injuries should have been counted if Tesla had provided appropriate care and counted accurately.

And despite the fact that there is evidence that Tesla is violating the law, CalOSHA has not responded to the information Watson supplied to them.

Watson called Cal/OSHA officials to insist they investigate her complaint. She told them that she had detailed knowledge of a system that undercounted injuries by failing to treat injured workers. But Cal/OSHA officials told her that it wasn’t the agency’s responsibility, she said. They suggested contacting another agency, such as the medical board or workers’ compensation regulators.

Watson, meanwhile, has moved on to a new job

She said she just wants someone to make sure that Tesla workers get the care they need. “You go to Tesla and you think it’s going to be this innovative, great, wonderful place to be, like this kind of futuristic company,” she said. “And I guess it’s just kind of disappointing that that’s our future, basically, where the worker still doesn’t matter.”

This blog was originally published at Confined Space on November 6, 2018. Reprinted with permission.

About the Author: Jordan Barab wasDeputy 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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Minimum wage increases pass in Arkansas and Missouri

November 7th, 2018 | ThinkProgress Staff

Voters in Arkansas and Missouri have approved a ballot initiative that would significantly raise the minimum wage in their states, affecting nearly 1 million workers.

Despite President Donald Trump carrying both Arkansas and Missouri during the 2016 election and disapproval from Republican state legislatures, voters overwhelmingly voted in favor of a minimum wage hike, with 68 percent in favor in Arkansas and 61 percent in favor in Missouri.

In Arkansas, the current $8.50/hour minimum wage will be gradually increased to $11/hour by 2021, while in Missouri, the state’s measly $7.85/hour minimum wage would slowly reach $12/hour by 2023. That amounts to $455 million more in pay for Arkansas workers by 2021 — an average of $1,520 each — and more than $1 billion for Missourians by 2023, a total of roughly $1,485 per worker.

According to Rewire, the people most affected by the ballot initiatives are working women and mothers. Amy Wilson, a single mother of three children, works as a school custodian in Russellville, Arkansas and told the publication that an extra $1,520 in her pocket means a lot. She said she would be able to take care of “a lot of minor needs [that] add up over time,” like replacing car tires or buying clothes for her children somewhere other than Salvation Army.

While President Trump likes to boast that the economy is booming and wages are increasing, not everyone is feeling the effects. There are millions of workers across the country who work full-time, yet can’t afford to make rent every month or cover medical expenses.

Arkansas and Missouri join a growing list of states where wages have been raised in the face of the stagnant $7.25 federal hourly minimum wage.

Because both state legislatures are controlled by Republicans, fair wage activists have found that navigating politicians by raising the minimum wage via ballot initiatives is most effective. The legislature, however, could still react negatively to the results of the ballot initiative.

Such backlash would hardly be unprecedented. In Washington, D.C., the city council recently overruled its constituents by reinstating a tipped wage, and in Missouri, state lawmakers passed a law that prevented cities from raising the minimum wage on a municipal level. The law prevented St. Louis workers from earning a $10/hour minimum wage.

This article was originally published at ThinkProgress on November 7, 2018. Reprinted with permission. 

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant on the NPR Business Desk. She has also worked for NPR member stations WFSU in Tallahassee and WLRN in Miami.

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