Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘EEOC’

One year after the Weinstein story broke, sexual harassment claims are up 12% nationwide

Friday, October 5th, 2018

Exactly one year ago today, the New York Times published its first investigation into sexual harassment allegations against Harvey Weinstein.

Given the number of think pieces written about the public’s ever-shrinking attention spans and the ever-rising churn of the news cycle’s speed, it is astonishing that anyone is still talking about Harvey Weinstein at all, let alone that the revelations about his alleged behavior — coercive, manipulative, violent, tyrannical — would spread so far beyond the confines of Weinstein and his accusers.

Much of the change catalyzed by the Weinstein story, and this past year of a reinvigorated #MeToo movement, is still ongoing and impossible to quantify. But some preliminary data points are emerging. On Friday, the Equal Employment Opportunities Commission reported that sexual harassment claims were up 12 percent this year, compared with the 2017 fiscal year.

The EEOC also announced via press release that it had filed 66 harassment lawsuits in the last year — an increase of 50 percent from the year before.

As Variety reports, only a fraction of the total number of harassment claims in the U.S. are ultimately reported to the EEOC. Still, “the trend lines are telling. Over the previous seven years, harassment claims had declined from 7,944 in 2010 to 6,696 in 2017. The EEOC’s preliminary data shows an increase to about 7,500 claims in 2018, the highest level since 2012.” And state data released by California and New York shows an “even more pronounced” pattern.

Even with the dramatic uptick, we’re not quite at post-1991-Anita-Hill-hearings levels just yet: EEOC data has the number of claims rising 52% in 1992.

This blog was originally published at ThinkProgress on October 5, 2018. Reprinted with permission. 

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

Walmart sued for alleged discrimination against pregnant workers

Monday, September 24th, 2018

Federal regulators have filed a lawsuit against Walmart claiming the retailer forced pregnant workers to take unpaid leave and refused their requests for less physically demanding duties.

Companies are required by law to accommodate employee pregnancies the same way they would disabilities, according to an article on the lawsuit published by Reuters. The suit was filed Friday on behalf of Alyssa Gilliam and several other female employees.

In her complaint, Gilliam said she became pregnant in April 2015, at which point she requested “light duty or transfer to a less physically demanding job” to avoid any heavy lifting that might endanger her pregnancy. She said she was told “light duty” was only available “to employees on workers’ compensation.”

Gilliam claimed her requests for a chair, shorter work days, or additional breaks were also denied. She said that eventually, she was forced to transfer to a part-time job within the company, resulting in a pay cut and loss of benefits.

In November 2015, Gilliam said she submitted a doctor’s note to the company identifying a five pound lifting restriction. Walmart, in response, immediately placed her on unpaid FMLA (parental) leave, two full months before she was due to deliver.

The company allegedly denied requests for accommodations for other pregnancy-related medical restrictions made by other pregnant employees at the distribution center, the suit argues.

By contrast, Walmart “accommodated non-pregnant employees who were similar in their ability or inability to work.”

“For example, Defendant accommodated [distribution center] employees who had restrictions due to work-related injuries by providing them with light duty,” the suit reads.

“Defendant deprived Gilliam and a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their sex and pregnancy.”

Julianne Bowman, the EEOC’s district director in Chicago, said in a statement Friday that Walmart’s alleged refusal to accommodate the pregnant workers amounted to a violation of federal law.

“What our investigation indicated is that Walmart had a robust light duty program that allowed workers with lifting restrictions to be accommodated,” she said. “But Walmart deprived pregnant workers of the opportunity to participate in its light duty program. This amounted to pregnancy discrimination, which violates federal law.”

The EEOC said it is seeking “full relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Walmart’s practices going forward.”

In a statement Friday, Walmart spokesperson Randy Hargrove responded to the suit, saying the company’s anti-discrimination policies were in full compliance with the law.

“Our accommodations policy has been updated a number of times over the last several years and our policies have always fully met or exceeded both state and federal law,” he said.

The nation’s largest private employer, Walmart is reportedly facing similar lawsuits in other states, including Illinois and New York. In May last year, Hargrove issued a statement insisting the company was “a great place for women to work.”

According to Reuters, the company requested to have the Illinois suit tossed out earlier this year, but was denied. The New York suit is currently pending.

This article was originally published at ThinkProgress on September 22, 2018. Reprinted with permission. 

About the Author: Melanie Schmitz is an editor at ThinkProgress. She formerly worked at Bustle and Romper. Send her tips here: mschmitz@thinkprogress.org.

What activities are protected from whistleblower retaliation?

Monday, July 30th, 2018

Federal employees have strong — but not unlimited — whistleblower protections. There is too much at stake if you have built a career working for the U.S. government. Before you report wrongdoing or exercise employment rights, you of course want to be sure you won’t jeopardize your job, your benefits and your career.

Namely, it is important to know which activities are specifically protected from retaliation. Some protections are universal for all federal employees, and other whistleblower rules are agency-specific.

Protected whistleblower activities under federal employment law

The follows actions and activities are protected from termination and other forms of whistleblower retaliation:

  • Reporting to your employer a criminal act, law violation, fraud, waste or mismanagement of government funds, abuse of authority, substantial and specific danger to public safety, or threats to the integrity of scientific research such as censorship or manipulation of data
  • Refusing to engage in an unlawful practice, if you have informed your employer that you believe it violates the law
  • Cooperating with internal investigations, including testifying, assisting the investigation or preparing to do so.
  • Testifying before Congress, the EEOC or any federal or state proceeding (or preparing to)

Up to one-third of whistleblowers experience some retaliation

This is a simplified and not exhaustive list of protected activities under the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act. An attorney who specializes in federal employment law can advise on the procedures and protections specific to your agency and your circumstances.

Under the WPEA, you are protected if you report wrongdoing to a supervisor or coworker who participated in the unlawful activity. You are also protected if others have previously reported the same or similar wrongdoing.

You are not protected from adverse employment actions that are unrelated to your disclosures. But all too often, demotions, revocation of security clearance or other adverse actions are veiled and trumped-up retaliation for bringing scrutiny to unlawful activity. And that is exactly what the federal whistleblower laws are designed for.

About the Authors: 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.

This is why workplace harassment training is so ineffective

Wednesday, July 25th, 2018

It’s a scenario that has become familiar to almost anyone who works in an office.

After “recent events around the country,” a well-meaning sexual harassment educator comes in to teach the letter of the law. The mandatory training provides information on “each and every sexual harassment law,” but the effects fall somewhere between useless and detrimental. The trainer comes at a large financial cost and proves to be of questionable value. Ultimately, the trainees leave discouraged and the hostile climate remains.

This all-too-familiar scene was demonstrated by the arrival of Petey the Sexual Harassment Panda on South Park, way back in 1999. His song-and-dance approach before a class of fourth graders was obviously a caricature. But sexual harassment experts say the problems he demonstrated — overly legalistic trainings that are more about liability protection than culture change and that come without proven results — have become ubiquitous, even as America reckons with the #MeToo moment. Trainers and training companies make a mint off of these trainings, more and more places are mandating them, and there is a built-in disincentive for trainers and employers to ever really explore whether they are helping to reduce harassment.

Fran Sepler, a consultant and trainer who has worked in sexual harassment prevention for more than 30 years, says that trainings that focus mostly on what the law says are not productive and may actually convey that “anything short of illegal behavior is tacitly acceptable.”

“Even though unlawful harassment is a terrible thing and a problem, your odds of being [illegally] harassed are relatively small, say 20 percent for women and less for men,” she explained. “Rude and uncivil behavior — close to 100 percent experience that at some point.” Yet the typical workplace harassment training video shows unrealistic situations that don’t match up with real life. “I show clips of about 50 videos,” Sepler said, “All show people putting their hands on the backs of colleagues.”

In the 1990s, a series of Supreme Court rulings had the effect of giving companies an incentive to do sexual harassment training: liability protection. Linda Seabrook, general counsel and director of legal programs for the non-profit Futures Without Violence said that this was a big factor in the growth of the industry. [Full disclosure: Futures Without Violence has previously provided its programming for ThinkProgress staff and other employees at the Center for American Progress. ThinkProgress is an editorially independent project of the Center for American Progress Action Fund].

“The reason they do sexual harassment training is not prevention,” Seabrook told ThinkProgress. “It’s so they can avail themselves of a certain defense: Faragher-Ellerth.” The term refers to a pair of judicial precedents (Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth) that suggested employers who do trainings can be protected from liability for some sexual harassment that might occur among their employees.

Alas, she said, these trainings on what is prohibited do not solve the problem at all. “I don’t understand how people think that type of training will lead to prevention. It trains you on the law and the employer’s policy. It does not and cannot at all train or educate you on what fosters or facilitates this type of conduct and/or what type of workplace doesn’t allow for this type of conduct.”

A lucrative industry

In 1998, the Los Angeles Times predicted court rulings would soon spur employers to spend big to protect themselves from future liability by providing sexual harassment training to their employees. It cited a projection that “U.S. employers will spend $10 billion annually on employment-law-related training by 2000, up from $5 billion in 1995, with sexual harassment prevention one of the main topics.” Two decades later, one training company told the paper it had received 2,150 requests for its programs in January — over 8 times more than the previous January.

Seabrook said Futures Without Violence has seen a significant increase in the number of “workplace education” sessions it it has been asked to do since the start of the #MeToo movement. But to be successful, she noted, the focus really has to be on building a thriving workplace community: the “deep-seated gender norms,” the sexism, the misogyny, and the anti-LGBTQ sentiments in our society require more than “a one-hour training or a two-hour training once a year.”

Jocelyn Frye, a senior fellow at the Center for American Progress, is an expert on sexual harassment policy. She said there’s growth in the demand for harassment training: “People who do trainings are getting a significant uptick,” she said. And she believes trainings can be a good thing, “but it has to be good training.”

“Nobody funds research”

One of the biggest obstacles to culture change is ignorance — sometimes willful — about what the problems are and what actually helps to solve them. In the past, Frye said, “employers historically have been unwilling to do certain types of assessments because they feared it could be used [against them] in litigation.” And few employers’ harassment training providers have had the ability or volition to find out if their methods are working.

That’s why so few businesses have embraced an evidence-based approach to figuring out what actually works.

“The fact that there isn’t info is itself sort of the news,” said U.S. Equal Employment Opportunity Commission Commissioner (EEOC) Chai Feldblum, who co-chairs the commission’s Select Task Force on the Study of Harassment in the Workplace. She co-authored a 2016 report for that task force, asking, essentially, why the problem remains so pervasive and what can be done about it.

In a telephone interview, she told ThinkProgress, “The fact that the evidence hasn’t shown that the type of training done for a decade [to be effective] doesn’t say training isn’t important. It just says training — in a vacuum — doesn’t seem to have much of an impact.” What limited research there is suggests that some things do help: leadership can change office culture, management can hold people accountable, the organization can set clear policies that go beyond the legalistic, and workplaces can have meaningful training. “We have a sense of what can work… [But] we don’t yet have solid evaluations of each of these things. Certainly not of them as a total package.”

As with all research, money is a factor. “Nobody funds research,” Futures Without Violence’s Seabrook observed. Social scientists “don’t have the resources to do that kind of work,” she said, noting that the EEOC has no research arm and is historically a low-priority department for administrations. Still, she explained, legislation will soon be introduced in Congress to fund research into all types of workplace harassment.

Feldblum agreed and noted another challenge: “We’ve always had two issues: one was get the funding, two was get the subject of the research (the employer) to say yes” to research into their workplace. Unless an employer is willing to let researchers examine the climate of a workplace before and after trainings and other interventions, there is no way to really know if they worked.

Legally, companies could be held liable for holding trainings they know are ineffective, creating a disincentive. But Frye says “it’s better to know your problems than to feign ignorance.”

According to Sepler, a lot of researchers would be “delighted” to do those kinds of examinations if they had the funding. “What if they evaluate a training model and and it shows it is ineffective?” she asked rhetorically. Despite the desire for evidence of results, “no one wants to be the organization where there is data [proving] you’ve been doing something demonstrably ineffective.”

Vicki Magley, a professor of psychology at the University of Connecticut, is one of the few people who has studied which interventions actually succeed at reducing harassment. She observed that most of the assessment of training is done by the vendors themselves — and it is less-than-rigorous data. “I’ve talked to many, many training companies over the past few months who want to tell me all the wonderful things they’re doing with their training. They don’t sound terrible…” she said. “But when I ask, ‘how do you evaluate whether this is doing anything?’, they have no answer.”

“You can ask trainees at the end of a training how well they liked the training, with smiley faces. That doesn’t tell you anything about attitude change, culture change, perceived risk [for reporting harassment],” she said. Instead of a rigorous before/after assessment, participants are mostly asked if the experience was helpful and if the free cookies served were fresh. That sends the message to employees that the company doesn’t take such trainings seriously.

In her own research efforts, she has encountered strong resistance to that sort of before and after study. Recently, she recounted, one organization hired her to evaluate a training but refused to let her evaluate efficacy. “I was being asked to come in and evaluate a training. I was told I couldn’t really evaluate it in the way that was going to be useful because ‘it was going to end up costing too much money and that would just be too expensive.’” With her university bearing the brunt of the costs, she said, she knew “at the end of the day, they just didn’t want to know.”

Magley also noted that many companies use online trainings which are even less evidence-based and can easily be completed by employees with “half an eye and half a heart.”

“If there’s a dearth [of research] on sexual harassment training, there is almost zilch on online training,” she says. “We really don’t know if it does anything.”

A roadmap for employers

Still, state and local lawmakers continue to pass laws making harassment training mandatory, without really taking into account whether it helps. Often these laws require that medium and large employers provide lengthy explanations about the letter of the sexual harassment law. In turn, this increases the incentives for training companies to remain ignorant about whether their in-person or virtual trainings are useful.

Robin Shea, a partner at Constangy, Brooks, Smith & Prophete who tracks state harassment training laws, said in an email that New York State and New York City were the most recent major jurisdictions to enact mandatory training for all major employers. When they go into effect in the upcoming months, New York will join California, Connecticut, Maine, and possibly additional states. “I do expect mandatory harassment training laws to be a hot legislative topic this year and in 2019 because of the #MeToo movement,” she predicted. Earlier this year, Connecticut’s senate, in a bipartisan vote, moved to expand the required two-hour training to employers with at least 20 employees (instead of 50) — though that bill died in the state’s house due to controversy around some other provisions.

But how to actually improve the problem? Feldblum said the EEOC task force report — a series of non-binding recommendations — is a “road map for employers to take.” It recommends an array of steps including greater accountability, new and different approaches to training, and more effective reporting systems.

Among the ideas in the report is a proposal that when employers accused of harassment enter into settlement agreements with the commission, they include requirements that researchers be allowed to work with the employer to assess climate and harassment levels before and after implementations of compliance trainings, civility trainings, and bystander intervention trainings.

So far, she has not seen a huge number of takers. “Even if we find an employer who is willing, we still have to fund it,” she said.

The University of Connecticut’s Magley thinks ultimately the solution may have to come from the judiciary. “Courts need to say, ‘You can do training, that’s a fine thing to do, but if you do that, you need to document that it is effective, that it’s doing what it’s supposed to be doing.’” By requiring that for legal liability protections, organizations would be “held accountable to truly effectively change structures,” rather than “do whatever they can, as cheaply as possible, to check the box.”

With the Trump administration working to pack the federal courts with Clarence Thomases and Sam Alitos who side with businesses over workers in case after case, that shift may not be quick.

“Legal change is a slow-moving train,” she acknowledged, but “hope rests on the shoulders of current law students actively reading this literature and law professors who are training that that type of thinking can start to permeate and change the culture.”

This article was originally published at ThinkProgress on July 25, 2018. Reprinted with permission. 

About the Author: Josh Israel has been senior investigative reporter for ThinkProgress since 2012. Previously, he was a reporter and oversaw money-in-politics reporting at the Center for Public Integrity, was chief researcher for Nick Kotz’s acclaimed 2005 book Judgment Days: Lyndon Baines Johnson, Martin Luther King Jr., and the Laws that Changed America, and was president of the Virginia Partisans Gay & Lesbian Democratic Club. A New England native, Josh received a B.A. in politics from Brandeis University and graduated from the Sorensen Institute for Political Leadership at the University of Virginia, in 2004. He has appeared on cable news and many radio shows across the country.

Workplace Safety: Expect Excellence From Your Employer

Tuesday, June 19th, 2018

You should expect your employer to establish a strong safety culture that results in an injury-free, healthy, non-hostile workplace.

Unfortunately, OSHA can only do so much to establish what “safe and healthy” means, or to enforce those protocols. Many people, like those at Public Citizen, recognize that “government protection of workers is far from adequate.”

This means that more must be done than just meeting government standards.

High Standards for Health and Safety Should Be the Norm

Each workplace is unique, so those in charge of safety must identify and mitigate their specific health and safety issues. Hazards also change over time, so safety protocols must be adapted.

The aim, after all, should be to make sure you stay safe and healthy, physically, mentally, and emotionally. That means no workplace injuries, and certainly no fatalities, nor any disrespectful behaviors: expect respect.

What Is a Safe and Healthy Workplace?

In order to make sure you are in a safe and healthy workplace, it’s important to understand what that means. Consider some of the most common causes of workplace injuries: stress, fatigue, falling objects, lifting, collisions, and trip and falls. Are your safety managers addressing these issues?

The environment you work in should be healthy. That means clean air, a clean workspace, good lighting, and reasonable noise levels.   

Management should regularly provide information and training about how to stay safe and healthy. They should encourage and facilitate physical fitness, fatigue prevention, mental and emotional well-being, and healthy eating.

Your health and wellness, and that of your co-workers, are the foundation of a satisfying and productive work environment. Consider that your well-being is also contingent on your co-workers’ well-being. A fatigued or distracted workmate is more likely to create unsafe circumstances for others.

The more rested, clear-headed, and healthy the staff, the safer the work environment will be for everyone.

Be Proactive

You play a part in safety, too. Take moments to stretch, rest, and move as needed. When stress is high, reset with some deep breaths. And keep your workspace clean and free of hazards.

Offer help to other employees who are doing something unsafe. Be respectful of others and expect respect from them. If you see hazards, report them to your safety manager. Make suggestions to improve health and safety. Is there a vending machine with soda, candy, and chips? Request that your employer swap some (all?) of that out for healthier options.

Initiate a walking group or encourage others to join you in training for a local 5 km. Ask your employer if they’ll sponsor you. Get creative in helping to make your workplace a thriving environment.

Know Your Rights, Use Your Voice

Of course, the ideal workplace isn’t always possible in the real world. Some employers simply won’t prioritize employee well-being to the degree they should. When you experience a violation of your health or safety at work, write it down and report it to your employer. A paper trail is your best friend if you need to take further action.

If your employer doesn’t remedy the problem, contact OSHA. You can do this anonymously. You have rights and you should be aware of what they are. In his article “The 6 Reasons OSHA Will Inspect Your Workplace,” Gabe L. Sierra, the managing director of Prometrix Safety Consulting, states, “In many industries, employee complaints are the single most common reason why OSHA will conduct an inspection at a workplace.”

Are you afraid of your employer retaliating? Retaliation is illegal. You can report that to OSHA, too. If you experience discrimination or harassment, you can file a charge with the U.S. Equal Employment Opportunity Commission. For extreme cases of health and safety violations, you can consult a lawyer and file a lawsuit.

Just don’t stay quiet. Speaking up can be frightening, but change doesn’t happen if people remain silent. Consider the recent shift toward intolerance of sexual harassment and assault in the TV and film worlds, and beyond, because people spoke up. By saying something, you’re part of the solution, even if that solution takes time to arrive.  

Your Excellent Work Environment

Let’s hope that you have a safety manager who will be receptive to your suggestions and want to work toward an optimally safe environment.

Most of us spend an enormous amount of time at work. Why wouldn’t we expect and contribute to it being as safe and healthy as possible?

About the Author: TJ Scimone founded Slice, Inc. in 2008. His priority has been design, innovation, and safety. The result is a unique line of cutting tools, all of which are ergonomic and feature finger-friendly® blades. Safety is a key aspect of the Slice message and the website features a weekly Workplace Safety Blog.

Failure to Accommodate is Disability Discrimination

Friday, June 1st, 2018

Many people with disabilities face barriers before they even get their foot in the door. But the hiring process is only one form of disability discrimination.

Employers — including federal agencies and government contractors — are legally obligated to accommodate disabilities. But what is considered a “reasonable” accommodation? What if the employer says no?

What does disability accommodation look like?

Under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, employers must provide reasonable accommodations to enable individuals with a disability to (a) compete for a job, (b) access the workplace, (c) perform the functions of the job and (d) enjoy the perks and privileges of the job.

The Equal Employment Opportunities Commission offers these examples of disability accommodations:

  • A wheelchair ramp or handicap-accessible bathroom
  • Specialized equipment or workstation alterations
  • Dictation software for a person with carpal tunnel syndrome
  • An interpreter or TTY software for a hearing-impaired person
  • Changing or eliminating some job tasks
  • Dividing the work day or allowing for extra breaks
  • Working from home (telecommuting)
  • Reassignment to a vacant position

What is the process for requesting accommodations?

Many applicants are hesitant to ask for accommodations during the hiring process. They don’t want to jeopardize their shot, or may not know what accommodations are needed until they start the job.

A request for accommodations can be made at any time, orally or in writing. Once the request is made to a supervisor or manager, it must be forwarded to the agency’s designated Disability Program Manager. The DPM must accept the request and forward it to the appropriate parties. The DPM must respond to the employee within 10 days to discuss viable solutions.

What does failure to accommodate look like?

If management ignores or flatly refuses a reasonable request, that constitutes discrimination. The law requires employers to make a good faith attempt to work with the disabled employee. If the accommodation is not feasible because of cost or other factors, the employer is obligated to offer alternatives or consider compromises. Under the law, refusing to engage in an interactive process is considered failure to accommodate.

For federal employees, all requests for accommodation go through the EEOC. Sometimes the EEOC authorizes an accommodation that differs from the original request. This is not considered failure to accommodate.

What are the remedies for disability discrimination or inadequate accommodation?

If the EEOC denies a request, it must give a detailed explanation why. The employee can request reconsideration through an informal process. If the decision is still unsatisfactory, or if there has been an adverse action, the employee can initiate a formal appeal or grievance through the EEOC or the Merit Systems Protection Board.

If a government contractor or other private employer denies a reasonable request, the remedies vary. The employee could sue to force the employer to provide accommodation. If the employee was let go, reassigned or harassed after requesting accommodations, they could sue for reinstatement or sue for damages for wrongful termination or retaliation.

People with disabilities want to work and contribute and be valued, just like everyone else. If the accommodations would be effective and would not cause the agency or company undue hardship, the law requires it.

About the Authors: 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.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on May 31, 2018. Reprinted with permission.

Toiling Over a “Puddle of Blood”: Why These Warehouse Workers Are Standing Up to Abuses

Monday, April 23rd, 2018

Fifty years ago, Dr. Martin Luther King Jr. lent his support to the historic Memphis sanitation workers’ strike. Today, the safe working conditions that strikers fought for in 1968 remain elusive for low-wage workers in one Memphis warehouse.

Workers at the XPO Logistics warehouse in Memphis announced in early April that they had filed a complaint to the Equal Employment Opportunity Commission (EEOC) alleging rampant abuse, including sexual harassment. On April 3, workers held a rally with the International Brotherhood of Teamsters (IBT) to coincide with the filing of the EEOC complaint.

The complaint was triggered by an XPO worker’s death that co-workers attribute to company policies which restrict workers from leaving the job. In October 2017, Linda Neal, 58, died at work after passing out on the job. Workers allege that a supervisor denied Neal being given CPR by a co-worker. Medical reports confirmed that Neal died of a heart attack caused by cardiovascular disease.

XPO Logistics, based in Connecticut, has warehouses across the country and a market value of nearly $9 billion. The company provides transportation, delivery and logistics for Verizon, Ikea, Home Depot and other retailers. The Memphis warehouse has more than 300 permanent employees and more than 400 temporary workers.

Lakeisha Nelson, who has worked for XPO since 2014 and was close to Neal, tells In These Times, “[Neal] was a mother figure to a lot of us, and we had to become family in that building. We had to work over the puddle of blood that was left behind the next morning, and that hurt me to my core.”

Nelson believes company policy played a role in Neal’s death, recalling that an XPO supervisor would not allow Neal to leave work when she expressed she was feeling ill.

“She told them she wasn’t feeling well and this was just XPO’s policy,” says Nelson. “I don’t blame the supervisor, he was just doing his job. This is what he has to do in order to keep his job—don’t let anyone go home.”

“The only thing that’s important to XPO is them making money, and if it takes our lives to get their money, then our lives are expendable,” says Nelson. “And they tell us all, if you don’t like the way we do things, find another job. It’s very, very easy to get fired there.”

Staff workers have filed multiple complaints regarding safety hazards and dangerous working conditions, but little has been done by management to address them, according to Nelson.

Nelson says the building and ceiling are caving in while workers face harsh temperatures inside that fluctuate with the weather, and that sweaters are only allowed if they are purchased through the company.

The forgotten women of #MeToo

Sexual harassment at the company is another issue that has gone unsolved, despite attempts to get Human Resources involved, according to Nelson.

The warehouse has a history of sexual harassment. In 2015, New Breed Logistics, which was acquired by XPO in 2014, lost a $1.5 million dollar suit after a male supervisor sexually harassed three female temporary workers who were then terminated for refusing his advances.

Elizabeth Gedmark is a senior staff attorney for A Better Balance, an organization that promotes paid leave and other family-friendly policies, and which is supporting the Memphis warehouse workers. She says that low-wage workers are particularly at risk of harassment. 

“The notion that you can just quit and leave your job when you’re faced with sexual harassment or discrimination does not apply to a low-wage worker needing to get by living paycheck to paycheck,” Gedmark tells In These Times. “If she does file a complaint, she faces a very real likelihood of retaliation.

“They’re very much a part of the global #MeToo movement that’s not just about movie stars or wealthy women, it’s really about these women being put front and center, the hard-working, average women who too often go unnoticed.”

Next steps

Restrictive scheduling and time-off policies are also affecting XPO workers’ personal lives. Nelson claims that workers often do not know when their shift will end and have little to no notice of overtime.

Elizabeth Howley, 38, is the operational administrator for the Memphis warehouse and has been at the company for six years. Howley has also expressed concerns over poor working conditions, claiming workers have been forced to deal with bugs, snakes and other creatures infesting the workplace. But, she says, the strict hours are what have most driven emotional stress in her personal life.

Howley says that most of the women working at the warehouse are single mothers, and being separated from their families and children for long periods have taken a toll on them. When Howley’s oldest son dropped out of high school, she says, she was unable to get out of work to help get him back into school. 

“I’ve lost so much time with my children in the past five or six years being with this company and it hurts because my kids are in need of me and I can’t be there for them,” Howley tells In These Times. “I had to apologize, saying ‘I’m sorry, son, I don’t have PTO time to get you back into school.’”

The Memphis XPO warehouse workers are currently working with IBT to address these issues and improve the safety conditions and end the harassment that continues in their workplace. They are in the early stages of organizing, and IBT General President James P. Hoffa has pledged to back them in their union drive. They have also earned the support of civil and women’s rights groups such as the NAACP and National Women’s Law Center.

“Maybe by exposing XPO and the conditions that they make these workers work under will bring about a change,” Felicia Walker, an international organizer for IBT, tells In These Times. “These are human beings, not animals. There are laws to protect animals from that treatment, what about humans?”

This article was originally published at In These Times on April 23, 2018. Reprinted with permission. 

About the Author: Mica Soellner is a journalist currently based in Washington D.C. She has written for a variety of global outlets and is interested in pursuing stories about issues in the workplace.

The utterly nonsensical way NFL cheerleaders must live their lives comes out in discrimination suit

Tuesday, March 27th, 2018

It’s no secret that NFL cheerleaders are underpaid, undervalued, and held to ridiculous beauty standards by NFL organizations.

But on Sunday, the New York Times published an infuriating report that reveals that some teams exert almost maniacal control over both the public image and personal lives of cheerleaders — all based on toxic, outdated notions of how both men and women should behave.

The article tells the story of Bailey Davis, a former New Orleans Saints cheerleader who has filed a complaint with the Equal Employment Opportunity Commission. The main issue at hand involves the restrictions that NFL teams routinely put in place barring players from fraternizing with their respective team’s cheerleaders. As it turns out, the Saints are so particularly worried about the matter that they put the impetus fully on the cheerleaders to avoid NFL players in all social situations, be it on social media, at a restaurant, or at a party.

In her complaint, Davis claims she was fired by the Saints for posting a photo of herself in a one-piece bathing suit on her private Instagram and for attending a party at which Saints players may have been in attendance. On the latter charge, Davis denies that she violated any team regulation. But as the report makes clear, undertaking a good faith effort to avoid NFL players in this fashion may simply be an unreasonable thing to expect of anyone.

According to the Times, keeping themselves away from NFL players on social media and in person is a never-ending job for Saints cheerleaders, who are considered part-time, contract employees, and barely earn minimum wage.

Cheerleaders are told not to dine in the same restaurant as players, or speak to them in any detail. If a Saints cheerleader enters a restaurant and a player is already there, she must leave. If a cheerleader is in a restaurant and a player arrives afterward, she must leave. There are nearly 2,000 players in the N.F.L., and many of them use pseudonyms on social media. Cheerleaders must find a way to block each one, while players have no limits on who can follow them.

These rules are offensive on multiple fronts. First of all, they put sole responsibility for behavior on the women, making it their duty to ensure they don’t in any way “tempt” football players. It also insinuates that their mere presence is an enticement of sorts, that they’re inviting sexual attention or even harassment merely by living their lives or posting pictures on social media.

It also paints NFL players as men who lack self-control, the ability to behave properly around women, or the capacity to follow simple rules.

The difference in rules and regulations between men and women is the crux of Davis’s EEOC gender discrimination complaint. In the suit, she argues that she qualifies as “NFL personnel,” which means the NFL’s personal conduct policy applies to her as well as her fellow cheerleaders.

That same personal conduct policy prohibits any discrimination based on race, color, religion, sex, national origin, age, disability, or sexual orientation. Davis asserts that because the rules governing both social media use, as well as who is allowed to be with whom in public, are restrictions that are only placed on cheerleaders. As the team cheerleaders are all women, Davis argues that this is a form of discrimination.

“If the cheerleaders can’t contact the players, then the players shouldn’t be able to contact the cheerleaders,” Sara Blackwell, Davis’s lawyer, told the Times. “The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.”

This article was originally published at ThinkProgress on March 26, 2018. Reprinted with permission.

About the Author: Lindsay Gibbs is a sports reporter at ThinkProgress.

How Bosses Use “Open Shop” Campaigns to Crush Unions

Wednesday, December 6th, 2017

U.S. employers have never been particularly accepting of unions. Yes, there were a few decades after World War II when most employers engaged in a largely stable pattern of collective bargaining that recognized unions as junior partners in industry. Wage increases kept pace with gains in productivity, and union endorsements were courted by both parties. But, as heavily as that postwar labor relations compact features in the rosy rhetoric of union boosters who decry global capitalism and the modern GOP, the truth is that corporations have been periodically going to war against their workers far more often they’ve occasionally conceded their basic humanity.

Two new books shed light on the sustained union-busting campaigns that bookended that all-too brief period of labor-management détente. One focuses on the innocuously named “open shop” drive, which was a vicious nationwide union-busting campaign that began at the dawn of the 20th century and lasted well into the New Deal era. The other documents how the last great wave of worker militancy was smashed by a coordinated union-busting drive that anticipated Ronald Reagan’s presidency by more than a decade.

Reform or repression?

The unions that managed to survive the turbulent boom-and-bust cycle of the 19th century were largely organized on a craft union model that bears only a slight resemblance to today’s trades. Unions not only trained their members in their craft skills, but also determined the process, materials and speed of production. Employers had to contract with strong unions for a certain number of orders at prices that the unions determined.

The “open shop” drive was a coordinated effort by industry associations like the National Association of Manufacturers for bosses to gain complete control over production decision-making. This is the subject of Chad Pearson’s Reform or Repression: Organizing America’s Anti-Union Movement.

As Pearson compellingly documents, open shop campaigners sought to place their movement within the mainstream of the vaguely-defined “progressive movement” that preceded the Great Depression.  Corporate executives railed against “union dictation,” and claimed their aim was to wrest control from union contracts in order to promote harder-working men. The breakfast cereal magnate C.W. Post claimed his union-busting work was necessary to protect children from picket-line violence. Some of the earliest appearances of the noxious slogan “right to work” come from this era.

That phrase was disingenuously employed to convey a sense of freedom for workers to not have to pay fealty to a union in order to get hired for a job. In practice, the “freedom” to not join a union was paired with a blacklist for those who chose to do so. Promoting “harder-working men” was a way of speeding up Taylorist production lines to sweatshop standards. And violence on picket lines was almost always instigated by privately hired armies of Pinkertons and other assorted spies and mercenaries.

Open shop campaigners did find allies within the broad political class of self-styled “progressives” who—then as now—did not root their efforts in the centrality of class politics. For example, it is somewhat shocking to read in Reform or Repression about “open shop” endorsements from Louis Brandeis—the attorney who negotiated the vaunted “Protocols of Peace” in the New York City garment industry. Without a base of actual workers, these earlier progressive men supported unions in the abstract, but were uncomfortable with the grisly details of strikes, boycotts and enforcing the union shop that were necessary to maintain unions as a permanent presence in the economy.

In this hair-splitting, open shop advocates probably found their biggest hero in Theodore Roosevelt. The trust-busting “progressive” was the first sitting president to weigh in on industrial disputes and mediate settlements that involved pay increases and other concessions to striking workers. He also steadfastly refused to endorse any deal that forced any employer to recognize any union as the exclusive representative of its workers.

Open shop organizations also recruited “free men” to be face of their drives. We can call them scabs, but forcing workers to join a union before they could get the job rubbed some the wrong way, and bosses exploited this.

Pearson has a good eye for vivid character studies. A particularly engrossing chapter contrasts the stories of two very different class traitors in the Cleveland open shop movement: John A. Penton and Jay P. Dawley. In the 1880s, Penton was president of a craft union of ironworkers that competed for worker loyalty with a more established union called the Iron Molders Union (IMU). In those days, unions competed to see who could organize the most militant protests. A campaign that ended in a union contract could mean terms that forced workers to join the victorious union—or face termination—If they wanted work. By 1893, Penton’s union had been forced to merge with the larger IMU.

The bitterness of that defeat curdled and warped Penton’s principles. He became an “open shop” advocate, ostensibly because men should be free to choose which organization to join—or not join. In practical effect, he served as a propagandist and recruiter of scabs for the industry’s campaign to break the Cleveland IMU in 1900, where he was regarded as “The Dr. Jeckyl and Mr. Hyde of the Labor Movement.”

Dawley was a compatriot of Penton’s, a lawyer who secured injunctions against union picket lines and defended Penton’s efforts to arm his scabs with .38 caliber revolvers. The former president of the Cleveland Employers Association shocked his white shoe comrades by coming to the aid of the city’s striking garment workers in 1911. It was no small coincidence that Dawley’s conversion-by-fire came just two months after the actual fire at New York’s Triangle Shirtwaist Factory. That the picket lines were mostly full of women helped him finally see that the violence and law-breaking that he so abhorred in industrial conflict was a mostly one-sided affair—and that it was his (former) side that was perpetuating most of it.

Dawley spent the rest of his life as an advocate of union causes—albeit one who counseled peaceful bargaining and arbitration over strikes and boycotts. There’s a lesson about the power of narrative and visible leaders here. The average union member today is more likely to be a black or brown woman than some Archie Bunker cliché. Labor can pick up unexpected allies by putting the actual workers whose livelihoods are on the line front and center in our campaigns.

Knocking on labor’s door

How women and people of color began to organize themselves into the mainstream of the labor movement is the subject of Lane Windham’s new book, Knocking on Labor’s Door: Union Organizing in the 1970’s and the Roots of a New Economic Divide. It is also a tale of how the open shop drive came roaring back to life.

This is an essential read for anyone grappling with the question of why modern union organizing isn’t more successful. It is also a much-welcome corrective to the false narrative that unions simply stopped trying to gain new members sometime after the merger of the AFL and CIO.

In fact, the early 1970s brought a major wave of worker militancy, the kind that periodically roils the United States. The massive teacher rebellion of unionization that began in New York City in the early 1960s was still in full-swing. Unprotected by the National Labor Relations Act and still with few public-sector labor laws to fill the gaps, teachers continued to stage illegal strikes for union recognition throughout the decade. Other public sector workers fought for union recognition, too. The 1968 Memphis sanitation workers’ strike, which Martin Luther King was in town supporting when he was assassinated, was a notable flashpoint in that struggle.

The unionized private sector was also in the midst of a historic strike wave. Many of the strikes were formally sanctioned by union leadership seeking wage increases that kept up with record-high inflation. A large number of workers rocked the postwar labor relations framework by waging wildcat strikes in defiance of contracts that traded impressive-sounding wage increases for brutal speed-ups in productivity. There’s a whole bookshelf of material written about how one General Motors factory in particular—its Lordstown, Oh. plant—simply could not maintain smooth production between its periodic wildcats and the thousands of workers who quit every year. 

During this same period, unions sought to organize roughly half a million private sector workers a year in NLRB elections. Much of this organizing was led by women and workers of color. It represented, Windham argues, a second wave of the civil rights era, as regulations like the Equal Employment Opportunity Commission opened up new industries and jobs to workers who had previously been excluded. Once in the job, women and minorities soon concluded that actual fair treatment would only come with unionization.

Although the number of eligible workers voting in union representation elections did not decline in the 1970s, the percentage of successful union yes votes did. For the first time since the NLRB was established in 1935, unions began to lose a majority of all representation elections—a decline that has continued to the present day.

Egged on by a then-new cottage industry of “union avoidance” consultants and anti-union law firms, employers aggressively pressed against the limits of labor law when campaigning against union organizing drives. They skirted the prohibition against threatening the jobs of union supporters by phrasing those threats as predictions of the negative impact that a union would have on the company’s bottom line. They threw out fantastical scenarios about how unions might trade away benefits. They swore the unions would make no gains unless the workers went on strike—and that the company would permanently replace them if they did so. They froze planned pay increases and told the workers that the unions and the law forced them to do so.

And when they got caught actually breaking the law—by being too obvious in their espionage of organizing activity or materially punishing a union leader—the paltry punishments that were meted out sparked a new union-busting revolution. Why obey the law at all? Paying an illegally fired union activist just the wages she was owed—minus whatever unemployment insurance or moonlighting money she earned in the years it took for the case to get adjudicated—was far less money that a successfully negotiated union contract would ever cost.

At the heart of American corporations’ renewed resistance to union organizing was the increase in domestic competition from foreign competitors. This was not strictly the dumping of products made cheaper in overseas sweatshops that we tend to think of as the driver of inequality in the global economy. The first pangs of competitive anxiety were triggered by German and Japanese manufacturers who had finally recovered from the world war and could export quality products at affordable prices. Their competitive edge was that the cost of their workers’ health and retirement benefits were not loaded onto their payroll and then passed on to consumers as a higher retail price: Those social welfare benefits were the responsibility of the state.

Since most U.S. corporations—to this day—are unlikely to embrace social democracy, those in the 1970s resolved to fight the global pressure by fighting their own workers. But union supporters must grapple with an uncomfortable fact about our system of labor relations, which bases the very existence of a union, as well as the additional expenses of pensions, health insurance and other “fringe” benefits, on the individual firm level. In any industry that is not 100% unionized, the decision by workers to form a union really can make a company less competitive. And high-union-density industries are just juicier targets for capitalist vampires like Airbnb and Uber to compete by undercutting those standards.

In her conclusion, Windham writes “As the twentieth-century version of industrial capitalism gives way to new forms, working people find themselves in need of a wholesale redefinition of collective bargaining.” She finds some hope in the “alt-labor” organizations that are “struggling to shore up workers’ economic security in new ways, such as through workers’ centers, new occupational alliances, and public campaigns to raise wages.”

Both Pearson’s and Windham’s books, by highlighting the controversies in two of labor’s roughest periods, help us sharpen the question of how we regroup and reform to fight back in the 21st century. I would encourage more creative thinking about “all-in” labor rights models. What if we pushed for laws to end the “at-will” legal doctrine and grant a “Right to Your Job” to all workers? And what if we looked to countries that we compare ourselves to that have labor laws that apply wage increases and work rules to entire sectors all at once?

What these books make clear is that bosses rarely stop trying to blow up whatever system workers have won to enforce basic standards of decency—and that their strategies evolve with the times. How much longer will we spend trying to patch-up a badly battered 70-year-old labor relations system?

This article was originally published at In These Times on December 5, 2017. Reprinted with permission. 

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.

Do Nondisclosure Agreements Perpetuate a Toxic Workplace Culture?

Thursday, November 2nd, 2017

In Hollywood, the cat is out of the bag. Scores of women (and men) are pouring out pent-up tales of sexual assaults and sexual harassment by famous producers, directors and actors. Every day brings new accusations against some movie icon. A group of women at Weinstein Co. has asked to be released from nondisclosure agreements so they can speak publicly to Harvey Weinstein’s alleged decades of predatory abuse and brazen quid pro quo demands.

The mere fact that an entire group of employees at one company is seeking to be unmuzzled is testament to a deep problem. Nor is it limited to the entertainment industry. NDAs and “hush money” settlements are common in every employment sector, including government agencies.

Sweeping it under the rug … until someone notices the lumps

There are two types of nondisclosure agreements at play in scenarios like the Weinstein saga:

First, there are standard NDAs in employment contracts which prevent employees from speaking up about what they’ve seen or experienced. These are a preemptive strike against disclosures that would reflect negatively on the company. When victims, witnesses and allies are effectively gagged, offenders are off the hook and a culture that tolerates sexual harassment is perpetuated.

Second, there are nondisclosure “agreements” thrust upon victims after the fact when they report harassment/assault or threaten legal action. In exchange for a payoff and/or a specifically worded NDA, they keep their jobs or walk away with a settlement and never speak of it again. The alternative is the threat of being blacklisted and smeared.
Again, this dynamic is not unique to Hollywood. Sexual harassment and coerced silence happens in every industry.

How nondisclosure agreements inhibit sexual harassment claims

A few mavericks have violated their NDAs with the Weinstein Co., knowing the company would face fierce public backlash if it tried to enforce the confidentiality agreements. But most people who are subject to NDAs do not have the upper hand. They can be terminated, sued and “outed” for breaching the agreement. The contract may specify monetary damages greater than the original settlement.

One-third of the 90,000 complaints to the Equal Employment Opportunities Commission in 2015 involved workplace harassment. About 45 percent of those cases were sexual harassment. A report by the EEOC revealed that taking formal action is the least common response for women or men who reported being sexually harassed at work.

Why would they not file a formal complaint or lawsuit? Some fear termination or other retaliation. Others fear they won’t be believed or that nothing will change. And some take no action because their hands are tied by employment agreements.

Many employment contracts and NDAs require that claims against the employer – including sexual harassment — be resolved through arbitration. Employers favor mandatory arbitration clauses because (a) there is no risk of a big jury award and (b) the proceedings are private. Whatever the outcome, it is kept quiet. For victims of sexual harassment who want their abuser exposed, arbitration is a dead end.

Nondisclosure agreements are not ironclad

The mere threat of enforcing an NDA is very effective. Some victims do not want the public exposure, expense and stress. Settling and staying mum was their way of making the best of an awful ordeal and moving on.

However, NDAs are not as bulletproof as most employees think. No employment agreement can supercede state or federal laws. A victim of a crime cannot be prevented from talking to police or testifying in court. An employer cannot prevent an employee from reporting sexual harassment to the EEOC. A settlement agreement and NDA only prevents the employee from suing the company and speaking publicly about the incident. And if the agreement was overreaching or coerced, it may not be enforceable.

If you are subject to a nondisclosure agreement, you also cannot be barred from talking to a lawyer. An employment law attorney can explain your rights, your legal options, and any possible consequences of breaching the NDA.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on November 3, 2017. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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