Outten & Golden: Empowering Employees in the Workplace

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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.

One Last Time: OSHA Extends Recordkeeping Reporting Deadline

Friday, November 24th, 2017

After multiple delays, OSHA has finally announced that employers who are required to keep OSHA injury and illness records must send summary information in to the agency by December 15, fifteen days after the deadline announced last June, when the agency proposed to delay the reporting deadline from July 1 to December 1.

The rollout has been plagued by numerous delays. First OSHA delayed until August 1 in putting up the website which was supposed to be up by the end of February.  Then there came false accusations of a data breach, and finally a delay in issuing the final change in the required submission deadline.

When the regulation was issued last year, OSHA stated that the data would be published on the web. “Public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses,” OSHA announced when the regulation was issued in May 2016.  The Trump administration has not disclosed its intentions about publicizing the data, although there is legal precedent for requiring the agency to publish the data on OSHA’s website.

Other parts of the “electronic” recordkeeping regulation are being challenged in court and are under reconsideration by OSHA. The agency also announced today that OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.”

Some in the business community don’t like requirements that more detailed information on injuries and illnesses be sent to OSHA starting next year, or that OSHA has prohibited employers from retaliating against workers for reporting injuries.  At last week’s Congressional hearing, Secretary of Labor Acosta falsely stated that the regulation “was asking for some information that was very detailed and that identifies individuals.”

OSHA also noted that seven state plans, California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming, have not yet adopted the regulations. States are supposed to adopt all new OSHA standards and regulations within 6 months of federal OSHA’s issuance.

This blog was originally published at Confined Space on November 22, 2017. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Trump’s new rule allows employers to drop birth control coverage with no oversight

Friday, October 6th, 2017

New contraception rules outlined by the Trump administration will allow employers to stop covering birth control — with zero government oversight.

The administration announced on Friday that, effective immediately, it was rolling back federal requirements introduced under the Obama administration which require employers to include birth control in their health insurance plans. Under the new rules, employers can simply self-exempt, citing religious or moral objections, and tell their workers that their birth control is no longer part of their health-insurance coverage.

Those employers are not required to tell the government either, according to PBS NewsHour correspondent Lisa Desjardins. They need to notify the insurers, and can send an optional note to the government.

The new rules fulfill a key campaign promise the Trump administration made to social conservatives, who have continually voiced dissent with the Obama-era federal requirement and challenged it in court. House Speaker Paul Ryan (R-WI) said it was a “landmark day for religious liberty” and would ensure that people “can freely live out their religious convictions and moral beliefs.”

But the rules are deeply damaging to women’s reproductive health, and reflect a wider trend of the Trump administration attempting to dismantle women’s access to health care by opposing abortion rights and cutting grants aimed at tackling teen pregnancy.

“They like to talk about these policies in isolation,” Adam Sonfield of the Guttmacher Institute told ThinkProgress’ Amanda Gomez. “They are not just trying to undermine contraceptive coverage. They’ve tried to cut Title IX funding, Planned Parenthood funding… you have to see it as a coordinated campaign.”

The ACLU, along with the Center for Reproductive Rights, Americans United for Separation of Church, and the state of California, have all said they intend to sue the Trump administration for denying birth control to women.

Conservatives have long insisted that the birth control rollbacks are designed to protect the religious liberty of groups who believe providing contraceptives would violate their moral beliefs. However, data provided by the Center for American Progress to Vox in August showed that the majority of the companies that had applied for and received exceptions were for-profit corporations. They included companies that worked in human resources, industrial machinery, and wholesale trade. (ThinkProgress is an editorially independent news site housed within CAP.)

According to Jamila Taylor, a senior fellow at CAP, the rules suggested Trump’s rollbacks “will open up the floodgates for nearly anyone to force women to pay out of pocket or navigate hurdles to obtaining additional cost for contraception… and simply chalk it up to moral opposition.”

About the Author: Luke Barnes is a reporter at ThinkProgress. He previously worked at MailOnline in the U.K., where he was sent to cover Belfast, Northern Ireland and Glasgow, Scotland. He graduated in 2015 from Columbia University with a degree in Political Science. He has also interned at Talking Points Memo, the Santa Cruz Sentinel and Narratively.

Divide and Conquer: Employers' Attempts to Prohibit Joint Legal Action Will be Tested in Court

Thursday, September 28th, 2017
On Monday, October 2, the U.S. Supreme Court will hear arguments in the most consequential labor law cases to come to the Court in a generation, which could fundamentally alter the balance of power between millions of American workers and the people who employ them.

So why are so few people paying attention?

At first glance, the cases may seem dry and complex, as they involve 80-year-old laws that most people have never heard of. But the issue at stake is actually quite simple: should your employer be able to force you to give up your right to join your coworkers in a lawsuit challenging working conditions as a condition of getting or keeping a job?

The federal courts of appeals for the Seventh and Ninth Circuits say the answer should be no. They point to the National Labor Relations Act (NLRA), a law passed by Congress in 1935 to end “industrial strife and unrest” and restore “equality of bargaining power between employers and employees.” The NLRA gives workers the right to join unions and to “engage in other concerted activities” for “mutual aid or protection,” and it makes it illegal for employers to “interfere with, restrain or coerce employees in the exercise” of those rights.

But in recent years, more and more employers are requiring their employees to agree, as a condition of working for that employer, that they must resolve any disputes that might come up in the future in a private arbitration proceeding, and not in court. Many of these so-called arbitration agreements also prohibit the arbitrator from hearing more than one employee’s claim at a time—in other words, they ban employees from taking legal action together, either in court or in arbitration. A recent study from the Economic Policy Institute found that 23.1% of private sector, non-union workers, or 24.7 million Americans, work for employers that impose such a concerted legal action ban.

Sheila Hobson was one such employee. She worked at a gas station in Calera, Alabama that was run by Murphy Oil. When she applied to work there, she had to sign an agreement stating that she would not participate in a class or collective action in court, “in arbitration or in any other forum” and that her claim could not be combined “with any other person or entity’s claim.” Two years later, she joined with three coworkers to file a lawsuit under the Fair Labor Standards Act. She and her coworkers claimed that they were routinely asked to clean the station, stock shelves, check prices at competitors’ stations and perform other tasks while “off the clock” and without pay. Murphy Oil moved to dismiss the lawsuit, pointing to their arbitration agreement and arguing that each employee had to pursue their claims individually.

The National Labor Relations Board, a federal agency created by Congress to enforce the NLRA, stepped in to defend Ms. Hobson and her coworkers. The NLRB ruled that Murphy Oil’s arbitration agreement interfered with its employees’ right to engage in concerted activity for their mutual aid or protection in violation of the NLRA. But the Court of Appeals for the Fifth Circuit agreed with Murphy Oil, leading to this showdown before the Supreme Court.

The crux of Murphy Oil’s position, which is shared by the employers in the cases out of the Seventh and Ninth Circuits that are also being argued on Monday, is that the employers’ bans have to be enforced because of the Federal Arbitration Act. This law, passed back in 1925 at the request of businesses who wanted to be able to resolve commercial disputes privately under specialized rules, says that agreements to arbitrate should be treated the same as any other contracts. And because their concerted action bans are found in arbitration agreements, the employers argue, the FAA requires their enforcement.

But the FAA includes a “saving clause” that allows arbitration agreements to be invalidated on any “grounds as exist at law or in equity for the revocation of any contract.” One such ground for revoking a contract is that it is illegal, and the Seventh and Ninth Circuit opinions pointed out that a contract that interferes with employees’ rights under the NLRA is illegal and thus unenforceable under the FAA’s saving clause. Moreover, as the NLRB explained, the Supreme Court has repeatedly held that the FAA cannot take away anyone’s substantive rights; it merely allows those rights to be pursued in arbitration rather than in court. But the concerted action bans in these cases, and those like them that other employers force employees to sign, do take away the very substantive right to join with coworkers that the NLRA guarantees. By preventing workers from banding together in court or in arbitration, these agreements deprive employees of the ability to pursue their concerted action rights in any forum whatsoever.

Given the high stakes these cases present, both employer and employee positions have garnered a large number of friend-of-the-court briefs before the Supreme Court. The Chamber of Commerce has weighed in on the employers’ side, as have other groups representing industry and the defense bar. The Justice Department, which had originally represented the NLRB, switched sides with the change in presidential administration and is also supporting the employers.

Meanwhile a group of ten labor unions pointed out that given the economic power employers wield over employees who need jobs to support their families, “few workers are willing to put a target on their back by bringing legal claims against their employer on an individual basis.” The NAACP Legal Defense Fund and more than 30 other civil rights groups, including Public Justice, explained how joint legal action has unearthed patterns of discrimination and brought about systemic changes in workplace policies that individual cases could never have achieved, listing 118 concerted legal actions challenging discrimination based on race, gender, age, disability and sexual orientation that would not have been possible under concerted action bans like Murphy Oil’s. The National Academy of Arbitrators disputed the employers’ premise that joint or collective claims can’t proceed in the more streamlined forum of arbitration, noting that labor arbitrators have been resolving group claims in unionized workplaces for decades and that requiring each case against the same employer – with the same evidence – to proceed separately would actually be far less efficient and more costly. Finally, the Main Street Alliance argued that concerted action bans reduce enforcement of minimum wage and employment discrimination laws, which disadvantages responsible businesses relative to corporations that mistreat employees and break the law.

With nearly a quarter of U.S. non-union employees already subject to concerted action bans, a green light from the Supreme Court telling employers to continue this practice will no doubt cause that figure to soar. But Public Justice is hopeful that the Court will follow the plain meaning of the NLRA and find these bans to be the illegal acts that they are—attempts to coerce employees into giving up their right to join forces to increase their bargaining power. That right applies equally whether employees want to join a union, join a lawsuit or join a boycott or picket line. The Supreme Court should stop this employer power grab and reaffirm the right to concerted activity, which is just as important for workers now as it was when Congress established it over 80 years ago.

This article was originally published at Public Justice on September 28, 2017. Reprinted with permission.

About the Author: Karla Gilbride joined Public Justice in October 2014 as a Cartwright-Baron staff attorney. Her work focuses on fighting mandatory arbitration provisions imposed on consumers and workers to prevent them from holding corporations accountable for their wrongdoing in court.

Supreme Court opens its new term with a direct attack on workers’ rights

Monday, September 25th, 2017

The Supreme Court returns next Monday from its summer vacation for the first full term where Neil Gorsuch will occupy a seat at the far end of the Court’s bench. And the Court will open this term with a trio of cases that are very likely to immunize many employers from consequences for their illegal actions.

The three cases — National Labor Relations Board v. Murphy Oil USAErnst & Young LLP v. Morris, and Epic Systems v. Lewis — all involve employment contracts cutting off employee’s rights to sue their employer for legal violations.

In at least one case, employees were required to sign the contract as a condition of beginning work. In another, employees were forced to give up their rights as a condition of keeping their job. These contracts contained two restrictions on the employees: 1) a “forced arbitration” provision, which requires any legal disputes between the employer and the employee to be resolved in a privatized arbitration system; and 2) a provision prohibiting employees from bringing class actions or other collective suits against their employers.

Requiring private arbitration favors employers over employees. As an Economic Policy Institute study determined, employees are less likely to prevail before an arbitrator than before a court, and they typically receive less money from an arbitrator when they do prevail.

Banning class action suits, meanwhile, effectively permits employers to violate the law with impunity, so long as they do not do too much harm to any individual employee.

If an employer cheats one employee out of $300,000 worth of wages, for example, that employee is likely to be able to find a lawyer who will take his case on a contingency basis — meaning that the lawyer gets a percentage of what the employee collects from the employer if they win. If the same employer cheats 10,000 employees out of $30 each, however, no lawyer is going to represent any one of these workers on a contingency basis. Plus, few employees are likely to bother with a $30 suit. It’s too much hassle, and too expensive to hire a lawyer who won’t work on contingency. The solution to this problem is a class action suit, which allows the 10,000 employees to join together in a single case litigated by a single legal team.

Banning such class actions effectively leaves these employees without remedy. As one federal judge explained, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

The employer’s claim that they can combine a forced arbitration clause with a class action ban arises out of two previous Supreme Court cases that took an extraordinarily creative view of a nearly 100-year-old law.

In 1925, Congress enacted the Federal Arbitration Act to allow, as Justice Ruth Bader Ginsburg once explained, “merchants with relatively equal bargaining power” to agree to resolve their disputes through arbitration. Beginning in the 1980s, however, the Court started to read this law expansively to permit forced arbitration between businesses and relatively powerless consumers and employees.

Then, the Court got even more aggressive. By its own terms, the Federal Arbitration Act exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in its 5-4 decision in Circuit City v. Adams, the Supreme Court held that the Act applies to most workers engaged in foreign or interstate commerce. Thus, forced arbitration clauses in employment contracts were given special protected status, even though the federal law governing these clauses says otherwise.

Similarly, Justice Antonin Scalia wrote for a 5-4 Court in AT&T Mobility v. Concepcion that the Federal Arbitration Act has penumbras, formed by emanations from its guarantees that give it life and substance. The right of businesses to insert class action bans, Scalia claimed, is one of these penumbras contained in the 1925 law. And so businesses gained the power to add no class action clauses to their forced arbitration agreements, even if a ban on class actions violates state law — and despite the fact that the Federal Arbitration Act says nothing about class actions.

Nevertheless, the employees in Murphy Oil and its companion cases hope that another provision of law will protect them from signing away their right to join a class action.

A provision of the National Labor Relations Act (NLRA) provides that “employees shall 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.” Several lower courts have held that an employee’s right to engage in “concerted activities” protects their right to join class actions, and they cite multiple previous Supreme Court decisions which lend credibility to this claim.

In a world governed by the text of the law, employees would have a strong case that they cannot be forced to give up their right to bring class action litigation. But we live in a world governed by Circuit City and Concepcion — both of which demonstrate the Supreme Court’s willingness to take liberties with the law in forced arbitration cases.

This article was originally published at ThinkProgress on September 25, 2017. Reprinted with permission.
About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

How the Canadians Are Trying to Use NAFTA to Raise Your Wage

Tuesday, September 19th, 2017

Finally, after nearly a quarter of a century, the North American Free Trade Agreement (NAFTA) is being renegotiated. This is a good thing. NAFTA is called a “trade deal,” but it’s mostly a collection of rules that give corporations more power over the three economies of North America. It gives companies tools to undermine laws and rules that protect America’s working families. It increased threats by U.S. employers to close workplaces and move to Mexico. And once the companies got there, NAFTA provided strict rules for them, but only vague guidelines to protect working people’s rights and freedoms.

NAFTA negotiations have not progressed very far, and it is too early to say whether the effort will bring a New Economic Deal to working people or simply more crony capitalism. But there was some fantastic, surprising, excellent news recently.

The Canadian negotiating team did something big: They told the U.S. negotiators that U.S. laws that interfere with people’s freedom to negotiate on the job are dragging down standards for Canada and need to be abolished. Guess what? Canada is right.

These laws, known as “right to work,” are another example of the wealthiest 1% rigging the rules to weaken the freedom of people joining together in union and negotiating with employers for better pay, benefits and conditions at work. Not surprisingly, states with these freedom-crushing laws are less safe and have lower wages, dragging down workplace standards for those in other states, and apparently in Canada, too.

Canada gets the obvious: These laws take away working people’s freedom to join together and raise their wages. Canada is pushing the United States to be fairer to working people, just as the U.S. is pushing Mexico to be fairer to its working people. Will the U.S. negotiators see the light and agree to this proposal in NAFTA? We certainly hope so. It will tell us a lot about who the president stands with: Corporate CEOs or working families?

Learn more about laws that take away working people’s freedom.

This blog was originally published at AFL-CIO.org on September 19, 2017. Reprinted with permission. 
About the Author: Celeste Drake is the trade and globalization policy specialist at the AFL-CIO, where she advocates for reforms to U.S. trade policy to create shared gains from trade on behalf of working families. She has testified before the Senate Foreign Relations Committee, various House subcommittees and the U.S. International Trade Commission, and made presentations before the European Union’s Economic and Social Committee.

Employers: Be Careful What You Wish For - Your Motion to Compel Arbitration Can Lead to Expensive, Class-Wide Arbitration

Thursday, December 27th, 2012

In the wake of ATT Mobility v. Concepcion and Stolt-Nielsen v. AnimalFeeds,* many employers have sought to enact new arbitration agreements or to enforce arbitration provisions in older agreements to eliminate their employees’ ability to come together when seeking to vindicate their rights to enforce statutory protections for workers. Employers should be careful what they wish for, in seeking to compel arbitration. They may indeed wind up in arbitration – but unable to strike class allegations, and required to pay the full and exorbitant costs of class-wide arbitration. 

In a case on which Bryan Schwartz Law serves as local counsel for Richard J. Burch of Bruckner Burch, in Houston, Texas, the employer is now feeling the danger of a Stolt-Nielsen-based strategy seeking to compel individual arbitration in a putative, wage-hour class action. In the Laughlin v. VMWare case, in which VMWare employees assert they were misclassified as exempt employees and denied overtime and other compensation to which they were entitled, the company moved to compel arbitration based on an agreement which did not specifically provide for class-wide arbitration. 

Judge Edward Davila of the Northern District of California struck some of the more offensive provisions of the arbitration agreement under Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, such as a provision which would have required Plaintiff to share the costs of arbitration. However, Judge Davila found these unlawful provisions severable (i.e., refused to kill the whole arbitration agreement). Perhaps most importantly, though, Judge Davila referred to the arbitrator the decision on the Stolt-Nielsen argument – namely, as argued by VMWare, the notion that class-wide arbitration cannot proceed where the parties’ arbitration agreement did not expressly consent to class arbitration. His initial decision from early 2012 is available here: 

http://www.bryanschwartzlaw.com/VMWare.pdf

In arbitration, AAA arbitrator LaMothe then rejected the employer’s Stolt-Nielsen motion to strike class allegations, notwithstanding the fact that the agreement did not expressly give permission to bring class allegations, finding the parties’ agreement intended to encompass all claims by Plaintiff Laughlin, including her class claims. The AAA order is available here: 

http://www.bryanschwartzlaw.com/Laughlin.pdf

In the last 18 months, numerous other arbitrators from JAMS, AAA, and other nationwide arbitration services have likewise denied motions to strike class allegations, employing similar reasoning. 

On review, Judge Davila confirmed the arbitrator’s partial final clause construction award allowing class allegations to proceed, meaning – in light of all the foregoing – that VMWare will now be forced to arbitrate a putative class action, and will be forced to bear all of the costs of doing so: 

http://www.bryanschwartzlaw.com/VMWare-12-20-12.pdf

Be careful what you wish for, employers. You may find that sometimes, allowing employees their day in court is better than the alternative. 

DISCLAIMER: Nothing in this article is intended to form an attorney-client relationship with the reader. You must have a signed representation agreement with the firm to be a client. 

*See our numerous prior blog posts relating to the subject of arbitration class waivers in light of Concepcion andStolt-Nielsen, including: http://bryanschwartzlaw.blogspot.com/2012/09/california-supreme-court-grants-review.html

http://bryanschwartzlaw.blogspot.com/2012/09/wage-and-hour-class-actions-sky-is.html;

http://bryanschwartzlaw.blogspot.com/2012/01/landmark-decision-by-national-labor.html

http://bryanschwartzlaw.blogspot.com/2011/05/civil-rights-lawyer-and-employee.html.

This post was originally posted on December 26, 2012 on Bryan Schwartz Law. Reprinted with Permission.

About the Author: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

As New Jobs Return, Employers Slash Wages

Wednesday, December 26th, 2012
New data has shown that while a majority of jobs eliminated during the downturn were in what we describe as the middle range of wages, the great majority of jobs added as the economy improves were low paying jobs, reported Katherine Rampell in the business section of the New York Times on Friday, August 31, 2012. This was documented in a study done by the National Employment Law Project.
 The study by Annette Bernhardt examined 366 occupations followed by the Labor Department. Bernhardt separated them into three equal groups by wages, with each representing a third of American employment in 2008.
     The middle third consisted of jobs like construction, manufacturing, and information. These jobs paid median hourly wages of $13.84 to $21.13. Over 60% of these jobs were lost during the recession. When the middle third jobs returned, they represented only 22% of total employment growth.
      In the category of higher wage occupations, those that had a median wage of $21.14 to $54.55 reflected only 19% of job losses. However, when growth in the economy began, only 20% of new jobs were the result of the upturn. This was only a 1% increase which doesn’t even cover new entrants into the labor force.
     Low wage jobs with median hourly wages of $7.69 to $13.83 accounted for 21% of job losses during the downturn. The startling fact is that low wage jobs now constitute 58% of all job growth. The jobs with the fastest growth were retail sales at a median wage of $10.97 per hour. At this salary, workers would be eligible for food stamps.
      Each category has grown by more than 300,000 workers since June 2009. Many of these new paying jobs were taken by recent high school and college graduates who were previously unemployed. Others were taken by older workers who formerly had jobs that paid much more, who were desperate.
     Mid-wage and middle class jobs have been disappearing at a rapid rate. Some of this is due to automation, but the bulk of the job loss is the result of employers taking millions of jobs overseas to low wage paying countries.
     At the same time, corporations and their Republican robots are passing so called “Right to Work” legislation which further erodes the wage structure. The labor movement, the trade unions, and their progressive allies are the only institutions that can bring back middle class livable wages.
This post was originally posted on Union Review on December 19, 2012. Reprinted with Permission.
 
About the Author: Seymour Slavin is an Independent Nonprofit Organization Management Professional at Union Review.
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