Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘America’

Why buying Made-in-America matters, and how to do it

Sunday, February 8th, 2015

david“There’s something happening right here in this country. It’s the sound of America…working with American materials in American factories.”

The excerpt comes from WeatherTech’s second Super Bowl commercial, watched by millions of viewers on Super Bowl XLIX (if you missed it, check it out here). Highlighted by this commercial, something besides Russell Wilson’s fourth quarter goal-line pass was on America’s mind that night.

Made in America matters, both for the future of America’s economy and for workers.

The U.S. manufacturing industry has seen modest growth recently. Although American production has declined in the last forty years, manufacturing activity has been growing more rapidly than the overall U.S. economic GDP for the first time in 50 years. According to the Bureau of Economic Analysis, manufacturing has contributed $2.09 trillion to the U.S. economy, up from $1.73 trillion in 2009.

This growth is motivated by many factors including a decreasing cost advantage of outsourced labor, competitive energy costs, and a desire to manufacture closer to customers. To be sure, this is no reason for workers to be overly optimistic. The absolute number of U.S. manufacturing jobs has declined 30% from 2000 to 2014. But his sort of information does show hope for an industry that’s an important part of the U.S economy.

If every American family spends an extra $49.95 on American-made goods during the holiday season, 150,000 American jobs would be created. For every $1 spent on American-made goods, it invests an additional $1.32 in the U.S. Economy. That means money spent here, stays here, and creates more wealth for everyone.

The manufacturing industry also creates middle class jobs. The average manufacturing worker in the United States earned $77,506 annually including pay and benefits. This is higher than the average worker in all industries, who earned $62,546. And American manufacturing workers earn every penny of it. Manufacturers in the United States are the most productive in the world, two and a half times greater than 40 years ago and far surpassing worker productivity of any other major manufacturing economy.

And jobs aren’t just created in the warehouse. Not only does buying American manufacturing employ production workers, inspectors, sorters, machinists, and team assemblers; manufacturing also creates higher skill service jobs like accountants, lawyers, engineers, and operations professionals. Currently in the United States, 12 million Americans hold jobs directly in manufacturing, while another 5.6 million workers are supported by this industry. The manufacturing industry also drives more innovation than any other sector, performing 75% of private sector R&D in the United States.

So how do I buy American made?

If you don’t know where to look, finding American-made products at your local retail store can be a challenge. It’s not that these products don’t exist; you may just not know where to look. Here are three resources to help:

  • Union Plus – Union Plus was founded by the AFL-CIO to provide consumer benefits to union members. On Union Plus’ Buy Union Made page, you can find lists of union-made products such as beer, appliances, pet supplies, and more. You can also find the nearest union grocery store with the new UFCW Mobile app.
  • Labor 411’s Directory – A one-stop resource for people looking to buy union-made, American goods and services. Comes in both print and online.
  • Union Label & Service Trades Department, AFL-CIO – The UL&STD was founded in 1909 to promote the products and services produced in America by union members — especially those products and services identified by a union label, shop card, store card and service button. Check out their Do-Buy lists, as well as the Boycott List, to help you shop ethically.

About the Author: David Tindell is a Marketing Assistant for Union Plus. He joined Union Plus in 2012, and has written for the Union Plus Consumer Bargains blog since 2013.

This article was written by David Tindell of Union Plus. Union families who want to stay updated on the benefits of union membership can sign up for Union Plus’ free E-Newsletter here.

Third Circuit Sends Wake Up Call to Employers About Discriminatory Hiring Practices

Thursday, April 30th, 2009

In the spirit of National Equal Pay Day on Tuesday, I wanted to share the important gender discrimination case of Donlin v. Phillips Lighting North America Corp. decided by the Third Circuit last week.

Here’s what happened in the case.

Colleen Donlin was hired by Phillips as a temporary warehouse employee at its Mountaintop, Pennsylvania distributions center. Her job was to help prepare orders for shipment.

Like other temporary workers, Donlin applied for a permanent position. She was not hired and her eight month temporary assignment ended.

Donlin got two other jobs after she left Philips. At the first job, Donlin earned  $14.70 an hour, but it was a 32-mile commute.

She left that job and found a job closer to home at which she made $13.00 an an hour. Had she been hired by Philips, she would have earned $14.67 an hour as a base salary

Donlin learned that Phillips hired several men for the position she had applied for after it refused to hire her.  She filed a Title VII lawsuit for gender discrimination,  won the trial and was awarded damages.

In discrimination cases, the compensation which can be awarded by a judge or jury is designed to make victims whole and put them in the position they would have been in had they not been discriminated against.

A winning employee can recover “back pay” and “front pay.”

  • Back pay represents losses from the the time of the discrimination up to the time of trial.
  • Front pay represents the losses that the victim will experience in the future if he or she does not find a comparable position.

Based on the premise that Donlin would have worked for another 25 years, an advisory jury awarded Donlin:

  • $63,050 in back pay
  • 395,795 in front pay
  • for a total of $458,845

The award was based on the difference in pay and benefits between the $13.00 hour job she was holding at the time of trial and the $14.67 hour job she would have had at Phillips had she not been discriminated against when Phillips refused to hire her.

The judge modified the front-pay award by reducing it to account for 10 years of damages instead of 25, finding that a 25 year period was too speculative — so the total award was $164,850.

Phillips appealed and the decision came out last week. The issues decided are very important for both victims of discrimination and their lawyers.

Here are the highlights:

1. Front Pay:

Donlin was in her 30’s at the time of her employment with Phillips and 40 at the time of trial. The question presented was: was how far into the future can a younger employee like Donlin claim economic loss?

For those of us who represent individuals in employment cases, the issue has always been a hard one to deal with when it comes to a younger worker.  The reason is because past damages can be calculated with certainty, but future losses can not:

  • Is the person going to get another job?
  • If so when and for how much?
  • How do we know what someone will be doing 20 or 30 years from now?

When we represent someone in an age discrimination case, and the terminated employee is 55 for example,  it’s easy for us to project damages until age 65 or 70  (whatever the age is that the person was likely to retire).

It’s not speculative to assume that the person would have worked for another 10 or 15 years, and it’s not hard to calculate what he or she would have earned and what the total losses are.

It’s much more complicated when we represent a younger person.  Since the law does not allow “speculative” damages, it’s simply very difficult to predict how far into the future the court will allow us to project.

In this case, the  district court judge ruled that Donlin was entitled to receive damages for economic loss for 10 years into the future. The Court of Appeals affirmed the ruling :

We note that there will often be uncertainty concerning how long the front-pay period should be, and the evidence adduced at trial will rarely point to a singe, certain number of weeks, months , or years.  More likely, the evidence will support a range of reasonable front-pay periods.  Within this range, the district court should decide which award is most appropriate to make the claimant whole …

We find that the District Court did not abuse it’s discretion when it awarded Donlin front- pay for 10 years.

This means that we now we have a decision with a sound analysis for front -pay involving a relatively young employee from a high level court.  It’s a decision that other victims and their lawyers can rely on and it’s a decision that carries considerable weight. It’s very good news.

2. Mitigation

In an employment case, the employee  who has lost a job has a duty to mitigate — which means that she  (or he) must make reasonable efforts to minimize her loss of income. The precise language of the statute says

Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

In other words:

  • a person who is claiming damages in an employment case has a duty to look for work
  • damages into the future end if an employee gets an equivalent job or better job

In this case, Donlin first got a job in which she earned $14.70 and hour.  The problem was that it was a 32 -mile commute. She worked at the job for two years, and then found a job closer to home at which she made $13.00 an an hour.

She would have received $14.67 an hour as a base salary had she been hired at Philips.

Phillips argued:

  • Donlin’s “voluntary transfer” to a lower-paying job was inconsistent with her “duty to mitigate”
  • Phillips should not have to make up the difference.

Donlin argued:

  • once you factor the cost of the commute
  • the the two jobs were substantially the same.

The Court of Appeals agreed with Donlin:

An employee need not seek employment which involves conditions that are substantially more onerous than [her] previous position…

It is well settled that a claimant has not failed to make a reasonable effort to mitigate damages when she refuses to accept employment that is an unreasonable distance from her residence.

[T]he job at Mission constituted a substantially equivalent opportunity as that available at Romark.  Donlin should not be penalized for accepting that opportunity.

Accordingly, the District Court’s finding that Donlin sufficiently mitigated her damages was not clearly erroneous …

Certainly our clients still have a duty  to mitigate and make a “reasonable effort” to find comparable work if they intend to claim damages in a lawsuit.  This decision does not change that fact.

But this decision certainly delivers great news since it clearly states that a person is not required take a job which places an onerous burden on him (or her)  in order the meet that obligation.

On many fronts,  this is a hugely helpful case on questions of damages in employment cases. While we deal with these problems every day, it’s certainly not every day that we get federal circuit court case law on these particular issues.

It’s also a wake up  to employers to be careful about their hiring practices.

The bottom line is that Donlin worked as a temp at a company for eight months. Because she was discriminated against when the company hired a man instead of her into a permanent position, she is now entitled to all of her past losses plus 10 years of damages into the future. That’s a big win.

Images: images.businessweek.com

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

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