Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘May Day’

Want To Speak Out About Politics at Work? Here Are 3 Things You Need to Know.

Tuesday, May 16th, 2017

In the past several months, there’s been a noted uptick in political speech at work. That speech has often made national news, from Sally Yates’ dismissal as interim attorney general to IBM workers organizing against their employer’s support of Donald Trump. In the early days of the Trump administration, the New York Taxi Workers Alliance’s strike against the Muslim ban at John F. Kennedy International Airport stood out as an impressive act of resistance and solidarity. And even before Trump’s election, Colin Kaepernick, then a quarterback for the San Francisco 49ers, sparked a national discussion when he refused to stand during the national anthem in protest of racism against African-Americans and other people of color.

Protests against the administration are building quickly, with diverse groups organizing mass protests against the administration’s policies. This month, on May Day—otherwise known as International Workers’ Day—thousands of workers across the country took to the streets to challenge Trump’s draconian and unconstitutional immigration policies. In all likelihood, political activity at work will only increase throughout the Trump administration, all of which begs the question: How protected are workers who talk politics on the job?

As it turns out, not very, at least legally. Though more than 40 percent of participants in a 2014 YouGov poll believed that the First Amendment protected them from retaliation for their workplace political speech, the truth is that workers have, at best, a patchwork of rights to talk politics at work.

Most private sector workers have no Constitutional protections to engage in political speech at work. However, they do have rights as workers. (Government workers have some limited First Amendment rights because the First Amendment applies to government action, but those rights aren’t always consistently defined.)

Though it can be difficult to navigate the maze of laws that regulates employment, there are some simple things to keep in mind that can help private sector employees ensure they have maximum protection at work. These tips are not foolproof ways to protect your job, but they provide some cover in the face of the risks and challenges ahead. Of course, you’re safest keeping your protests outside of work, but building the resistance against Trump will require shop floor leaders to be vocal and visible. While speaking out at work is inherently risky, the rewards measured in collective strength and tangible gains cannot be overestimated.

Step 1: Bring a buddy

The National Labor Relations Act (NLRA), the main law governing relations between workers and employers in the private sector, is unique: It mostly protects groups, not individuals. This means that whenever you stand up to improve the conditions at your workplace with at least one other worker, you are engaging in “protected concerted activity” under the NLRA, and you can’t lawfully be fired or disciplined for that activity. Solidarity at work is protected under federal law. This protection applies to regular workplace complaints and grievances—for instance, joining with your coworkers to form a union or ask for a wage increase—but can also apply to political activity.

Usually, even talking to coworkers about your problems at work is “protected concerted activity.” The National Labor Relations Board (NLRB) recently broadened the meaning of the term in a 2014 case. In that case, the NLRB held that a worker who talked to her coworkers about serving as witnesses in her individual sexual harassment complaint was protected under the NLRA because she was enlisting coworkers in her aid. This suggests that a worker can invoke the protections of the NLRA just by talking with coworkers.

It’s always a good idea to act with at least one other coworker. The best defense is building strong ties with coworkers and the community. The more the boss fears pushback, the less likely he is to retaliate. At the very least, make sure to talk to a coworker before engaging in any action at work, political or otherwise, to bring that action under the NLRA’s protection. But keep in mind that not all political protest is protected—as Step 2 explains.

Step 2: If you’re talking or protesting politics, find ways to tie your protest to issues your employer can control

If you decide to engage in political activity at work, the most important action you can take to protect yourself and your coworkers is to tie your speech or protest to an “employment related concern.” With some limited exceptions, the NLRA protects you from discipline for discussing anything having to do with your pay, occupational safety, the policies at your job, and other terms and conditions of employment with coworkers and third parties, whether the news media or a government agency. In a famous labor law case from 1962, NLRB v. Washington Aluminum, the Supreme Court found that labor law protected a group of workers who spontaneously walked off the job because the shop was too cold to work, though there was a rule against leaving work without the supervisor’s permission and the employees didn’t plan or know they were engaging in a workplace action.

Problems that your employer can’t affect or control are not employment related. For example, in 2006, hundreds of workers were terminated for walking off the job to join massive protests against anti-immigrant legislation proposed in Congress. In response to the terminations, the NLRB came up with some guidelines for political activity. While the protests were found to have been done for “mutual aid and protection”—workers standing together in solidarity—walking off the job against employer rules was unprotected, since the employers could not control immigration policy.

Sometimes an employer does have power over a government policy—for instance, if the employer is actively involved in lobbying over that policy, like in a recent case where taxi drivers protested against their employer, a Las Vegas cab company, for lobbying for more medallions, which would put more drivers on the road and reduce their pay. Still, the takeaway is that you should always try to make sure your protest is about a tangible workplace policy. For instance, if you want to protest the Trump administration’s immigration policies, you could center your protest around a demand that the employer not conduct voluntary I-9 audits.

One last thing to remember is that if an employer has a rule that limits political speech at work, it has to be neutral on its face and neutrally applied. If you are fired for violating an employer attendance policy to attend a rally against Trump’s immigration policies, but another coworker who also violated the attendance policy to attend a Trump rally is unscathed, then the boss has violated the law by failing to apply work rules neutrally and you should contact an attorney or the NLRB to report the violation.

Step 3: Build solidarity at work and in the community

Nothing protects you more than the support and solidarity of your coworkers and community. Collective action is a time-honored and battle-tested tactic. The more people support you, the more the boss will be afraid to retaliate against you. In the Fight for $15 campaign, organizers perfected the art of the “walk back.” After one of their now famous strike days, community members, including clergy and local politicians, would walk striking worker back to fast food restaurants in a show of community power. Build relationships at work and in your community to prepare for the fight ahead. Nothing is stronger than people power.

This article originally appeared at Inthesetimes.com on May 15, 2017. Reprinted with permission.

About the Authors: Leo Gertner is a labor lawyer in Washington, D.C., who previously worked as a grievance representative for janitors in Boston. Sam Wheeler is a Pennsylvania labor lawyer who has previously worked in electoral politics and in the legal departments of several national unions.

Brooklyn Teachers Strike a Blow Against Excessive Testing with May Day Boycott

Monday, May 12th, 2014

sarah jaffeOn May Day 2014, a group of teachers at the International High School at Prospect Heights (IHSPH) in Brooklyn stood outside their school building and informed gathered reporters that they would not be administering the New York City English Language Arts (ELA) Performance Assessment Exam scheduled to take place that day. The test, which is part of a new teacher evaluation system imposed by the state last year, exists solely to rate teacher performance; unlike, for example the Regents Exam, which dates back to 1866 and determines whether students graduate. Thirty people—nearly all of the teachers and staff at the small public school—signed a statement declaring they would not participate.

The date was a coincidence—May Day, the internationally recognized workers’ day, happened to be the day the test was scheduled—but it could not have been better for the teachers’ action. Amid growing unrest among teachers, parents and students over high-stakes testing and the new Common Core educational standards, these teachers’ action is another step in challenging what new Massachusetts Teachers Association President Barbara Madeloni (whose recent victory I cover in a forthcoming piece) calls “predatory education reform,” driven by private companies that aim to run schools like corporations and pocket the profits.

“This is taking back the whole conversation around education,” Rosie Frascella, a 12th grade English teacher at IHSPH, tells In These Times. That conversation has been dominated by heated rhetoric from “reformers” and anti-union elected officials about “bad” or “lazy” teachers, but Frascella and her colleagues challenged that idea by putting themselves on the line to do what they believed was right. “I’d rather take a zero, you can fail me in my evaluations but you are not going to hurt my students. You can say I’m a bad teacher but I’m standing up for my students and what I know is right for them.”

After their press conference, the teachers proceeded into the building, where, according to Emily Giles, who teaches ninth- and 10th-grade science at IHSPH, they taught class as they would have any other day. Although 50 percent of the students had already been opted out of taking the test by their parents, Giles says administrators still attempted to give the test to a small handful—with little success.

“By that point, kids got wind of the fact that other kids didn’t have to take it. There were two rooms of testing happening; one room was empty within half an hour,” she says. “Kids just went in, put their name on the test and walked out.”

Giles points out that the abandoned testing gave teachers the chance to do just that—teach. “The school was just functioning, like it wasn’t even happening, which is how it should feel. When kids finish or opt themselves out, they go back to an educational setting where they’re actually using their time to do something meaningful,” she says.

A crying shame

The ELA Performance Assessment Exam has provoked student, teacher and parent anger from its first appearance in New York City schools this past October. According to Frascella, students were “traumatized” by the test, which requires them to read two short texts and write an essay in English. That’s not so horrifying for native English speakers, but the students at IHSPH, like other International schools across New York City, are almost all English language learners. To attend the International school, a student has to have lived in the United States for four years or less; according to Frascella, students from more than 30 different countries who speak more than 20 languages are currently enrolled at IHSPH. The school works on a collaborative model—Frascella explains that new students are partnered with an older student who speaks their language to help them translate and make it through the day.

But there’s no collaboration allowed on standardized tests. Instead, Frascella says, confronted with material they couldn’t read (the tests are written at a ninth- and 10th-grade reading level), students put their heads down. Some cried.

“These exams, overall, what they do is they hurt our community,” she says. “They stress our students out, they make them cry. They make them get upset in class because they feel like failures, even though they work so hard.”

Students at IHSPH complete portfolios in a variety of subjects on which they are graded; like other English language learners, they have to take the New York State English as a Second Language Achievement Test. And like all other New York public school students, they also have to pass Regents Exams. That’s already, teachers argue, far too much testing. In the letter that the IHSPH teachers sent to Schools Chancellor Carmen Fariña, they ask her to remove this test and replace it with an assessment that was created by educators.

When the teachers realized that it was coming time for the ELA Performance Assessment Exam to be administered again (it is given twice a year), they began talking amongst themselves about how to handle it. Many parents, fueled by their children’s bad experiences with the fall test, chose to opt their students out entirely. One parent, Teresa Edwards-Lasose, said, “The test is meaningless. [My child] doesn’t read and write enough English yet to do the test and it doesn’t count for his grades. Why should he take it?”

Chancellor Fariña told principals that they had to respect the rights of parents to opt out, as nearly 30,000 parents have across the state. But the teachers felt they had to do more.

For Giles, the testing battle is “a clear moment where the rights and concerns of parents and teachers, everything intersects, we agree with each other, we’re fighting for the same thing.”

As teachers at a small International school, she says, IHSPH teachers occupy a somewhat privileged position—though their students are uniquely harmed by the exam, they have a tight-knit staff and it’s easier to organize. “That means that we have a responsibility to be the people who are willing to stick our necks out a little bit,” she says.

Originally, just four instructors were in favor of not giving the test. The more they talked, though, the more people joined in, and eventually they drafted their letter to the chancellor. They discussed the risks they would be taking—that their evaluations would suffer, that the principal and the Department of Education might discipline them–and decided that it was important to go forward with the refusal.

“It’s not just about this assessment,” Frascella says. “It’s about the larger vision against high-stakes testing. It was an opportunity to really have our voices heard in the hopes that the new administration would listen to us.”

At the press conference on May Day morning, Giles says, she felt good. Then during the school day, things felt even better. Support poured in at their website, where parents and educators from around the country left messages. Someone even sent a fruit basket to the school.

Support wasn’t universal, though. The United Federation of Teachers, the union to which the IHSPH teachers belong, issued a statement saying that while it believes “that our schools have been the victims of a testing culture that has focused far too much attention on test prep and too little on strategies that will actually lead to student learning,” that “[T]his protest is not a union-sponsored event.”

Giles, who along with Frascella and two other teachers at IHSPH, belongs to a reform caucus within the union called the Movement of Rank-and-file Educators (MORE), was disappointed in this response. Still, she sees their action as an important rank-and-file organizing project that drew the staff closer together.  And as Frascella notes, “In this movement to save our schools we need to create as many opportunities for teachers, for parents, and students to feel that their voice actually matters and that they actually have power.”

The bigger picture

This year’s struggle over the ELA Performance Assessment also takes place against the backdrop of a new contract between the UFT and New York City that 100,000 teachers are set to vote on soon. Passed through the UFT’s delegate assembly on May 7, the new contract spans nine years. Five of those are retroactive, covering the years for which the union has had no contract with the city. Though the contract includes retroactive pay raises, they’re spread out across that nine-year period—which comes out to about 2 percent a year.

More importantly, according to Frascella and Giles, the contract doesn’t appear to change the teacher evaluation process away from the heavy focus on testing. MORE has begun a “Vote No” campaign on the contract; in their press release, teacher, chapter leader and MORE member Kit Wainer writes, “UFT members never got to vote on ‘Advance’ (the new teacher evaluation system) or the resulting high stakes tests, but we will all vote on our contract this year, so it is important that each UFT member makes an informed vote. The contract is not just about our ‘bread-and-butter’ issues. It is a legal document that dictates working conditions in our schools.”

Teachers at IHSPH already use what they call the “solidarity method” for the 20 percent of teacher evaluation that is done at the school level (another 20 percent comes automatically from state tests, and the rest from observations by administrators)—they are all graded on the Regents exams for all of the students, meaning that each teacher at the school receives the same ranking. “My community of educators, we don’t want to be competitive,” Frascella says. “As a school we tried to align our assessments to be as equal as possible so that our scores would be as close as possible because we didn’t want to be divided and ranked.”

Fariña and the man who appointed her, new mayor Bill de Blasio, have both expressed reservations about high-stakes testing. De Blasio told this reporter before his election that “We should use the standardized tests to the most minimal level possible.” Yet as with his attempt to push back on charter schools, he runs into the issue of the state requirements, and Governor Cuomo has shown himself to be firmly on the side of the predatory reform crowd.

Still, for a union and a city Department of Education who ostensibly agree on important points, that the proposed contract does little to change a test-based evaluation system is frustrating.

For now, Giles says, the IHSPH teachers have not been disciplined and are looking forward to expanding on the momentum they’ve built. She expects the test refusal to be discussed at the next Parent Teacher Association meeting, and wants to talk about what they can do next fall when the test comes around again. She’s hoping that the other 15 International schools across New York will take action as well; teachers at IHSPH had been in contact with teachers at other Internationals before the action, though none of them managed to coordinate refusal. Other possibilities include putting out a petition against the test that would not obligate teachers to refuse to give it, in hopes that a larger number would sign on.

The teachers at IHSPH took the step of refusing the test in a climate where they were warned against alienating “allies” like Fariña and de Blasio, but they went forward anyway. Even so, the circumstances are very different now than they were under Bloomberg. “I think the question is, how do we work together?” Frascella says. “We may not have the money that the Right has, or the reformers or privateers have, but we have very good organizers, we have very smart people, and we have a lot of people on our side, so how do we use that both to hold de Blasio accountable and to support him in keeping the promises that he makes?”

“Actions, collective actions, they hold people accountable. And they inform the public,” she adds.

This article was originally printed on Working In These Times on May 12, 2014.  Reprinted with permission.

About the Author: Sarah Jaffe is a staff writer at In These Times and the co-host of Dissent magazine’s Belabored podcast. Her writings on labor, social movements, gender, media, and student debt have been published in The Atlantic, The Nation, The American Prospect, AlterNet, and many other publications, and she is a regular commentator for radio and television.

Will Public Workers and Immigrants March Together on May Day?

Friday, April 29th, 2011

david baconOne sign carried in almost every May Day march of the last few years says it all: “We are Workers, not Criminals!” Often it was held in the calloused hands of men and women who looked as though they’d just come from work in a factory, cleaning an office building, or picking grapes.

The sign stated an obvious truth. Millions of people have come to the United States to work, not to break its laws. Some have come with visas, and others without them. But they are all contributors to the society they’ve found here.

This year, those marchers will be joined by the public workers we saw in the state capitol in Madison, whose message was the same: we all work, we all contribute to our communities and we all have the right to a job, a union and a decent life. Past May Day protests have responded to a wave of draconian proposals to criminalize immigration status, and work itself, for undocumented people. The defenders of these proposals have used a brutal logic: if people cannot legally work, they will leave.

But undocumented people are part of the communities they live in. They cannot simply go, nor should they. They seek the same goals of equality and opportunity that working people in the United States have historically fought to achieve.  In addition, for most immigrants, there are no jobs to return to in the countries from which they’ve come. The North American Free Trade Agreement alone deepened poverty in Mexico so greatly that, since it took effect, 6 million people came to the United States to work because they had no alternative.

Instead of recognizing this reality, the U.S. government has attempted to make holding a job a criminal act. Thousands of workers have already been fired, with many more to come. We have seen workers sent to prison for inventing a Social Security number just to get a job. Yet they stole nothing and the money they’ve paid into Social Security funds now subsidizes every Social Security pension or disability payment.

On May Day in 2007, immigrants and their supporters marched through the streets of Kennett Square, Pa., a small town where thousands of immigrant workers labor in sheds growing mushrooms. The march was organized by the Farm Worker Support Committee (CATA) and many workers came from the only union shed, Kaolin Farms.   (Photo copyright David Bacon)

On May Day in 2007, immigrants and their supporters marched through the streets of Kennett Square, Pa., a small town where thousands of immigrant workers labor in sheds growing mushrooms. The march was organized by the Farm Worker Support Committee (CATA) and many workers came from the only union shed, Kaolin Farms. (Photo copyright David Bacon)

Undocumented workers deserve legal status because of that labor—their inherent contribution to society. Past years’ marches have supported legalization for the 12 million undocumented people in the United States. In addition, immigrants, unions and community groups have called for repealing the law making work a crime, ending guest worker programs, and guaranteeing human rights in communities along the U.S./Mexico border.

The truth is that undocumented workers and public workers in Wisconsin have a lot in common. In this year’s May Day marches, they could all hold the same signs. With unemployment at almost 9%, all working families need the Federal government to set up jobs programs, like those Roosevelt pushed through Congress in the 1930s. If General Electric alone paid its fair share of taxes, and if the troops came home from Iraq and Afghanistan, we could put to work every person wanting a job. Our roads, schools, hospitals and communities would all benefit.

At the same time, immigrants and public workers need strong unions that can push wages up, and guarantee pensions for seniors and healthcare for the sick and disabled. A street cleaner whose job is outsourced, and an undocumented worker fired from a fast food restaurant both need protection for their right to work and support their families.

Instead, some states like Arizona, and now Georgia, have passed measures allowing police to stop any “foreign looking” person on the street, and question their immigration status. Arizona passed a law requiring employers to fire workers whose names are flagged by Social Security. In Mississippi an undocumented worker accused of holding a job can get jail time of 1-5 years, and fines of up to $10,000.

The states and politicians that go after immigrants are the same ones calling for firing public workers and eliminating their union rights. Now a teacher educating our children has no more secure future in her job than an immigrant cleaning an office building at night. The difference between their problems is just one of degree.

But going after workers has produced a huge popular response. We saw it in Madison in the capitol building. We saw it in the May Day marches when millions of immigrants walked peacefully through the streets. Working people are not asleep. Helped by networks like May Day United, they remember that this holiday itself was born in the fight for the 8-hour day in Chicago more than a century ago.

In those tumultuous events, immigrants and the native born saw they needed the same thing, and reached out to each other. This May Day, will we see them walking together in the streets again?

For information about where May Day marches are scheduled to take place this Sunday, visit the May Day United website.

About the Author: David Bacon is a writer, photographer and former union organizer. He is the author of Illegal People: How Globalization Creates Migration and Criminalizes Immigrants (2008), Communities Without Borders (2006), and The Children of NAFTA: Labor Wars on the US/Mexico Border (2004). His website is at dbacon.igc.org.

This blog originally appeared In These Times on April 28, 2011. Reprinted with Permission.

Remember, remember the fourth of May

Thursday, September 11th, 2008

Many people don’t think about Labor Day. They see it as another day off from work. It’s a day when the retail corporations offer incentives to come out and consume. Yet, even those who have an inkling of what Labor Day is and what it’s about don’t realize that this day masks the real defiance and spirit of the workers’ movement.

The Knights of Labor were the driving force behind making the Labor Day of September officially recognized. They were aided in this effort by President Grover Cleveland who sought to commemorate this day instead of another more historic day in May 4th in which many in the international labor movement sought to recognize in the May Day of May 1st.

It was the events that occurred in May 1886 that eventually brought about the eight-hour work day. Starting on May 1st of that year there were thousands of rallies organized in support of eight-hour workdays. The one rally that forever ingrained May Day in our collective memories was the one which occurred on May 4th in Haymarket Square in Chicago.

If there is one thing that is true about labor versus capital, it is the reality that nothing is ever won by labor without a fight. Working people often face violence, repression and hostility when trying to organize and wring concessions from corporations and sometimes government. It is as true then, in the late nineteenth century, as it is now in the early twenty first century. If we want to take back Labor Day on whatever day we celebrate it–we must show people that this truth of the struggle is far from being over.

It was then with this ever present reality that striking and locked out McCormick Harvesting Machine Corporation plant workers in Chicago—which were attacked by Pinkerton thugs and then cut down by the police in gunfire on May 3rd—had had enough and organized a protest to take place at Haymarket Square.

The rally that occurred in Haymarket Square that day was meant to be peaceful. Unfortunately it did not end that way. Someone threw a pipe bomb at the police which resulted in anarchy as gunshots filled the air. Many police officers and bystanders were injured mostly by friendly fire. In the end seven police men and four workers were killed.

Afterward it is the trial that ensued and the injustice that the rally’s organizers faced is what gave the Haymarket Affair its notoriety. Eight people were charged and seven were given death sentences, including August Spies, a leader and labor activist.

It is my opinion that this trial was also used to try and discredit the workers and their cause. Thankfully this did not happen and we can thank organized labor for the eight-hour workday (and five-day workweek) today.

Yes, we enjoy benefits that the labor movement of the past worked to get us, but there are new issues and needs that we must address and fight for. We need to start working to organize sectors of the new economy like IT and the service-based jobs. This work has already begun and hopefully it will prove successful. We also need to look to the new green-collar jobs that will come into being. We also shouldn’t give up entirely on manufacturing. As the cost of oil rises we will probably see a return of some manufacturing jobs to America. We have to also look to organize plants that are opened in the US by foreign corporations. We have to focus on affordable college education and ensuring that the workforce is educated for any new sectors of the economy that may become a reality. Last but not least, universal healthcare and affordable housing are issues that deeply concern working America and must continue to be focused on until working families get what they need.

I think that another thing we must also do is to start thinking of a global labor movement. Corporations have successfully globalized, but labor is still at the very beginning of doing this. If manufacturing jobs are going to leave the developed countries that doesn’t mean that workers in other countries should be allowed to be taken advantage of. We can work to organize these workers as well. Every few months I read of tens of thousands of workers in developing countries going out on strike. We need to work on forming global labor unions. To take back Labor Day and make it truly a holiday to celebrate for not only America’s workers but for workers everywhere, there are many things we must do. Probably the one thing we can do as a society is also recognize that we can’t continue a race to the bottom. We can’t put the bottom line above people. Profit maximization and the lowest possible prices for the consumer isn’t everything. If we have to pay a little more as consumers and earn a little less as corporations then maybe it’s not a bad thing if it ensures more people have jobs and a secure life.

About the Author: Jason Gooljar is a progressive liberal blogger currently employed in the progressive movement and living in the DC metro area. A native New Yorker, Jason first got involved with political and civic issues in 1998 during his senior year in high school. At the time he was an intern and learned about the workings of local government in Westchester County, NY. Since then, he has worked as a paid staffer on two state senate campaigns and one gubernatorial campaign in NY. He was also a member of the first class to be trained in online organizing by the DC-based non-profit the New Organizing Institute in the winter of 2006. Jason holds an Associates degree in Multimedia Development and Management. His future goals include going back to school to study political science or a public policy-related area. While Jason always had an interest in politics, it was witnessing the 2005 TWU Local 100 transit strike in NYC which really galvanized him to focus on labor issues. In addition to labor issues Jason’s other areas of focus when he’s blogging is corporate abuse and consumerism. You can find him online at www.jasongooljar.com, where this post is cross-posted.

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