Outten & Golden: Empowering Employees in the Workplace

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Black Workers Say Walmart’s Background Checks Are Racially Discriminatory

Thursday, April 25th, 2019

When Walmart announced in January that it was “in-sourcing” its Elwood, Illinois, distribution center, workers were cautiously optimistic.

Since it opened in 2006, the 3.4 million-square-foot warehouse has been operated by Schneider Logistics, a third-party contractor, which in turn hired workers through temp agencies. Walmart’s plan to absorb several of its outsourced warehouses nationwide meant an end to this web of subcontracting, which labor organizers charge is one of the company’s union-busting tactics.

The retail giant also announced that it would rehire as many current warehouse workers as possible, with raises in starting pay and benefits. Mark Balentine, who has performed quality assurance in the Elwood warehouse for three years, says he was offered and accepted the same position as a Walmart employee. It came with a pay bump from $16.35 an hour to $18.65.

“I was absolutely excited,” says Balentine.

But last month, just three weeks before Walmart was set to take over, Balentine says he received an e-mail informing him he was ineligible to work for the company based on the results of a criminal background check. He has a conviction for cocaine possession on his record that dates back to 1999.

Now 52, Balentine says he mentors youth leaving prison and is an ordained deacon at his Baptist church in Auburn-Gresham. He says the conviction hasn’t posed a problem for him in years.

Balentine is one of two Black workers who filed racial discrimination charges against Walmart this week, alleging that the company’s background check policies had a disparate impact on African Americans in the Elwood facility.

Between 100 and 200 other African American workers may have been affected, according to Chris Williams, an attorney with the National Legal Advocacy Network, which filed the complaint with the Illinois Department of Human Rights and the U.S. Equal Employment Opportunity Commission (EEOC). A class-action suit could follow.

Walmart says its hiring practices exceed state and federal legal requirements and provide candidates with criminal records “a meaningful opportunity to put the record in context.”

“Retaining as many existing employees as possible has always been the goal of our transition at the Elwood distribution center, and we hired hundreds of those workers,” said spokesperson Kory Lundberg in a statement e-mailed to In These Times. “We understand the importance of providing second chances and our background checks include a thoughtful and transparent review process to help ensure everyone is treated fairly.”

But the complaint alleges that the company failed to perform any such individualized review of African American workers’ eligibility, which is part of guidance on employers’ use of criminal background checks issued by the EEOC in 2012.

Instead, according to Balentine, laid-off workers were given “$250 and a slice of pizza” and told they could reapply through the same process in 60 days.

“They told me to ‘roll the dice and try again,’” says Balentine. “And I was like, ‘this is my life.’”

Lundberg said that some candidates with criminal records “were offered a position after a personalized review of their offense,” but did not provide further details by press time.

According to the complaint, “other non-African employees with criminal backgrounds have been permitted to continue working at the Walmart distribution center.”

As many as 100 million Americans have some form of criminal record that can impact their access to jobs, housing and other public services. People with felony convictions, which are most likely to result in exclusion, represent an estimated 8 percent of the overall U.S. population and 33 percent of the African American male population.

A growing number of states and municipalities have attempted to address racially discriminatory hiring through “Ban the Box” laws that bar government employers or contractors from including questions about criminal background on job applications. Twelve states also bar private employers from doing so.

But racial discrimination in the temporary staffing industry is notoriously difficult to address. A series of lawsuits in Illinois and elsewhere have accused staffing agencies of discriminating against Black workers by, among other things, requiring them to submit to criminal background checks to which other workers are not subjected.

Exclusion of workers with a criminal record is “a huge issue in the warehouse industry,” says Roberto Jesus Clack, associate director of Warehouse Workers for Justice. The Illinois-based worker center holds monthly expungement workshops and organized meetings for the group of Elwood workers.

Elwood is located in Will County, which is home to more than 300 warehouses in total and a maze of temp agencies. When workers have raised complaints about wage theft and horrific working conditions—including during a landmark 2012 warehouse strike—a maze of subcontracting has made it difficult to hold either Walmart or Schneider Logistics responsible. While insourcing could represent “a step in the right direction,” says Clack, Walmart introducing new barriers to employment is instead a step backward.

“I’m looking out for the person behind me,” says Balentine. “The 17-year-old that’s getting in trouble today and who sees what happens to me and then he decides, ‘What’s the point in changing? They aren’t going to give me a chance anyway.'”

This article was originally published at In These Times on April 25, 2019. Reprinted with permission. 

About the Author: Rebecca Burns is an award-winning investigative reporter whose work has appeared in The Baffler, the Chicago Reader, The Intercept and other outlets. She is a contributing editor at In These Times. Follow her on Twitter @rejburns.

Black workers are still not sharing in the bounty of nation-wide employment gains

Wednesday, November 21st, 2018

Embedded in the nation’s increasingly favorable unemployment statistics — the country is currently in the midst of a record decline in the number of out-of-work Americans — is the persistent fact that black workers aren’t sharing equitably in this rampant job growth.

In September, the most recent period when figures are available, approximately 134,000 jobs were created and the national unemployment rate dropped to 3.7 percent, according the Bureau of Labor Statistics. That’s fantastic news for the nation at large.

But if you drill down into the bureau’s figures, you’ll find that black workers are not celebrating on par with their white colleagues. At 6 percent, the black unemployment rate is nearly twice that of white workers, at 3.3 percent. By way of comparison, Latino workers posted a 4.5 percent unemployment rate, and the Asian rate was nearly equal to whites’ at 3.5 percent.

(October’s unemployment figures are scheduled to be released on Friday. Analysts expect a continuation of these trends with little-to-no narrowing of the gap between white and black employment.)

In a recently released state-by-state review of unemployment rates by race and ethnicity for the third quarter of 2018, Janelle Jones, an analyst at the nonpartisan Economic Policy Institute, found that 12 states have a black unemployment rate that is at least twice as large as the white unemployment rate. What’s more, in each of the 21 states and the District of Columbia, for which figures were available, the black unemployment rate was higher in each of them than it was for white Americans.

Jones’ findings further underscore the fact that even as the nation climbs back from its pre-recession unemployment level, the bounty isn’t filling the pocketbooks of black Americans. For instance, she found the nation’s highest black unemployment rate was in the District of Columbia at 12.4 percent, producing a 6.2-to-1 disparity with white workers in the Nation’s Capitol. Worse, the District has the dubious distinction of having the highest black unemployment rate during the previous eight quarters — this despite the fact that Washington, DC and its surroundings are the third-richest metropolitan area in the country and home to the most affluent population on the East Coast.

Other high unemployment states for black workers included Illinois (9.3 percent), Louisiana (8.5 percent), Alabama (7.1 percent, and New York (7 percent). The lowest unemployment rate for black Americans were Massachusetts and Virginia, both with (3.8 percent).

Among Latino workers, the highest state unemployment rate is in Nebraska (5.9 percent), followed by Connecticut (5.7 percent), Arizona (5.6 percent), Pennsylvania (5.6 percent), and Washington (5.6 percent).

In two states — Colorado and Georgia — the Hispanic unemployment rate was lower than the white unemployment rate. In Colorado, Latino workers’ 2.3 percent unemployment rate was lower than the 2.9 percent rate for white workers, and in Georgia, Latino unemployment rate was 2.8 percent, compared to 3 percent for white workers.

“As the economy continues to recover, all racial and ethnic groups are making employment gains,” Jones said in a statement released with her report earlier this week. “But policymakers should make sure that the recovery reaches everyone before taking their foot off the gas.”

Bloomberg columnist Justin Fox agreed, writing recently that “[b]lack Americans really have been making employment gains in recent years – and they’ll probably keep making them as long as this expansion continues. Which is one more reason to root for it to keep going.”

As Fox described it the falling unemployment rate is, on the whole, a positive development for all Americans, especially black workers in their “prime working” ages between 25 and 54. At present, he said the gap between black and white workers in that realm is at an “all-time low” (noting that such figures can only be compared since 1994 when the federal government began reporting “prime working age” economic figures).

But Andre Perry, a Brookings Institution Metropolitan Policy Program Fellow, cautioned against celebrating too soon. In a recent U.S. News & World Report interview he argued it’s way too early to cheer the economy’s recovery so long as a racial gap exists in employment.

“We need to start talking about prosperity and not whether people have a job. We need to start looking more deeply at equality,” said Perry, who focuses his research on majority-black populated cities in the U.S. “Because when black folks are doing well, that really means America is doing well.”

In other words, Perry says the celebratory narrative on the economy is almost exclusively the story of impressive gains for white workers and tolerance for black workers who continually lag behind.

“Right now, when we’re looking at full employment, what we’re really saying is this is a state of white employment,” Perry said. “We’re willing to base our monetary policy upon that stage and not really cater to the black unemployment rate that is still wanting. You can be at full employment in one population and be in a recession in another. . . . We need to start recognizing these disparities, or we’re going to become more comfortable with them.”

This article was originally published at ThinkProgress on November 2, 2018. Reprinted with permission. 

About the Author: Sam Fulwood is a columnist for ThinkProgress who analyzes the influence of national politics and domestic policies on communities of color across the United States.

Black Livelihoods Matter: The Civil Justice System Needs Reform Too

Friday, October 14th, 2016

downloadThe Black Lives Matter movement has brought much-needed attention to the disparity in the way our criminal justice system treats African Americans.

But there’s another side of American justice that matters too: our civil courts.

In the United States today, the civil justice system is the last line of defense for workers who have faced discrimination on the job. And not just for individuals, either. Lawsuits and the threat of lawsuits have been the most effective way to force recalcitrant employers to take action against discrimination.

Still, our courthouses are not open to all. As a black lawyer who focuses on employment discrimination, I’ve seen first-hand how access to the courts, the racial makeup of law firms and the way cases are handled can throw up barriers to justice.

Here’s a step-by-step guide to how black workers’ cases get derailed.

Step 1: Black workers are more likely to represent themselves.

Few people can afford to pay an employment attorney up front. Instead, most lawyers in the field work on contingency—meaning they will only get paid if the worker receives a cash award. That makes these cases financially risky for lawyers, who might get nothing for hours of work if the case is dismissed. As a result, it can be hard for many workers to find an employment lawyer.

But for black workers, the problem is even worse. A study commissioned by the American Bar Association found that black plaintiffs are 2.5 times more likely than white plaintiffs to file employment discrimination claims pro se, or without a lawyer. Other racial minorities, including Hispanics and Asians, are 1.9 times more likely to file pro se than their white counterparts.

Winning an employment case is already difficult, even under the best circumstances. Pro se litigants, assuming that they can even get their cases inside a courtroom, are almost guaranteed to lose—no matter how strong the details of their case may be.

For example, litigants may be required to file their case with the Equal Employment Opportunity Commission within a certain number of days, and that time limit varies by state. Workers representing themselves may miss that deadline, and lose their cases before they even start.

Step 2: Attorneys are less likely to take cases involving black workers.

Even when black workers have found an attorney who might be interested in their case, they are less likely to get help. The ABA study found that the way employment attorneys screen their cases can contribute to the racial disparity.

In some cases, employment attorneys charge expensive consultation fees before considering a potential client. Black workers who can’t afford those fees never get in the front door. In other cases, the ABA study found that attorneys favored clients based on criteria that weren’t related to the merits of their case, such as perceived demeanor, mannerisms or a personal referral.

The disparity in pay between black and white workers adds to the problem. Because lost wages are a major part of the case, workers who make less money will receive smaller payouts. For employment attorneys who have to work for free upfront, that means less money at the back end.

Step 3: Juries aren’t always sympathetic to black workers.

Even when employment cases make it to trial, the worker still has only a 15 percent chance of winning, compared to a 50 percent win rate for other types of plaintiffs.

That means employment cases are particularly sensitive to jurors’ beliefs and prejudices. If a jury does not find the plaintiff’s story credible, or doesn’t believe that discrimination occurred, or doubts whether discrimination is all that common anyway—the worker loses.

In addition, damages for emotional distress are allowed in many employment discrimination cases. But jurors may not be as willing to provide them to black workers even when they have found in favor of them overall due to prejudices about their mythical inner strength or whether discrimination is serious.

The end result is that the same discrimination that black workers face in the workplace can also negatively affect them in the eyes of a jury.

Step 4: Even if they win, they are often awarded less money.

Workers who win their cases can receive money for emotional distress, punitive damages intended to send a message to the employer and lost wages. Under federal law, those first two amounts are limited between $50,000 and $300,000, levels set in 1991 that have not been adjusted since. (If they had been pegged to the Consumer Price Index, the cap would be closer to $525,000.)

Generally, the largest award in employment cases is for lost wages. Employees who win their cases can only get the difference between what they made since being illegally fired and what they would have made had they not been fired.

Black employees, on average, make less than white employees. As a result, black employees bringing discrimination cases are disproportionately affected by caps for damages for lost wages. This means that these employees have less leverage to negotiate an out-of-court settlement with employers prior to trial because of the low risk to the employer of having to pay a significant judgment—if the employee prevails at trial. As a result, employers may have less incentive to adequately address discrimination against black employees.

The deep-seated flaws in our civil justice system cannot be ignored. It’s a problem that needs to be addressed by employers, legal professionals, and lawmakers. There needs to be a serious examination as to why black employees who have often been unlawfully excluded from the workplace are then again denied recourse through the legal system.

This article originally appeared on the Huffington Post on October 10, 2016. Reprinted with permission. 

Phillis h. Rambsy is a partner with the Spiggle Law Firm, which has offices in Arlington, Virginia, Washington, D.C., and Nashville, Tennessee. Her legal practice focuses on workplace law where she represents employees in matters of wrongful termination and employment discrimination including racial discrimination, pregnancy discrimination, and other family-care issues such as caring for a sick child or an elderly parent. To learn more, visit www.spigglelaw.com.

Here’s Some History to Help Understand the Racial Wealth Gap

Wednesday, January 27th, 2016
A company of 4th Regiment U.S. Colored Troops, (USCT) Infantry/Wikimedia

William Spriggs Next month is Black History Month. We will hear stories about black Americans and their successes in this country against the barriers (slavery, Jim Crow, poll tax just to name a few) thrown in their paths. Yet for every success story, there is still the nagging fact that the median net wealth of white households is 12.2 times greater than that of black households.

Because of well-documented gaps in unemployment rates, earnings, poverty and wealth, black working people are sometimes falsely seen as “bystanders” to America’s economy.  Unbelievably, there is a tendency to observe the gaps in economic success and blame African Americans for being disengaged and not trying to respond to clear economic realities; a lack of investment in education, skills, training and personal saving. This is patently absurd.

African Americans are fully aware of the barriers they face to success, and have been steadfast to struggle to remove them.  Indeed, Dr. Martin Luther King Jr. was assassinated during a campaign by black sanitation workers in Memphis, Tenn., to exercise their right to organize, strike and demand fair wages; a key theme of American worker advancement during the first 80 years of the last century and one repeated this past Dr. King Holiday by airport workers demanding a living wage.

The difference in wealth does not grow smaller when comparing white and black households headed by college graduates, or when controlling for differences in income.  Because the easy answers like education and income differences don’t explain the wealth gap—which measures accumulated savings over multiple generations—the fall back is often to blame the savings’ behavior of blacks.  And, here, old stereotypes of African Americans being profligate can easily substitute for documentation. But taking a closer look at history tells us the real story.

Those early years after emancipation are key in addressing the deep history of African Americans as their own agents.  During the Civil War, African American leaders, most famously, Frederick Douglass, campaigned hard to have black soldiers officially sworn into the fight to end slavery.  With issuing the Emancipation Proclamation, Lincoln also finally signed on that in 1863 not only would slaves in the rebellious states be free, but African American men would join the United States Army and Navy in quelling the Southern revolt.  Close to 180,000 black men signed-up as official members of America’s Armed Forces to defend the Constitution of the United States against all enemies foreign and domestic.  They became the largest paid workforce of African American men to that point in America’s history.

The issue quickly arose as to where could they deposit their paychecks?  A few fledgling efforts were made to start banks.  And, that effort culminated with the establishment of the Freedmen’s Savings and Trust by Congressional act in March 1865; the Freedmen’s Bureau bank.  Recently the U.S. Department of Treasury and Secretary Jack Lew dedicated an annex to honor the Freedmen’s Bureau Bank.

By 1870, the bank operated 37 branches throughout the South, with African Americans trained as branch managers.  In all, almost 70,000 African Americans made deposits in the bank, reaching savings of about $57 million.  Those facts stand to clearly demonstrate the efforts of a people, subject to slavery, freed with nothing from their previous labors to start anew having built wealth for others for free.

But, fate would intervene.  The accumulation of those savings came during a period when the federal government still stood in the way of restoring the South’s old hegemony of white southern planters.  And, it came when the nation’s banks were still conservative following the uncertainties of the Civil War.  Southern banking laid prostrate, devastated by the collapse of the Confederacy and the meaningless holdings of Confederate dollars, and the long mystery of the disappearance of the gold reserves that backed that currency on its desperate journey south from Richmond, Virginia in April 1865 as Robert E. Lee surrendered the fighting cause at Appomattox Court House under the vigilant eyes of 2,000 black men in seven units of the United States Colored Troops.

By the start of the 1870’s, the expansion west made possible by the Homestead Act and transcontinental railroad—both enacted during the Civil War—restored the nation’s prosperity and financial zeal.  The result was over speculation in railroading.  In Europe, financial pressures mounted from the Franco-Prussian War.  Germany refused to continue issuing silver coins.  This resulted in plummeting silver prices, and the eventual move by the United States to go from backing its currency in silver and gold, to use only the gold standard.  This led to the collapse of investments in silver mines in the western United States.  The result was a global financial collapse that swept Europe and the United States in 1873.  With it came the collapse of the U.S. banking system.

Sound familiar?  And, that collapse decimated the Freedmen’s Savings and Trust as well.  At a time of general financial collapse and no Federal Deposit Insurance Corporation—a creation learned from the Great Depression—many depositors lost their savings.  The millions in savings of the newly free went away, too.  Not too different than the 240,000 homes that disappeared from the African American community after the financial collapse of 2007.

In 1876, a compromise to resolve the Presidential election resulted in the removal of federal protection of African Americans in the South.  The end of reconstruction meant the restoration of southern white hegemony and the evisceration of voting rights for African Americans, the protection of the access to many occupations and the limiting of their equal access to education.  This too sounds familiar.

To accurately measure history, it takes measuring all the hills and valleys right.  Dedicating a building to the Freedmen’s Savings and Trust allows us to properly assess the toil and efforts of African Americans.  It shows the hard work and industrious nature of a determined people.  It reminds us of the mountains of betrayal as well.

This blog originally appeared in aflcio.org on January 22, 2016.  Reprinted with permission.

William E. Spriggs is the Chief Economist for AFL-CIO. His is also a Professor at Howard University. Follow Spriggs on Twitter: @WSpriggs.

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