To explain the contrast between the trend in California and the United States as a whole—where union membership dropped last year by 400,000—Semuels turned to some credible sources, including Steve Smith of the state labor federation who cited “an appetite among these low-wage workers to try to get a collective voice to give themselves opportunity and a middle-class lifestyle.”
Quoting Smith and others, Semuels finds that, “After working hard to get here, many Latino immigrants demand respect in the workplace and are more willing to join unions in a tough economic environment, organizers say.”
True enough: Immigrant workers have been particularly important for unions in California and Latino organizing has helped reignite the state’s labor movement. But that’s only part of the story.
Many California unions, allied with progressive groups up and down the state, have dedicated enormous resources to community and economic organizing. This has influenced California’s political culture. Union-friendly city councils, boards, commissions, a democratic legislature and statewide office holders produce a relatively pro-worker political and economic atmosphere.
Though employer resistance to unions can be as fierce in California as in other states, there is also a growing sense that a cooperative relationship with labor can be good business (note the expedited permitting for the construction of downtown L.A.’s Farmers Field).
California unions were ahead of the curve in recognizing the power of Latino workers and voters and then led other states in building diverse constituencies around progressive economic development strategies. The number of “living wage” districts around the state testifies to that.
There is no pro-union state in the United States. But California (with 18.4 percent of the workforce unionized) may be pointed in that direction.
Despite its failure to offer context, the Los Angeles Times piece draws the same conclusion.
“Labor’s more optimistic proponents say that California could serve as a blueprint for unions across the country as they seek to stem membership declines,” writes Semuels. “The trend comes amid forecasts that the Latino population in the United States is likely to double in two decades.”
AFL-CIO President Richard Trumka said Solis “brought urgently needed change to the Department of Labor, putting the U.S. government firmly on the side of working families.”
Under Secretary Solis, the Labor Department became a place of safety and support for workers. Secretary Solis’s Department of Labor talks tough and acts tough on enforcement, workplace safety, wage and hour violations and so many other vital services. Secretary Solis never lost sight of her own working-class roots, and she always put the values of working families at the center of everything she did. We hope that her successor will continue to be a powerful voice both within the Obama administration and across the country for all of America’s workers.
This afternoon, I submitted my resignation to President Obama. Growing up in a large Mexican-American family in La Puente, California, I never imagined that I would have the opportunity to serve in a president’s Cabinet, let alone in the service of such an incredible leader.
Because President Obama took very bold action, millions of Americans are back to work. There is still much to do, but we are well on the road to recovery, and middle class Americans know the president is on their side.
Together we have achieved extraordinary things and I am so proud of our work on behalf of the nation’s working families.
This post was originally posted by AFL-CIO NOW on January 9, 2012. Reprinted with Permission.
About the Author: Donna Jablonski is the AFL-CIO’s deputy director of public affairs for publications, Web and broadcast. Prior to joining the AFL-CIO in 1997, she served as publications director at the nonprofit Children’s Defense Fund for 12 years. She began my career as a newspaper reporter in Southwest Florida, and since have written, edited and managed production of advocacy materials— including newsletters, books, brochures, booklets, fliers, calendars, websites, posters and direct response mail and e-mail—to support economic and social justice campaigns. In June 2001, she received a B.A. in Labor Studies from the National Labor College.
Some 450 office clerical workers—members of the International Longshore and Warehouse Union (ILWU) Local 63—are back on the job this morning in the ports of Los Angeles and Long Beach, Calif., after the ILWU and port employers reached a tentative agreement Tuesday night that will prevent the outsourcing of jobs.
ILWU International President Robert McEllrath said the unity and solidarity of the workers, members, their families and thousands of community supporters played a major role in the workers’ win. When the workers struck Nov. 27, ILWU dockworkers and other port workers refused to cross the picket lines.
“This victory was accomplished because of support from the entire ILWU family of 10,000 members in the harbor community.”
The key elements in the tentative agreement are new protections that will help prevent jobs from being outsourced to Texas, Taiwan and beyond. Union spokesman Craig Merrilees said:
“Really, it was getting control on the outsourcing…ensuring that the jobs are here today, tomorrow and for the future.”
The port workers had been without contract for more than two years and employers were threatening to outsource jobs from the nation’s busiest port complex—some 40 percent of all containerized cargo is handled in the Los Angeles and Long Beach ports.
Details of the agreement that still must be ratified have not been released, but news reports say it is a six-year deal that is retroactive to June 30, 2010.
The workers don’t have ordinary clerk and secretarial jobs. The Los Angeles Times describes them as “logistics experts who process a massive flow of information on the content of ships’ cargo containers and their destinations….They are responsible for booking cargo, filing customs documentation and monitoring and tracking cargo movements.”
This post was originally posted on AFL-CIO NOW on November 6, 2012. Reprinted with Permission.
About the Author: Mike Hall is a a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When his collar was “still blue,” he carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse.
For the third time in the past 14 years, California voters rejected an attempt—fueled by millions of out-of-state dollars—to shut working people out of the political process when they soundly defeated Proposition 32. California Labor Federation Executive Secretary-Treasurer Art Pulaski said working families:
Rejected a blatant power play by corporate special interests to silence the voice of working people. Despite weeks of misleading advertisements backing Prop. 32 paid for by billionaires and out-of-state super PACs, the margin of defeat was decisive. Prop. 32 backers spent more than $50 million in an effort to fool voters.
The San Jose Mercury News reports that $11 million of that war chest came from “a shadowy Arizona group that became entangled with the state’s Supreme Court over where it got its money.”
Ultimately, that money was traced back to two outside groups with ties to the billionaire oil tycoon brothers, David and Charles Koch, as well as to Karl Rove, the former top strategist to former President George W. Bush, whose web of super PACs and non-profit groups spread hundreds of millions of dollars in campaigns across the nation.
Prop. 32 would ban the use of voluntary payroll deductions by union members who want to contribute to their union’s political activity. It would do nothing to stop the campaign spending by secret corporate-backed PACs and the wealthy. Pulaski says:
Prop. 32 had the effect of driving millions of firefighters, electricians, nurses, teachers, plumbers and other working people to the polls today. This measure was nothing less than an attack on working people; an attack we took personally.
More than 40,000 union volunteers made more than 3 million voter contacts and distributed more than 5.1 million worksite leaflets.
As of this morning, Prop. 32 was losing by more than eight percentage points. Working families defeated similar measures in 2005 and 1998.
Working families also rallied to help pass Prop. 30 that will raise $6 billion to put the state’s education system back on track by ending cuts to schools and providing funds to rehire teachers, reduce class sizes and update textbooks. It’s paid for by asking the state’s wealthiest to pay their fair share. Learn more about Prop. 30.
This post was originally posted on AFL-CIO NOW on November 7, 2012. Reprinted with permission.
About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. I came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.
This year, it’s called Prop. 32 and it’s a near-clone of 2005’s Prop. 75 and 1998’s Prop. 226, which voters defeated by 53% to 47%. Both times, huge mobilizations by working families turned back the millions of dollars from Republican PACs and corporate and anti-worker extremists. These are the same groups that are behind Prop. 32.
Deceptively titled, “Stop Special Interest Money Now Act,” Prop. 32 would ban the use of voluntary payroll deductions by union members who want to contribute to their union’s political activity. It would do nothing to stop the campaign spending by secret corporate-backed PACs and the wealthy.
Prop. 32 exempts secretive super PACs and corporate front groups, which can raise unlimited amounts of money from corporate special interests and billionaire businessmen, to support their candidates or defeat their enemies. The measure does nothing to prevent anonymous donors from spending unlimited amounts to influence elections.
Prop. 32 is NOT campaign finance reform, as its backers claim. The wealthy supporters of this initiative created exemptions for Wall Street hedge funds, real estate investors, insurance companies and other well-heeled special interests, allowing them to continue contributing directly to the coffers of political candidates.
Prop. 32 would severely restrict union members in both the public and private sectorfrom having a voice in our political process. As a result, teachers, nurses, firefighters, police officers and other everyday heroes would be unable to speak out on issues that matter to us all—like cuts to our schools and colleges, police and fire response times, patient safety and workplace protections.
This measure would give corporate CEOs and their lobbyists even greater influence over our political system. Corporations already outspend unions 15-1 in politics. This measure would effectively clear the playing field of any opposition to big corporations’ agenda, which includes outsourcing jobs, gutting homeowner protections, slashing wages and health benefits and attacking retirement security.
This post originally appeared in AFL-CIO Now on October 17, 2012. Reprinted with permission.
About The Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.
As two critical bills waited quietly on California Governor Jerry Brown’s desk last weekend, immigrants across the state held their breath, hoping that the progressive legislation could affect the national immirgation debate. By Sunday night, the anticipation gave way to disillusionment with two stunning vetoes.
The highly anticipated Domestic Workers Bill of Rights would have enacted major protections for tens of thousands of housekeepers, nannies and other caregivers and closed loopholes ignored by federal labor law. It would have extended California’s policies for overtime pay and workers’ compensation, and helped ease in-house workers’ arduous, sometimes-abusive work routines by providing for a set amount of sleep and the ability to cook one’s own food.
Above all, the Bill of Rights would place California alongside New York (where similar legislation has already passed) in formally recognizing the rights and unique needs of this burgeoning, cross-cutting sector. The bill won support from a huge array of groups, from labor unions to celebrities, precisely because of the myriad social issues that domestic work braids together: the changing demographics of the workforce, the challenges of securing affordable childcare or elder care for families, and the struggles of immigrant workers, particularly women of color, in a largely unregulated industry.
But Brown scrapped the bill (sadly following an earlier veto by former Gov. Arnold Schwarzenegger) andaligned himself with the business lobby, led by the California Chamber of Commerce, which had complained that the provisions of the bill would be unworkable and overly burdensome for employers.
The California Domestic Workers Coalition will continue its campaign (with plans to deploy sponge bombs to help Brown “clean up his act”) by building on its growing network of allies, including women’s rights, labor and faith groups. Looking ahead, Katie Joaquin, a Filipino community activist with the California Domestic Workers Coalition, tells Working In These Times, “We’re going to continue to build upon those relationships. And the first step is to hold Governor Brown accountable for what we view as a blatant lack of leadership.”
Inspired by the New York example, Joaquin says, the California bill is part of a movement for what the National Domestic Workers Alliance calls “an alternative vision of care,” which is based on sustainable working conditions and better training in the care industries, in order to meet the growing need for caregivers as the population ages. “We need to have a vision for training and caring for caregivers at the same time that we’re making care accessible for families,” Joaquin says.
Immigration policy complicates the labor struggle. Brown delivered a one-two punch to California’s migrant communities by also vetoing the Trust Act, which would have restrained the power of local police to route arrestees suspected of immigration violations into the custody of Immigrations and Customs Enforcement (ICE). That means that the mass deportation of undocumented immigrants, including domestic caregivers and other low-wage workers, will continue.
Immigrant rights activists had pushed the Trust Act to counter the Obama administration’s enforcement regime, particularly the Secure Communities program, which encourages federal and local police to collaborate to nab undocumented immigrants. The program mirrors Arizona’s infamous SB1070 law and other state initiatives that threaten to expand racial profiling of Latinos and feed the federal deportation machine (which hasn’t significantly eased up in spite of the administration’s slippery claims of refraining from deportating “low priority” cases, such as students with clean records).
Still, aside from the painful vetoes, Brown managed to approve more modest pro-immigrant measures, such as allowing driver’s licenses for some undocumented immigrants (a move apparently aimed at the youth who would qualify for temporary immigration relief and work permits under the White House’s new “deferred action” policy).
The problem is that making it easier for undocumented workers to drive isn’t going to prevent them from being pulled over and ensnared in deportation proceedings. A young man named Juan Santiago told the Associated Press:
he was pleased he would be able to get from his home in Madera to his college classes 30 miles away once his work permit application is approved. But he said the measure does little for his mother, who brought him across the Arizona desert into the U.S. when he was 11.
“It was a happy and a sad day for us,” Santiago said. “The fact that the governor vetoed the TRUST Act, it means there’s nothing to protect the rest of my family members.”
The legislative changes that immigrants most need now are those that protect the whole neighborhood–at work, in school and at home. In an email to Working In These Times, Chris Newman, legal director of California-based National Day Laborer Organizing Network (NDLON), one of the leading advocates for the Trust Act, says:
Equality demands that all Californians have faith in law enforcement, and the vetoes send a message that whether it’s civil rights, labor rights, or public safety, Jerry Brown does not respect the interests of immigrant workers in California.
Building political savvy and leverage on the street level is critical, with or without supportive legislation. As NDLON activist Pablo Alvarado wrote on the group’s blog, the governor “can veto a bill but he cannot veto a movement.” Ultimately, it’s the community’s power, not the letter of the law, that defines justice.
About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.
LOS ANGELES—At a conference convened by the organization Reporting on Health at the University of Southern California this week, doctors and health care experts shed light on labor-related aspects of the health care field as the sweeping health care reform legislation is set to take effect after being upheld by the U.S. Supreme Court.
They provided a window into the workplace stresses and challenges doctors themselves have faced in our tumultuous and trouble-plagued health care system, and also the health care needs and challenges of low-income workers.
Marcia Sablan, a doctor in the tiny northern California town of Firebaugh, embodies both of these narratives. Marcia is one of many doctors who depended on a federal program that helps people afford medical school in exchange for working in under-served rural districts. After her residency at the University of Hawaii, she was assigned to Firebaugh, in the agricultural valley of Fresno County, with a population then of just over 3,000. She was accompanied by her husband, also a doctor and the first native of Saipan to graduate from a U.S. medical school.
Panelists at the conference noted that such programs will be increasingly important if the government wants to encourage more doctors to go into general primary care rather than becoming specialists. Specialists make an estimated $3.5 million more over their lifetimes, yet there will be an estimated shortage of 30,000 primary care doctors in coming years especially as more people become insured under the new health care law.
Sablan arrived in Firebaugh in 1981 and eventually founded her own private practice there, where she primarily serves low-income Latino farmworkers, about half of them immigrants, including many uninsured people who may or may not end up insured under the health care bill reforms. Doctors and experts at the USC conference echoed the widespread concern that due to the way the health care reform bill and Supreme Court decision played out, people living under the poverty line may not get insurance under the new law. That’s because the insurance exchanges and subsidies the law mandates are designated for people who make more than the poverty line, while people making below the poverty line (including childless adults —a change from the past) are all supposed to be covered by Medicaid.
States are ordered to expand their Medicaid programs to cover people making up to 133 percent of the poverty line, but the mandate doesn’t have strong teeth since it is unclear if or how the federal government can punish states that don’t expand their Medicaid programs to cover the newly eligible people. Many states say they cannot afford their share of the expansion plus the extra costs expected when currently eligible but un-enrolled people “come out of the woodwork” thanks to the publicity around the reform law.
Sablan notes that she never asks her patients about immigration status—she is not required to under California’s Medicaid law—and she typically charges a $50 fee which most patients pay out of pocket.
“Undocumented workers know not to leave a trail, not to leave bills,” she said.
But when her patients need specialty care, the seasonal nature of farm work can cause serious problems. Many of them do have insurance during the months they are employed, but not during the off-months, she said. In her early years in Firebaugh, many of the locals were migrant workers living in labor camps who returned to Mexico or otherwise left Firebaugh for half the year. But the labor camps have been demolished and now many farmworkers have bought homes and live year-round in the town with their families, even as they continue to depend on seasonal agricultural wages. Hence an illness or injury that keeps them away from work for days or weeks during the crucial seasonal employment period is especially devastating financially.
“What does an agricultural-based seasonal economy mean to a doctor practicing there?” Sablan asked, noting that Firebaugh’s population now numbers 6,741: 88 percent Latino, 22 percent living below the poverty line, more than a third unemployed and almost two-thirds without a high school diploma. “It means people have insurance and Medi-Cal (California’s version of Medicaid) at certain seasons of the year. But we know diseases don’t work like that. So this is a huge problem for us—seasonal workers have a very difficult time keeping up with chronic diseases.”
From a health perspective, Sablan is glad to see the valley’s once-thriving cotton industry decline, she said, since it involves heavy pesticide use that raised serious health problems for workers and other residents. Once she treated victims of what was known as the worst pesticide-poisoning case in state history—28 workers critically poisoned after being ordered to return to a field too soon after it had been sprayed with phosphates. Now almonds and pistachios are the main crops in the area, grown mostly by huge industrial farms. (Meanwhile a sustainable cotton projecthas been in the works.)
Sablan hopes the health care reform law will indeed result in better preventative care for low-income and currently uninsured people. She cites the case of one patient, a 54-year-old farmworker who had a heart attack and was prescribed medication which, at $400 a week, he could never afford. Also suffering from diabetes and lacking medication, he eventually had another heart attack and ending up needing permanent dialysis by age 60.
“When you think about the Obama plan, think about [the farmworker] – do we want to be upstream or downstream?” in health care spending, she asked. “Someone paid for him to be in the hospital two times and on dialysis, which costs about a million dollars a year. He’s totally disabled now, unable to work, from what should have been a preventable situation.”
Despite such challenges, Sablan and her husband feel lucky to work in an environment where they have treated three generations of patients —it gives them a sense of personal connection and continuity that other doctors say they lack when forced to see up to 30 patients a day, in the common “fee for service” health care model.
Dr. Ken Kim described the challenges of working in a typical profit-driven, urban system. He and other internists were disgusted to see how badly many of their patients were faring under the standard health care model. He described multiple diabetic patients with legs amputated because they were shuffled between specialists, waiting for months for appointments, while a “pin-sized” wound became infected and festered. And he described elderly patients unable to comply with a doctor’s orders because they lacked a ride to the clinic or couldn’t open medicine bottles with arthritic hands or ate high-sodium meals as shut-ins. Doctors and nurses want to help such patients with personalized care, he indicated, but the fee-for-service model and other aspects of the traditional insurance system create so much time pressure that patients fall through the cracks.
So Kim and other doctors formed an “accountable care organization” (ACO) wherein insurance companies like Blue Cross pay the organization a flat fee to provide care for a certain group of the insurance companies’ enrollees. Kim said that after floundering at first, the company, CareMore, where he now serves as chief medical officer, was able to provide holistic, preventative care to a patient base of mostly ailing senior citizens by subverting the fee for service model, focusing on prevention and making sure the various nurses and doctors working with a given patient communicate and develop a cohesive plan. He said that under their organization rates of hospital readmissions, amputations, mortality and other indicators have decreased drastically. Many hope this type of accountable care organization will become more common under the health reform law.
While the general public is obviously confused about the implications of the health care reform bill, doctors and health care experts are also uncertain about how the law will play out and what it will mean for their own work lives and those of their patients.
About the author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist writing for publications including The Washington Post, the Chicago Reader and The Progressive. Her most recent book is Revolt on Goose Island.
I was recently with the Nurse Alliance of California for its annual Legislative Conference. It is always an honor for me to share information with nurses about online tools we can and should employ as activists. Although I think my breakouts at the conference went over well, one of the themes of the conference — which many of you know I’ve been somewhat absorbed with — is workplace violence and workplace violence prevention. My goal here is to tie in information about this important subject matter and couple it with the online tools in our educated union member tool box.
With the advent of workplace violence among the top issues we face every day, would you agree that it is incumbent on us to start up and/or maintain the drumbeat about this discussion? When one of our sisters or brothers gets brutally beaten or killed on the job, our reaction is immediate and strong, but how can we get to talking up a storm on this every day of the week? In part, this is about getting us mobilized around a few entry points to the discussion; in part it is to help us focus on some online venues we can take advantage of to get the conversation off the ground. Are you in this with me?
What I Know…
If you have been a nurse for a couple of weeks or a nurse for the last 30 years, violence on the job is never very far from you. Unfortunately, there are not a lot of legal protections in place. The Occupational Safety and Health Administration (OSHA) recognizes workplace violence as a hazard, but has no federal regulations in place requiring employers to deal with the problem. While some states, like New York, have some laws in place (thanks to the Public Employees Federation (PEF) and other unions) if there is no accountability, the laws are just bundles of paper in a drawer somewhere.
Various papers, studies, scholars, union leaders, and other folks reiterate this point: Workplace violence is an epidemic that many outside our facilities or day-to-day life have no clue even happens, much less how often it happens. More healthcare professionals are either assaulted or killed on the job than any other profession or trade.
For many of us, it is tremendously difficult to talk about something if we don’t have a concrete definition of what “it” is. What does that mean? We can all talk about what we think and feel after a co-worker is beaten on the job. We can all attend rallies, services, light candles, shake our heads … but what is “it”? What is the definition of workplace violence?
Jonathan Rosen, MS CIH, Director of the Occupational Safety & Health Department for the New York State Public Employees Federation (PEF), facilitated an amazing breakout session on workplace violence at the California legislative conference. One slide in his presentation defined workplace violence very succinctly: ”Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the work setting.”
Maybe as you read that, you thought about the countless times you felt threatened, were threatened, or were verbally abused at work. It’s likely that more than half of you have had first-hand experience with violence on the job.
This is probably not breaking news, but there are papers and studies out there that reveal that healthcare providers often do not report violence that occurs on the job. Another of Jonathan’s slides cited a National Crime Victimization Survey: “58% of harassed employees do not report incidents. Fewer than than half of workers report assault to the police. Only 25% of rapes at work are reported.”
Having the Discussion and Reporting the Problem(s)
Government statistics underestimate the true extent of violence at the workplace because:
* Data is collected on “battery” or incidents resulting in physical injury or death. Threats, verbal threats, and harassment are not reported to government agencies.
* In some jobs, assaults are so common that they are dismissed as “part of the job.”
* Other possible sources of information about violence — like hospital records or police reports — often fail to provide information about whether the injury was or was not work-related.
* Employers discourage employees from filing workers’ compensation claims for assault. In addition, many injuries do not meet the criteria for receiving workers’ compensation.
The reasons why our workplaces at times explode into violence add up to a growing list. According to the Safe Work, Safe Care Project, patients can become violent as a result of mental disorders, substance abuse, a past history of violence, head injuries, and confusion. The Project’s list includes about twenty issues — these are just the top five.
But why are we hesitant to report instances of violence on the job? Many of us may have heard about the OSHA General Duty Clause — but, what is it? It’s important!
OSHA’s General Duty Clause and EVERY Employer’s RESPONSIBILITY!
Every employer in the United States is responsible for creating and maintaining a safe and healthy workplace for its employees. The good news for us is this: THERE ARE NO EXCEPTIONS. That, sisters and brothers, that is the law. It is your right as a worker.
Section 5(a)(1) of the Occupational Safety and Health Act requires that an employer: “shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
This is what we refer to as the OSHA General Duty Clause.
In September 2011, OSHA issued procedures for its field staff to use when responding to incidents and complaints of workplace violence. We believe that this directive will help inspectors use the General Duty Clause when they can.
Start the Conversation with Thousands and Thousands of Nurses
Here are our talking points:
1) Workplace violence defined: “Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the work setting.”
2) The Department of Justice says that fewer than half of all non-fatal violent workplace crimes are reported to the police.
3) Some known causes for under-reporting workplace assaults include:
“Part of the job” syndrome
Fear of blame or reprisal
Lack of management/peer support
Feeling it’s not worth the effort
4) OSHA and the OSHA General Duty Clause:
There are no OSHA standards regarding workplace violence (ain’t that something?) — however…as mentioned, in September 2011 OSHA issued directives for field staff when investigating incidents of workplace violence.
And …you have the right to a place of employment that is free from recognized occupational hazards which cause or are likely to cause serious harm, illness, or death.
5) Violence is recognized occupational hazard!
This blog originally appeared in Union Review on May 14, 2012. Reprinted with permission.
About the author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.
One common strategy used by companies to cut labor costs is to classify as much of its work force as “independent contractors” as possible. A company does not have to pay payroll taxes for independent contractors nor does it have to worry about pesky labor code requirements pertaining to minimum wages, overtime, meal and rest breaks, or expense reimbursement requirements. Additionally, a company does not have to cover independent contractors under workers’ compensation insurance, and is not liable for payments under unemployment insurance, disability insurance, or social security.
Given these cost savings, it should, perhaps, not be surprising that there has been a trend in companies classifying more of their workforce as independent contractors. A 2007 study by the General Accounting Office estimated that the number of workers classified as independent contractors rose by almosttwo million between 1995 and 2005 alone.
However, just calling someone an independent contractor does make it so and many companies do so without considering the legal distinctions between employees and independent contractors. Indeed, there is a presumption that workers are employees (Labor Code Section 3357) and a company that wishes to rebut this presumption will be required to undergo a multi-factor test which includes questions regarding whether the company has control, or the right to control, how the work is done and the manner and means by it is performed. See, S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. If they are unable to do so, then the worker will be classified as an employee and the company will potentially be on the hook for four years of overtime wages, meal and rest premiums, etc.
The New Law
S.B. 459 was chaptered by California’s Secretary of State as Chapter 706, Statutes of 2011. It will appear as Sections 226.8 and 2753 of the California Labor Code. The new law:
Prohibits the “willful misclassification” which is defined as “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”
Prohibits charging a misclassified individual “a fee or making any deductions from their compensation for any purpose, including for goods, materials, space rental, services, government licenses, repairs, equipment maintenance, or fines arising from the individual’s employment where any of the acts… would have violated the law if the individual had not been misclassified.”
Subjects violators to dramatic civil penalties of at least $5,000 and as much $15,000 per violation, in addition to any other penalties or fines permitted by law. Violators who are determined to have engaged in a pattern of violations are subject to a civil penalty of at least $10,000 and as much as $25,000 per violation.
Gives the Labor and Workforce Development Agency authority to assess penalties and includes special requirements for licensed contractors subject to the Contractors’ State License Board.
Subjects non-lawyers who advise an employer to misclassify a worker to joint and several liability with the employer.
Although independent contractor misclassification cases are nothing new, the new law will lead to an increase in such lawsuits. Perhaps the most significant change is the addition of the new penalties. To wit, a company engaged in 100 violations could be liable for $2,500,000 in penalties under the new statute, in addition to the existing remedies (such as attorney’s fees and costs under Labor Code Section 218.5, penalties under Labor Code Section 203 and 226, interest).
The bottom line– Companies should think twice before misclassifying their work force to avoid paying employees premium wages and avoid payroll taxes!
About the authors:Brad Yamauchi is a partner and Kevin Allen is a litigation associate at Minami Tamaki LLP in San Francisco, California. The firm has litigated individual and class action wage and hour, civil rights and financial and consumer fraud cases for 35+ years. It is currently handling class action misclassification claims in the hi-tech, restaurant, retail, communications and trucking industries on behalf of thousands of employees.
After months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion. Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.” Everyone at work thought the situation was hilarious: a widower turning down the explicit sexual advances of an attractive woman. But Rudolpho Lamas and his lawyers are not laughing.
When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked. And, does Title VII impose different standards on men and women in sexual harassment cases? Finally, do gender stereotypes have a place in the jurisprudence of Title VII?
Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII. (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.
Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.
It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act. Under Title VII, sexual harassment is considered to be a form of sex discrimination.
A Title VII sex harassment claim can be based on two theories of liability: (1) economic quid pro quo; or (2) hostile environment.
In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.” Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”
In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted. “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.” Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against: discrimination based on sex.
This month’s Ninth Circuit case was based on the second of these two Title VII liability theories. To maintain a gender-based, hostile environment case, a worker must show that:
(1) he or she was subjected to verbal or physical conduct of a sexual nature
Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him. She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”
The Court had no trouble finding that the conduct was sexual. “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on. Her proposition was for sex, not a cup of coffee together.”
Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.
Element 2: Welcomeness
The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser. What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome? The short answer is, the same evidence a woman needs to present.
Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker. Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations. So, what did the Ninth Circuit think about this digression into cultural stereotypes? Not much.
The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything. “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”
“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.” Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary. Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments. Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”
While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well. To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations. “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”
Element 3: Severe or Pervasive
Title VII is not a “general civility code” either. It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher v. Boca Raton, 524 US 775 (1998).
Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination. In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.
Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII. A sexual assault immediately creates an abusive working environment.
Less egregious conduct can provide grounds for a Title VII claim, as well, if: (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.
Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however. But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker? What if this conduct was part of an attitude that permeated the workplace with gender bias? If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.
Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit. But taken together, they often do. So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa. The courts treat it as a classic inverse relationship.
Putting It All Together
By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings. The female employee’s conduct obviously was sexual. And Lamas made it clear that he wanted the conduct to stop. The conduct was pervasive and had a serious negative impact on conditions at work. Lamas’s job performance suffered. When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality. Lamas complained several times to his supervisors about the harassment, but nothing was done.
If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.
Guidelines for Flirting at Work?
In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment
People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.
Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII. “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”
Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law? Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.
Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country? Not really. But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.
About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.