Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘civil rights’

She gave the President the finger. Employer gave her the boot.

Thursday, April 19th, 2018

Juli Briskman was on her own time, riding her bicycle, when President Trump’s motorcade drove by. She expressed her personal feelings with a middle finger salute, not realizing that a news reporter had captured her gesture on camera.

She abruptly lost her job after the photo went viral on social media. Her employer, a government contracting firm, feared the Trump administration would retaliate by withholding or not renewing contracts. She has sued for wrongful termination.

Did her employer’s action violate her rights?

Briskman was forced to resign in November 2017. She has now filed a lawsuit against her employer, citing violation of her civil rights. There are limits on free speech in the workplace. But she wasn’t in the workplace. When she “flipped the bird” at the president and his motorcade, she was doing so as a private citizen.

Giving someone the finger, however uncouth it may seem, is protected speech under the First Amendment. Employers do have some leeway to discipline or fire workers if they badmouth the company or if their personal conduct violates a corporate policy.

Briskman is claiming that she was fired as a sacrificial lamb. Her employer, Akima, has government contracts. The company has not claimed that her speech violated policy or offended her co-workers. Rather, she contends the company terminated her to avoid the wrath of the White House. The stated reason for her forced resignation was that the company could lose out on lucrative contracts if she were retained. In other words, the company retaliated against her before the president could retaliate against the company.

Can an employer pre-emptively terminate a worker for what might happen?

Ms. Briskman would likely still have her job if she had given the finger to anyone other than the president of the United States. And perhaps if it had been any other president. Maybe management was pressured by the White House through back channels. Maybe they just weren’t taking any chances.

The question for the court, or a jury, will be whether Akima was within its rights to take adverse employment action against an employee for (a) private speech that could (b) potentially but not necessarily affect its future contracts.

“Working for a company that does business with the federal government should never limit your ability to criticize that government in your private time,” Briskman has stated.

This unsettled legal issue will likely come up again

In the age of social media, clashes between free speech and employment are increasingly common. What you post on Facebook or Instagram on your free time may be visible to your bosses. Anyone with a cellphone can capture your strong words or rude gestures and make you suddenly (in)famous on the internet.

It will be interesting to see where this lawsuit goes. Do you think political speech or personal opinions while you are off duty should be protected? Or should employers be able to fire workers for free speech that results in backlash against the company?

This blog was originally published at the Passman & Kaplan blog on April 18, 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.

King and Meany Brought Civil Rights and Labor Together for a Legacy That Continues Today

Monday, January 15th, 2018

Beginning in 1960, Dr. Martin Luther King Jr. and then-President George Meany of the AFL-CIO began a relationship that would help bring the labor and civil rights movements together with a combined focus on social and economic justice.

Meany was an outspoken defender of individual freedom, and in March 1960, he emphasized the crucial link between the union and the civil rights movements. He told an AFL-CIO gathering, “What we want for ourselves, we want for all humanity.” Meany met with King to privately discuss how they could work together. King proposed that the AFL-CIO invest pension assets in housing, to help lessen economic inequality. The AFL-CIO then established the Investment Department in August 1960 to guide union pension funds to be socially responsible investors.

The next year, King spoke to the AFL-CIO Executive Council, comparing what labor had achieved to what the civil rights movement wanted to accomplish: “We are confronted by powerful forces telling us to rely on the good will and understanding of those who profit by exploiting us. They resent our will to organize. They are shocked that active organizations, sit-ins, civil disobedience, and protests are becoming every day tools just as strikes, demonstrations, and union organizations became yours to insure that bargaining power genuinely existed on both sides of the table.” At the AFL-CIO Constitutional Convention later that year, Meany made civil rights a prominent item on the agenda, and King spoke to the delegates about uniting the two movements through a common agenda, noting that African Americans are “almost entirely a working people.”

Not only did the AFL-CIO provide much-needed capital to the civil rights movement, but numerous affiliates did as well. Several combined to give more than $100,000 to King’s Southern Christian Leadership Conference. The UAW directly funded voter registration drives in predominantly African American areas throughout the South and paid bail money for jailed protesters. Meany and the AFL-CIO also used their considerable political influence in helping to shape the Civil Rights Act of 1964 and Voting Rights Act of 1965.

Union activists were a key part of the March on Washington for Jobs and Freedom as well. The Industrial Union Department of the AFL-CIO endorsed the march, as did 11 international unions and several state and local labor councils. A. Philip Randolph, then-president of the Brotherhood of Sleeping Car Porters, was a key organizer of the event. UAW President Walter Reuther was a speaker at the march, condemning the fact that African Americans were treated as second-class economic citizens.

King’s final act in pursuit of social and economic justice was in support of the sanitation strike in Memphis, Tennessee. After his death, then-President Lyndon B. Johnson sent the undersecretary of labor to settle the strike, and the city acceded to the demands of the working people, leading to the creation of AFSCME Local 1733, which still represents sanitation workers in Memphis.

In 1964, Meany sent a letter to all AFL-CIO affiliates outlining an new pathway that would directly support housing construction and homeownership. In 1965, the Investment Department helped establish the Mortgage Investment Trust, which was the formal embodiment of the socially responsible investment plan and gave a boost to badly needed affordable housing construction. In 1984, the Mortgage Investment Trust was replaced by the AFL-CIO Housing Investment Trust, one of the first socially responsible investment funds in the United States. Since it was created, the HIT has grown to more than $4.5 billion in net assets and has helped finance more than 100,000 affordable housing units and helped create tens of thousands of union jobs.

The partnership between civil rights and labor launched by King and Meany has helped the country make great strides in the intervening years, and the partnership continues.

This blog was originally published at AFL-CIO on January 12, 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.

The Trump Administration’s Backdoor Plan to Erode the Rights of Workers to Act Collectively

Monday, October 2nd, 2017

On October 2, the U.S. Supreme Court will hear a case that implicates the very concept of collective action. NLRB v. Murphy Oil asks whether it is a violation of workers’ rights to force them to enter into arbitration agreements that prohibit collective or class litigation. Such agreements, often entered into as conditions of employment, require workers who want to sue their employers to do so individually in a private arbitration setting, rather than as a class of aggrieved workers who can pool their resources and knowledge. According to a recent study by the Economic Policy Institute, more than 60 million U.S. workers have now lost access to the courts because of such forced arbitration agreements.

Now, the Trump administration is entering the fray, submitting a brief to the Supreme Court in the Murphy Oil case aimed at advancing an anti-worker legal theory poised to erode protections for workers outside of the union context.

Such efforts could have far-reaching implications. In a 1997 paper for Arizona Law review, professor of law emeritus Jack Greenberg argued, “Civil rights and class actions have an historic partnership,” with class actions routinely used “to challenge discrimination in employment, education, the use of public facilities and housing, to assert prisoners’ rights, and to promote welfare reform, to name just a few areas that conventionally are put in the civil rights category.”

More recently, the NAACP went further, arguing in an amicus brief submitted in August 2016 to the Supreme Court that “American democracy depends upon our unwavering commitment to equal opportunity. Federal labor law honors that commitment by guaranteeing employees the right to challenge workplace discrimination through concerted activity, including picketing, striking and group adjudication of workplace rights.”

Yet, in recent years, the rights of most Americans to engage in concerted legal has greatly diminished. In a 2015 investigative series on this trend, The New York Times reported that, starting in 1999, a “Wall Street-led coalition of credit card companies and retailers”—with soon-to-be Chief Justice of the Supreme Court John Roberts Jr. involved—engineered a plan to get rid of class action lawsuits, because such lawsuits allow individuals to pool their power against companies.

Years later, in a pair of cases decided in 2011 and 2013, with John Roberts Jr. as Chief Justice, the Supreme Court narrowly held that companies could include contract provisions that require plaintiffs to go through arbitration instead of court, while waiving their rights to class actions.

A federal judge interviewed in 2015 by the Times explained that the result is that now, “business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

The Times study of thousands of arbitrations—most of which are not publicly available—found that more and more consumer and labor and employment cases are being funneled into arbitration. Between 2010 and 2014, there was a 215 percent rise in arbitrations in labor cases over the previous four years. This represents a privatization of the justice system.

Furthermore, in many instances, the funneling of cases to individual arbitrations rather than class actions pressures workers into foregoing the process altogether. Looking at 2010 to 2014, the Times found that Verizon and Time Warner Cable, which have 140 million subscribers combined, faced only 72 arbitrations. After all, who would go up against an outmatched opponent alone?

It is understandable that workers would bow out, given that such arbitration settings are favorable to the employer. Unlike judges who are assigned cases randomly, arbitrators are chosen by the parties, meaning they are chosen regularly to arbitrate before the same corporations. If arbitrators against the corporations too often, there is a strong likelihood that the arbitrators will not be chosen again and therefore lose business in the future. This creates a financial incentive for arbitrators to side with corporations. The Times series notes that dozens of arbitrators “described how they felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business.”

Various attempts have been made to protect individuals from these arbitration provisions, including state laws holding these provisions to be unconscionable, as well as legal arguments claiming that such provisions violate federal anti-trust rules. But these arguments have failed at the Supreme Court. What has remained is the National Labor Relation Board’s (NLRB) position that Section 7 of the National Labor Relations Act (NLRA) protects workers’ substantive rights to join together in class actions. Section 7 provides that workers have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB has taken the position that employment class actions constitute “other concerted activities,” which are protected under labor law. And workers cannot sign away these rights, in the same way that they cannot sign away the right to form or join a union. The Seventh and Ninth Circuit Courts of Appeals agreed with the Board that the employer violated workers’ rights by making them sign arbitration agreements with class action waivers, but the Fifth Circuit held otherwise.

This split in the circuits made the issue ripe for Supreme Court review, and the matter was indeed appealed to the Supreme Court in September 2016, and accepted for review by the Supreme Court in January 2017. At the time, President Obama’s Solicitor General filed a brief with the Supreme Court supporting the NLRB’s position. But Trump’s Solicitor General later changed this position in order to side with employers.

In this case, the Trump administration expresses a view of labor law in the Solicitor’s brief that completely reorients workers’ rights. The brief acknowledges that Section 7 of the NLRA contains what it terms “core” rights, which relate to unionizing and collective bargaining, but pushes aside all other concerted activities as only contained in “residual language” and therefore not deserving of the same level of protections. Such a reading of labor law effectively states that the law’s protections only apply to workers’ activities as they relate to unions.

However, the NLRB clearly states that “the law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the [NLRB] will fight to restore what was unlawfully taken away.” These rights are far broader than the Trump administration acknowledges in its brief before the Supreme Court, and any limitation of them would greatly diminish the few rights workers have in the workplace.

This week, management-side Republicans gained a majority on the NLRB, and soon a management-side Republican will become the agency’s General Counsel. This new conservative Board is likely to shift labor law away from worker protections, as was the case during the George W. Bush years. However, Trump’s Solicitor’s argument goes much further. It invites the Supreme Court to formally bifurcate and limit workers’ rights to act collectively.

This piece was originally published at In These Times on September 28, 2017. Reprinted with permission. 

 About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

If Trump Has His Way, You’ll Certainly Miss This Agency You Probably Don’t Even Know Exists

Wednesday, June 28th, 2017

The Trump Administration has released its proposed budget for the 2018 fiscal year. Who’s set to lose big if this budget comes to fruition? Women—specifically working women and their families.

The only federal agency devoted to women’s economic security—the Department of Labor’s Women’s Bureau—is on the chopping block. The agency, which currently has a budget of only $11 million (just one percent of the DoL’s total budget), would see a 76 percent cut in its funds for the next fiscal year under the proposed budget.

Despite making up only 1 percent of the Department’s current budget and having only a 50-person staff, the Bureau serves in several crucial roles—simultaneously conducting research, crafting policy and convening relevant stakeholders (from unions to small businesses) in meaningful discussions about how to best support working women. The Women’s Bureau’s priorities have changed with the times—focusing on working conditions for women in the 1920s and 30s, and helping to pass the monumental Equal Pay Act in the early 1960s. (President Kennedy signed the Equal Pay Act in 1963, making pay discrimination on the basis of sex illegal. However, because of loopholes in the 54-year-old law, the wage gap persists.) Throughout its nearly 100-year history, however, the agency has remained a powerful advocate for working women and families. Recent efforts have included advocating for paid family leave, trying to make well-paying trades jobs available to women and supporting women veterans as they re-enter civilian life.

Eliminating or underfunding the Women’s Bureau would be a huge setback for working women across the nation. Take the issue of paid family leave, for example. In recent years, the Bureau awarded over $3 million in Paid Leave Analysis grants to cities and states interested in creating and growing their own paid leave programs while federal action stalls. With the funding provided by the Women’s Bureau, states and localities have developed comprehensive understandings of what their own paid leave programs might look like. In Vermont, where the Commission on the Status of Women received a Paid Leave Analysis grant in 2015, state lawmakers are now on track to pass a strong paid family leave policy.

So why is the Trump Administration considering cutting such a low-cost, high-impact agency? Some suspect it’s at the suggestion of the conservative Heritage Foundation’s 2017 budget proposal, which calls the Women’s Bureau “redundant” because “today, women make up half of the workforce.”

What this justification conveniently leaves out is that despite important gains in recent decades, too many women, particularly women of color, are still stuck in low-paying, undervalued jobs, being paid less than their male counterparts and taking on a disproportionate amount of unpaid labor at home. It also leaves out the fact that those previously-mentioned important gains are largely the result of targeted efforts led by government agencies like the Women’s Bureau. Eliminating the agencies responsible for immense strides in preserving civil rights is, to quote the brilliant Ruth Bader Ginsburg, “like throwing away your umbrella in a rainstorm because you are not getting wet.” Instead of punishing an agency for its accomplishments, the Trump Administration should give the Women’s Bureau the resources it needs to tackle the problems remaining for working women.

Donald Trump is happy to engage in shiny photo-ops and feel-good listening sessions about women’s empowerment, but when it comes to doing concrete work to support the one government agency tasked with supporting women’s economic empowerment, this administration is nowhere to be found. If this government actually cares about women at all—that is, cares about more than good press and tidy, Instagrammable quotes—it should step up to defend this agency and its 97-year history. The working women of America deserve better.

This blog was originally published by the Make it Work Campaign on June 21, 2017. Reprinted with permission.

About the Author: Maitreyi Anantharaman is a policy and research intern for the Make it Work Campaign, a communications intern for Workplace Fairness and an undergraduate public policy student at the University of Michigan.

Black Equality Doesn't End in February

Tuesday, March 3rd, 2015

carmen_aflcioBlack History Month is more than just acknowledgement in a newspaper or a special program at your children’s school. It’s an opportunity to reflect on how far black people in the United States have come in their struggle for justice and equal rights, while not forgetting the scores of women and men whose lives have been destroyed by our biased judicial system. The mass criminalization of millions of men and women, mostly people of color who are imprisoned for small infractions, creates a group of second-class citizens who are unable to rebuild a life for themselves even after serving their time.

In 2013, the labor movement passed a resolution recognizing that mass incarceration has become a big business whose product is low wages and ruined lives, and we decided that it’s time for labor to join forces with our allies in the criminal justice community and fight back. Together we are working toward achieving a reformed criminal justice system that offers formerly imprisoned people an economic path forward and restores voting rights—and we are already winning battles. Last year, California passed Prop. 47, a ballot measure that reduced the classification of some low-level nonviolent crimes from felonies to misdemeanors. The crimes covered by the proposal include things like minor drug possession and petty theft, minor offenses that should not define or destroy an individual’s life.

Mass incarceration is not only a civil rights issue, it’s an economics issue. AFL-CIO President Richard Trumka traveled to Los Angeles before Prop. 47 passed to shed some light on the situation. He noted that one-third of African American men will serve time in federal prison during their lifetime. That’s an incarceration rate five times greater than that for white men, even though studies have shown that white men and black men commit crimes at roughly the same rates. Once those men and women get out of prison, they have a harder time finding employment and housing due to their arrest records.

The labor movement is a movement of second chances and firmly believes our criminal justice system needs to offer people another chance to contribute to our society. The AFL-CIO staunchly opposes harmful policies like mandatory sentences for nonviolent crimes and we support programs that help people reintegrate into their communities, such as job training, education, probation and parole. If we are going to raise wages for all workers, we have to ensure that everyone has a fair shot at earning a wage.

Black History Month might be coming to an end, but the struggle to ensure that African Americans have a fair shot lasts until there is equity in our criminal justice system. Let’s focus on ensuring that every member of our communities has a shot at charting his or her own path forward. It’s time for us to wake up, come together and strive to create a criminal justice system that works.

This article originally appeared at The Huffington Post, and reposted at AFL-CIO.org March 3, 2015.

About the author: Carmen Berkley is the Civil, Human and Women’s Rights Director at the AFL-CIO. She also serves as a Principal Consultant at Can’t Stop Won’t Stop, LLC , Lead Trainer for Campus Camp Wellstone, and is a proud member of the Black Youth Project 100.

At MLK March, Renewed Call For Obama Executive Order on Wages

Saturday, August 24th, 2013

Bruce VailWASHINGTON, D.C.—On the eve of a march to commemorate Dr. Martin Luther King’s “I have a dream” speech, labor and civil rights activists are calling on President Barack Obama to honor King with an executive order that would raise wages for as many as two million workers.

One of the most poignant calls came Wednesday from Alvin Turner, a veteran of the famous 1968 Memphis garbage workers strike. Recalling a recent face-to-face meeting with Obama, Turner said “he told me personally he was working hard for the little man. If he don’t sign, he’ll disappoint me badly.”

Turner and others are pressing for an executive order that would establish a “living wage” for workers whose employment is tied to federal government contracts, grants, loans, or property leases. Earlier this year, the labor-backed “Good Jobs Nation” campaign produced evidence that many fast food workers at government-owned buildings in Washington, D.C., are earning below poverty-level wages, and that the same problems extend to other workers whose jobs are tied to federal government action. A study earlier this year from the pro-labor group Demos estimated an executive order could raise the income of about two million low-wage workers nationwide.

Rep. Keith Ellison (D-Minn.) and other members of the Congressional Progressive Caucus are making the order a centerpiece of their pro-worker “Raise Up America” campaign launched in late June. The Change to Win federation—backed most notably by the Service Employees International Union (SEIU) and the Teamsters—is a partner in the Progressive Caucus campaign.

Such an order would not require a vote in Congress or any cooperation from the anti-labor Republicans, noted Mike Casca, a spokesperson for Ellison. The president has sole discretion on whether to issue such orders, and pressure is rising on Obama to do so from prgressive Democrats, labor unions, faith-based groups, and others, Casca said.

If Obama fails to sign the executive order, “the federal government is complicit in the perpetuation of poverty,” charged Bill Lucy, a retired executive of American Federation of State, County and Municipal Employees (AFSCME) union, who joined Turner Wednesday for a public panel discussion of the issue. A similar executive order was signed by President Lyndon Johnson in 1965, he added, so “it’s not like it’s anything new.”

Radio talk-show host Joe Madison said marchers at the Aug. 24 events to honor the 50thanniversary of King’s speech will hear repeated calls from the speaking platform for an executive order. “We will do a disservice to those (original 1963) speakers—to Dr. King, to A. Philip Randolph—if we do not demand” presidential action on an executive order,” Madison said. Without a demand for action “it’s just a ceremony, and we don’t need any more ceremonies,” he said.

“King was at the intersection of the civil rights and labor movements,” commented Moshe Marvit, a lawyer, author and labor activists. King would have understood that “we need bold action from the president in the form of an executive order” to begin raising wages across broad sectors of the economy, Marvit said.

Change to Win spokesperson Paco Pabian told Working In These Times that there has been no unequivocal response from the White House yet on calls for the living wage executive order. There have been reports that Ellison asked Obama directly for such an order at a June 6 meeting with members of the Congressional Black Caucus, and that Del. Eleanor Holmes Norton (D-D.C.) had made a similar request, he said. In both cases, lawmakers were told that the matter would be reviewed by White House staff and that a definitive answer would be forthcoming sometime soon, Fabian said.

The push for the executive order gained an important backer on August 12, Fabian noted, when the New York Times published an editorial endorsing the idea.

“Many laws and executive actions from the 1930s to the 1960s, require fair pay for employees of federal contractors. Buth over time, those protections have been eroded by special-interest exemptions, complex contracting processes and lax enforcement. A new executive order could ensure that the awarding of contracts based on the quality of jobs created, challenging the notion that best contract is the one with the lowest labor costs,” the New York Times editors wrote.

Full disclosure: AFSCME is a web sponsor of In These Times.

This article originally appeared on In These Times on August 24, 2013.  Reprinted with permission. 

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

EEOC loses battle (but not war) on discriminatory background checks

Wednesday, August 21st, 2013

Christian SchreiberWhen it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job.  Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.

The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks.  According to the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants.

Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds.  Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness.  Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.

The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks.    These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks.   A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.

In 2011, California limited the use of credit checks in employment.  After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence.  However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.

In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?”  Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants.  Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence.  In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.)  Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.

These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants.   Advocates hope Freeman doesn’t signal that more bad news lies ahead.

This article originally appeared on CELA Voice on August 19, 2013.  Re-posted with permission. 

About the Author: Christian Schreiber is an active member of the California Employment Lawyers Association, where he serves on CELA’s Legislative Committee and Wage and Hour Committee.  He is also a member of the American Constitution Society, the Public Justice Foundation, and the Consumer Attorneys of California. Mr. Schreiber received his B.A. from UCLA in 1996.

Trying Times Call for Healthy Families Act

Tuesday, June 9th, 2009

These are challenging times for America’s families. One in 4 Americans, or about 23 percent of those surveyed in a recent Gallup Poll, report that they are “very worried” about keeping up with their monthly bills over the next six months. That’s up from 19 percent a year ago and 15 percent in March 2007.

And while many of us are working harder than ever to keep pace under the current economic pressure, workplace duties are not the only duties we have.

Family responsibilities await us at home. That is why we must pass the Healthy Families Act, introduced in the 111th Congress on May 18 by Rep. Rosa DeLauro, Democrat of Connecticut, and Massachusetts Sen. Ted Kennedy, also a Democrat.

Workers still get sick. Children still get fevers and runny noses. Mom or Dad still needs to take them to the doctor or just stay by their bedside to nurse them back to health. No matter how dedicated workers are to hanging on to their jobs at all cost, the need to occasionally take time away from work never goes away–not even in a tough recession, not even when jobs are this hard to come by.

Unfortunately, nearly half of private sector workers in the United States don’t have a single paid sick day to care for themselves. Additionally, nearly 100 million Americans get no paid time off to care for an ailing child or an aging parent.

Fewer “Wives” at Home

While this is an issue for all workers, the reality is that women, or “wives,” have historically been tasked with the family care-giving responsibilities–and most families do not have a “wife” at home these days.

The numbers speak for themselves. According to a 2007 report by the Multi-State Working Families Consortium, “Valuing Families: It’s About Time,” less than 6 percent of all women in the U.S. were in the work force at the turn of the century. By 1950, that number had climbed to 24 percent; by 2000 to 60 percent.

Meanwhile, the number of single parents–mostly women–has also mushroomed and single mothers are working many more hours than they have in past years. Why? The Valuing Families report attributes this to pent-up demand among women for career opportunity and economic independence–and economic necessity. Simply put, over the last 35 years women’s increased work and earnings has been the only avenue for many families to attain or maintain economic self-sufficiency.

Though the flood of women into the work force has been beneficial, it has raised an obvious question for families: how to provide all the care, support and supervision that children need without jeopardizing family economic self-sufficiency. For working women without paid sick days, occasionally staying home when a child is ill could mean the loss of a day’s pay, or worse, the loss of a job.

It’s a terrible choice that strikes fear in the hearts of all workers; a fear grounded in workplace reality.

Consequences of Time Off

In a 2006 survey, conducted by the Center on Work Life Law at the University of California’s Hastings College of the Law, 1 in 6 workers said they or a family member had been fired, suspended, punished or threatened by an employer for taking time off to care for themselves or a family member when ill.

This is all highly counterproductive.

Healthy workers are key to a healthy national economy.

Paid sick days reduce the business costs of turnover, absenteeism and lack of productivity when workers are sick on the job. In fact, if workers were provided just seven paid sick days annually, according to information released by the National Partnership for Women and Families in 2008, our national economy would enjoy an annual net savings of more than $8 billion.

Healthy workers also contribute to a healthy public. As public health experts and our own government have repeatedly warned as we contend with H1N1 swine flu, sick workers can protect public health by staying home. But they shouldn’t have to pay the awful price of job loss and family financial instability to do so.

For all these reasons we need to pass the Healthy Families Act.

It would allow workers to earn up to seven paid sick days a year to recover from their own illness, to care for a sick family member, or for diagnostic and preventative care. Equally important, it would allow workers time to recover from domestic violence or sexual assault. Just as no worker should have to choose between pay and health, no worker should have to choose between pay and safety.

Need for Federal Policy

In the last three years, paid sick days legislation has passed in three cities: San Francisco, the District of Columbia and Milwaukee, where implementation is being held up by legal challenges.

This year, there are 15 active paid sick-days state campaigns. But what America needs most in these tough economic times is federal policy like the Healthy Families Act.

A broad coalition of women’s, civil rights, health, children’s, faith-based and labor organizations supports the act. It has more than 100 co-sponsors in the U.S. House, strong leadership from Ted Kennedy in the Senate and the steadfast support of the White House.

In accepting his party’s nomination last August, President Obama said, “We measure the strength of our economy by whether the waitress who lives on tips can take a day off and look after a sick kid without losing her job.” Later he reiterated, “Now is the time to help families with paid sick days, because nobody in America should have to choose between keeping their job and caring for a sick child or an ailing parent.”

Congress must pass the Healthy Families Act. The President must sign it.

We must ensure that all families have the tools to be as healthy and as economically self-sufficient as possible as we move toward recovery in the days ahead.

About the Author: Linda Meric is a nationally-known speaker on family-friendly workplace policy and executive director of 9to5, National Association of Women. A diverse, grassroots, membership-based nonprofit that helps strengthen women’s ability to win economic justice, 9to5 has staffed offices in Milwaukee, Denver, Atlanta, Los Angeles and San Jose.

This article originally appeared in Women’s eNews on June 8, 2009. Reprinted with permission by the author.

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