Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘National Labor Relations Act’

The Lessons of the Triangle Shirtwaist Fire Are Still Relevant 107 Years Later

Monday, March 26th, 2018

On March 25, 1911, a fire broke out on the top floors of the Triangle Shirtwaist factory. Firefighters arrived at the scene, but their ladders weren’t tall enough to reach the impacted area. Trapped inside because the owners had locked the fire escape exit doors, workers jumped to their deaths. Thirty minutes later, the fire was over, and 146 of the 500 workers—mostly young women—were dead.

Many of us have read about the tragic Triangle fire in school textbooks. But the fire alone wasn’t what made the shirtwaist makers such a focal point for worker safety. In fact, workplace deaths weren’t uncommon at the time. It is estimated that more than 100 workers died every day on the job around 1911.

A week after the fire, Anne Morgan and Alva Belmont hosted a meeting at the Metropolitan Opera House to demand action on fire safety, and people of all backgrounds packed the hall. A few days later, more than 350,000 people participated in a funeral march for those lost at Triangle.

Three months later, responding to pressure from activists, New York’s governor signed a law creating the Factory Investigating Commission, which had unprecedented powers. The commission investigated nearly 2,000 factories in dozens of industries and, with the help of such workers’ rights advocates as Frances Perkins, enacted eight laws covering fire safety, factory inspections, and sanitation and employment rules for women and children. The following year, they pushed for 25 more laws—entirely revamping New York State’s labor protections and creating a state Department of Labor to enforce them. During the Roosevelt administration, Perkins and Robert Wagner (who chaired the commission) helped create the nation’s most sweeping worker protections through the New Deal, including the National Labor Relations Act.

The shirtwaist makers’ story inspired hundreds of activists across the state and the nation to push for fundamental reforms. And while there have been successes along the way, the problems that led to the Triangle fire are still present today. It was just five years ago, for instance, that the Rana Plaza collapse in Bangladesh killed more than 1,100 garment workers.

As worker health and safety continues to be a significant issue both in the United States and abroad, the AFL-CIO took a strong stand at our 2017 Convention, passing a resolution on worker safety:

The right to a safe job is a fundamental worker right and a core union value. Every worker should be able to go to work and return home safely at the end of the day.

Throughout our entire history, through organizing, bargaining, education, legislation and mobilization, working people and their unions have fought for safe and healthful working conditions to protect workers from injury, illnesses and death. We have made real progress, winning strong laws and protections that have made jobs safer and saved workers’ lives.

Over the years, our fight has gotten harder as employers’ opposition to workers’ rights and protections has grown, and attacks on unions have intensified. We haven’t backed down. Most recently, after decades-long struggles, joining with allies we won groundbreaking standards to protect workers from silica, beryllium and coal dust, and stronger protections for workers to report injuries and exercise other safety and health rights.

Now all these hard-won gains are threatened. President Trump and many Republicans in Congress have launched an aggressive assault on worker protections.

The worker protections under assault include:

  • Trump’s proposed fiscal year 2019 budget cuts funding for the Department of Labor by 21%, including a 40% cut in job training for low-income adults, youth, and dislocated workers and the elimination of the Labor Department’s employment program for older workers.
  • The budget also proposes to cut the Occupational Safety and Health Administration budget, eliminate OSHA’s worker training program and cut funding for coal mine enforcement, while proposing a 22% increase for the Office of Labor-Management Standards’ oversight of unions.
  • The budget also proposes to slash the National Institute for Occupational Safety and Health’s job safety research budget by 40%, to move NIOSH to the National Institutes of Health from the Centers for Disease Control and Prevention, and to remove the World Trade Center Health Program from NIOSH’s direction.
  • OSHA delayed the effective date of the final beryllium standard originally issued in January 2017. Then it delayed enforcement of the standard until May 11, 2018. In June 2017, OSHA proposed to weaken the beryllium rule as it applies to the construction and maritime industries.
  • OSHA delayed enforcement of the silica standard in construction, which in December was fully upheld by the U.S. Court of Appeals for the District of Columbia Circuit.
  • OSHA delayed the requirement for employers to electronically report summary injury and illness information to the agency set to go into effect on July 1, 2017, until December 31, 2017. OSHA has announced it intends to issue a proposal to revise or revoke some provisions of the rule.
  • OSHA withdrew its policy that gave nonunion workers the right to have a representative participate in OSHA enforcement inspections on their behalf.
  • The Mine Safety and Health Administration delayed the mine examination rule for metal and nonmetal mines from May 23, 2017, until Oct. 2, 2017, and then again until March 2, 2018. MSHA also proposed weakening changes to the rule, including delaying mine inspections until after work has begun, instead of before work commences.
  • In November 2017, MSHA announced it would revisit the 2014 Coal Dust standard to examine its effectiveness and whether it should be modified to be less burdensome on industry. This comes at the same time NIOSH reported 400 cases of advanced black lung found by three clinics in Kentucky.
  • OSHA withdrew over a dozen rules from the regulatory agenda, including standards on combustible dust, styrene, 1-bromopropane, noise in construction and an update of permissible exposure limits.
  • The agency also suspended work on critical OSHA standards on workplace violence, infectious diseases, process safety management and emergency preparedness.
  • MSHA withdrew rules on civil penalties and refuge alternatives in coal mines from the regulatory agenda and suspended work on new standards on silica and proximity detection systems for mobile mining equipment.

The Triangle Shirtwaist tragedy took place 107 years ago today. We have a long way to go to make sure that we prevent the next such tragedy and keep working people safe and healthy.

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.

D.R. Horton Rising: The Ninth Circuit Sides with the Seventh Circuit and the National Labor Relations Board on Class Action Waivers, in Morris v. Ernst & Young, LLP

Wednesday, September 7th, 2016
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Yesterday, the Ninth Circuit took sides in a major split within the U.S. Courts of Appeals over the enforceability of class arbitration waivers. In Morris v. Ernst & Young, LLP, No. 13-16599, Slip. Op. (9th Cir. Aug. 22, 2016), the Ninth Circuit held that employers violate Sections 7 and 8 of the National Labor Relations Act (“NLRA”) by requiring employees covered by the NLRA to waive, as a condition of their employment, participation in “concerted activities” such as class and collective actions. (Slip Op. at 1.)

By this holding, the Ninth Circuit joins the Seventh Circuit, which in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. May 26, 2016) adopted the National Labor Relations Board (“The Board”) position in D.R. Horton, Inc., 357 NLRB No. 184 (2012). Under this line of authority, the Federal Arbitration Act (“FAA”) does not mandate enforcement of a contract that waives the substantive federal right to engage in concerted action established in Section 7 of the NLRA. (Slip Op. at p. 18-19.) Bryan Schwartz Law blogged in detail about the Lewis v. Epic Systems Corp. decision, here.

In Morris, two employees filed a class and collective action alleging that their employer had misclassified workers as exempt and deprived them of overtime in violation of the Fair Labor Standards Act (“FLSA”) and California labor laws. As a condition of employment, the employees were required to sign contracts containing a “concerted action wavier” that obligated them (1) to pursue legal claims against their employer exclusively through arbitration and (2) to arbitrate individually in “separate proceedings.” Based on these agreements, the employer moved to compel the employees to arbitrate their claims individually. The U.S. District Court granted the employer’s motion. (Slip Op. at p. 4-5.)

The Ninth Circuit reversed, reviewing the decision to compel arbitration de novo. Chief Judge Sidney R. Thomas explained in the opinion:

This case turns on a well-established principal: employees have the right to pursue work-related legal claims together. 29 U.S.C. § 157; Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978). Concerted activity – the right of employees to act together – is the essential substantive right established by the NLRA. 29 U.S.C. § 157. Ernst & Young interfered with that right by requiring its employees to resolve all of their legal claims in “separate proceedings.” Accordingly the concerted action waiver violates the NLRA and cannot be enforced.

(Id. at p. 6.)

The Ninth Circuit explained that the FAA does not dictate a contrary result. (Id. at 14.) While the FAA creates a “federal policy favoring arbitration” clause enforcement, the Act contains a savings clause that prohibits enforcement of arbitration agreements that defeat substantive federal rights, including the right to engage in concerted activity under the NLRA. (Id. at 15, 26.) In Morris, employees’ waiver was illegal not because it required the employees to pursue their claims in arbitration, but rather, because they could not do so in concert. (Id. at p. 16.)

Other circuit courts have taken a contrary position, enforcing employers concerted action waivers under the FAA. See Cellular Sales of Missouri, LLC v. N.L.R.B., 824 F.3d 772, 776 (8th Cir. June 2, 2016); Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053-54 (8th Cir. 2013); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 361 (5th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013).

As more circuits choose sides on whether class action waivers in arbitration agreements are enforceable, Supreme Court review becomes an inevitability.

The High Court would also be wise to resolve a disagreement between the Ninth and Seventh Circuits regarding such waivers. In the Seventh Circuit, any “[c]ontracts that stipulate away employees’ Section 7 rights . . . are unenforceable.” Epic, 823 F.3d. at 1155. The Ninth Circuit precedent is narrower, making such contracts enforceable if employment is not conditioned on agreeing to the clause. (Slip. Op. 11, n. 4.) For example, if an employee has the opportunity to opt-out of a class action waiver and keep his or her job, but chooses not to, that waiver would be enforceable by the employer in the Ninth Circuit. (Id. (citing Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1076 (9th Cir. 2014))). The Seventh Circuit provides a clearer rule, one that better comports with the purposes of the NLRA, and one that the Supreme Court should adopt.

For now, workers in the Ninth and Seventh Circuits, as well as their advocates, should take note that employers cannot force employees to sign class action waivers as a condition of employment, because Epic and Morris tell us that the NLRA provides employees with the right to vindicate their employment rights collectively.

This blog appeared on Bryan Schwartz Law on August 23, 2016. Reprinted with permission.

Rachel Terp is an associate at Bryan Schwartz Law, where she focuses on employment discrimination, whistleblower, and wage and hour claims. Previously, Ms. Terp was a Bridge Fellow with the East Bay Community Law Center (EBCLC), where she specialized in consumer litigation.

 Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Mr. Schwartz and his firm have fought to prohibit discrimination, retaliation, and harassment obtained reasonable accommodation for disabled employees, vindicated whistleblowers’ rights and ensured that corporations pay workers all wages they are owed. Bryan Schwartz Law has successfully litigated individual and class action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers. Bryan Schwartz Law is also one of the few Bay Area-based law firms with extensive experience representing Federal employees in their unique Merit Systems Protection Board and Equal Employment Opportunity Commission complaints.

 

Are “Works Councils” Really Such a Good Idea for Workers and Unions?

Tuesday, December 16th, 2014

douglas williamsLabor may be at a turning point in this country. New campaigns have started to infuse fresh energy into a moribund and declining movement, and new models of collective action are being proposed in the course of these ongoing efforts. While the existing National Labor Relations Board (NLRB)/National Mediation Board (NMB) certification election-contractual bargaining system still functions on paper, in practice it has broken down.

Employers do not hesitate when flouting the law while trying to head off a union vote going against them. Even when they lose, bosses are willing to sandbag their workers by refusing to even bother to negotiate, and striking has been defanged as a tactic through legal injunction and wrongly decided precedent about permanently replacing strikers. While corporate campaigns, which focus on pressuring shareholders and embarrassing companies into acting humanely, have met with some success, they have not delivered the kind of widespread worker empowerment that the postwar period did.

There’s absolutely no doubt that if workers are going to ultimately make their own destiny that a new model or approach is needed for unions. One that has been proposed, separately by the UAW at the much-discussed Chattanooga, Tennessee, Volkwagen plant, by Harvard Law School professor Benjamin Sachs, and by labor lawyer and writer Tom Geoghegan is the implementation of works councils in the United States.

The works council model is one that is used across Europe, with the most prominent examples being in Germany, although such councils also exist in the United Kingdom, France, and Belgium. There, employees are elected to four-year terms on the works council, where they negotiate the terms of employment and workplace conditions with the employer.

In Germany, this is enabled through the Works Constitution Act, which was first passed through parliament in 1952 and allows the formation of works councils in any private workplace of at least five people. While the employees who serve on the works council are not required to be in a union, over 77 percent of them are. As such, the works council functions as a strong facilitator of union power in German labor relations, especially in the large auto plants there.

Works councils are imagined in the United States as an unprecedented form of economic democracy. Our conception of a Board of Directors has very little to do with a company’s employees or their demands; rather, it is an oligarchy of investors and corporate officers who run our nation’s business apparatus. So the thought of workers getting a say in the dealings of two of our nation’s largest industries, automotive and fast food, is one that is understandably exhilarating for those supportive of the labor movement.

But there are a few problems with implementing such a model in the U.S.. First, the National Labor Relations Act explicitly bans “company unions,” a worker organization dominated by an employer rather than as an independent body for workers, in Section 8(a)(2). Sachs makes that clear in his piece, saying that implementing a works council model at McDonalds would require significant legal wrangling to avoid being proscribed by Section 8(a)(2).

Another concern is that the works council model could mollify working-class radicalism at a time where it is on the upswing. Few could have predicted that fast-food workers would be engaging in waves of walkouts with the demand of a $15 an hour minimum wage. Combined with the recent demonstrations against state violence in major cities across the country, spurred by the decisions not to prosecute police officers in the Michael Brown case in Ferguson and the Eric Garner case in New York City, and the connections between these movements, working-class organizing might be in a stronger position now than at any other time since mass deindustrialization began in the 1970s.

Furthermore, stor after story is raising awareness of how other countries have paid their fast-food workers a living wage and still managed to turn a profit. To turn all of this potential for a paradigm-shifting movement and steer it towards a highly formal and bureaucratic process before any real gains have been secured would seem to be an error. In fact, many have argued that the bureaucratization of the labor movement is a key part of why it is in such dire straits in modern times. Why voluntarily repeat the errors that got us where we are today for a system that we are not even sure will work in the United States?

Finally, is winning a process that privileges the interests of management at the same level as the interests of the workers really worth it? Given all of the effort, energy and time that would get put into organizing works councils, is it a big enough win? The purpose of works councils is for smooth functioning of commerce at a given employer by addressing the collective concerns of its workers. Whether the emphasis falls on the front half of that statement—the smooth functioning of business—or the back half—addressing workers’concerns—in an American implementation of works councils remains up in the air.

At a time when labor is frequently discussing issues in terms of “labor-management partnerships,” will workers’ interests be better served by a system where the union is not even an independent body but rather an organ inside the corporate structure?

Works councils have significant power in Europe and are able to redress major issues for the workers who participate in them. However, they gained this power in the shadow of the Cold War, at a time when capitalism had to provide Western workers with some concessions lest they fall “victim” to Communism.

That threat does not exist now. There is no indication that the works councils that are being proposed would be able to address the larger problems that the working class faces on a day-to-day basis. While alternatives to a dysfunctional NLRA-focused process should be considered, the idea of a labor-management partnership can only function when labor has sufficient power to make everything stop.

Labor can only rebuild power through advancing the interests of the working class as a whole. Investing more in organizing, training, mobilization and educating union workers about their rights is a part of this equation, but only by fundamentally aligning the labor movement with the communities it represents will we start to recover.

This article originally appeared at Hack the Union and then on Inthesetimes.org on December 15, 2014. Reprinted with permission.http://inthesetimes.com/working/entry/17454/american_works_councils

About the Author: Douglas Williams is a Ph.D. student in political science at the University of Alabama, researching the labor movement and labor policy. He blogs at The South Lawn.

Domestic Workers in New York Win First-Ever Job Protections

Friday, July 9th, 2010

Troublemakers logo-blueDomestic workers in New York have won historic changes to the state’s labor law to include protections for their jobs. Final votes on Thursday ended weeks of wrangling between state Assembly and Senate leaders and Governor David Paterson, who said he would sign the bill.

The law guarantees domestic workers time-and-half pay for more than 40 hours and a day off each week, along with protection under worker compensation and anti-discrimination law and access to unemployment insurance. The compromise bill won’t include original demands for paid sick and vacation days and advance notice of termination. But three paid days off were granted after a year of service.

Domestic workers and advocates have been holding their breath since June 1, when 100 domestic workers and allies from around New York City traveled a well-worn path to Albany for a vote on the Domestic Workers Bill of Rights. The housekeepers and caregivers who tend to the children and homes of New York’s well-to-do had made this trip countless times in the last six years, coming face to face with lawmakers to campaign for basic protections on the job.

Promised votes that never materialized had disappointed them many times before. But on that night, after hours of worker testimonies and a few stories from state senators about the domestic work their mothers and grandmothers did, the Senate—at long last—voted 33 to 28 in favor of the bill.

“It was an incredible moment of validation,” said Priscilla Gonzalez, director of Domestic Workers United, the organization behind the bill. “We started six years ago by walking into legislators’ offices and educating them. Now we found ourselves witnessing senator after senator thanking these immigrant women of color who had been invisible for so long.”

DECADE OF STRUGGLE

The legislative victory in New York is a historic blow at domestic workers’ exclusion from federal labor protections. The legislation would be the first in the country to provide protections to domestic workers since the National Labor Relations Act of 1935 first excluded them.

The biggest stumbling block appeared to be outgoing Governor Paterson. While he reaffirmed the pledge of support he made for the bill on a radio show last year—acknowledging the historical exclusion of domestic and farm workers from labor law protections as racist—he approached the bill cautiously, at first issuing a statement denying he supported it. After the Senate and Assembly approved the compromise version Thursday, with three Republicans joining all 32 Democrats in the Senate, Paterson announced he would sign the bill.

The law also calls on the state’s Department of Labor to study the feasibility of collective bargaining for domestic workers and issue a report by November.

Domestic Workers United has much to celebrate in coming this far. DWU, founded in 2000, estimates that at least 200,000 people in the state—mostly immigrant women from Africa, the Caribbean, and Latin America—work in other people’s homes as housekeepers and live-in caregivers.

While some caregivers report decent working conditions with warm families and children they adore, others have to live with over-demanding bosses, and organizers have heard (and experienced) every horror story imaginable, from sexual assault to sewage-filled basement living conditions, abuse both physical and emotional—a litany of violations against basic human decency.

Even the not-so-bad situations can take a turn. Domestic workers report not being compensated for long trips, having to work while sick, and being let go without notice.

“A lot of times when you’re sick and can’t get up and go to work, you still get up and try to go, because you know you won’t get paid or they will replace you,” said Merilyn Blackett, an immigrant from Trinidad and Tobago with six years at DWU and nine years as a care provider for the elderly.

Arranging her own medical care has been difficult, too. Unable to get appointments during off hours, Blackett said she’d have to decide between getting paid or seeing her doctor.

Blackett and other determined workers met in 2004 to spell out what they wanted to see changed at work, giving birth to what would become the Bill of Rights.

TILL THE END

Domestic workers planned daily events in front of the governor’s office the week of June 14 to insist he sign the bill. Organizers burned through call lists and invited out prominent friends like the feminist leader Gloria Steinem, friendly legislators, labor leaders, and other allies gained during a decade of organizing.

Gonzalez said she expected legislators to prepare a compromise between the two bills, but argued for the strongest possible provisions. “Sick days and holidays are things that domestic workers on their own would not be able to negotiate—the power balance with the employer is too great,” she said. “We’re not asking for anything more than anyone else gets—we’re asking to get onto equal footing with other workers.”

Not everyone’s in support. Comments on news articles online show that for some employers, the bill hits a raw nerve. Gonzalez said some lawmakers fear the precedent this bill would set for domestic workers in other states and other groups of excluded workers—like farm workers.

DWU offers them no illusions: with their allies, they intend to run with the precedent as far and fast as they can.

SPREADING THE GAINS

DWU’s work is being replicated in other states through the National Domestic Workers Alliance, an organization of worker centers, immigrant rights groups, and domestic worker cooperatives that grew up out of the 2007 U.S. Social Forum in Atlanta.

Blackett said when she first got involved in DWU, after a friend encouraged her to attend a monthly meeting, “we were just thinking about mobilizing the domestic workers in New York City.” After DWU members went to Atlanta, she realized there were many other domestic workers they could help if they prevailed at home.

Domestic workers and their allies in California and Colorado are drafting their own bills of rights to introduce in their state legislatures. Organizations from the Bay to LA are collaborating to introduce a bill next year. They’ve produced a detailed survey of conditions, won the support of the San Francisco City Council, and gained a hearing on domestic worker conditions with the state legislature’s labor committee.

At the U.S. Social Forum in Detroit in June, the national alliance and a host of organizations planned a multi-year campaign to change federal labor law to cover all domestic and farm workers.

Originally published on Labor Notes.

About The Author: Tiffany Ten Eyck, a Michigan native, has worked with the Student/Farmworker Alliance and the successful Taco Bell Boycott campaign. A former SEIU intern, USAS activist, and anti-war agitator; she covers the UAW, farm workers, workers centers,  and building trades for Labor Notes.

NY's Domestic Worker Bill of Rights

Tuesday, June 8th, 2010

Workers Comp Insider LogoIn the 1930s, when the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA) passed, these two laws offered labor protections to workers nationwide – with the exception of two large segments of the work population: domestic workers and agricultural workers. These groups were excluded in the interests of political expediency since a large proportion of both groups were comprised of blacks and women, two populations that weren’t generally afforded full rights in many public and social arenas at the time.

With the 33-28 vote passage of the New York State Domestic Workers’ Bill of Rights in the Senate, New York is likely to become the first state in the union to remedy that. The Bill is not yet final law – first, the Senate bill needs to be reconciled with the bill passed by the state Assembly and then Governor Patterson must sign it.

Bill Number S2311D would “… amend the labor law, the executive law and the workers’ compensation law, in relation to establishing regulations regarding employment of domestic workers including hours of labor, wages and employment contracts.” The purpose of the bill is stated as being to: “… provide domestic workers with a Domestic Workers’ Bill of Rights which would set out the responsibilities of employers and employees as well as rules for paid holidays, paid vacations and standard overtime.”

It’s estimated that there are about 200,00 domestic workers in New York, 93% of which are women and 95% of which are people of color. Because the Bill covers all domestic workers – both legal and illegal – it’s been fairly controversial. Opponents decry the increase in regulation, which some say will result in fewer jobs. Many opponents also bridle against any protection for illegal workers, feeling that offers a legitimacy. Proponents say that it will go a long way to regulating an industry that has no standards or oversight and afford basic worker rights to a largely ignored worker population. Many of those in favor of the bill also think that shedding light on some of unregulated business segments which have historically been magnets for undocumented workers will be an important step in coming to grips with the hiring of illegal workers.

In a column in the New York Daily News, Albor Ruiz notes the irony that although we trust these domestic workers with our children, our elderly parents and our homes, they are among the most exploited of society’s laborers. He cites a study by Domestic Workers United and DataCenter, which found that, “…26% of domestic workers make less than the poverty line or the minimum wage rate. Also, 33% say they have been abused verbally or physically, and half report working overtime but not being paid for it. Health insurance from their employer is a rare luxury – only 10% get it.”

From our viewpoint, we think all employers have the responsibility to provide a fair and safe workplace for all employees, regardless of the work population involved – legal, illegal, here in the US, or offshore in other countries. It’s simply the right thing to do. But for those who don’t share this value, it generally makes sense from a cost perspective, too. In our experience, doing the right thing by employees is less costly in the long run.

This blog originally appeared in WorkersCompInsider.com on June 7, 2010. Reprinted with permission.

About the Author: Julie Ferguson is an insurance industry consultant with more than 20 years experience developing and implementing communications programs for workers compensation, workplace health & safety, employee communications, and general insurance programs. She founded and serves as editor for the nation’s first insurance weblog, Lynch Ryan’s Workers Comp Insider. She also founded and manages HR Web Café, a weblog for ESI Employee Assistance Group; Consumer Insurance Blog for the Renaissance Insurance Group; and is one of the administrators of Health Wonk Review, a bi-weekly health policy carnival. If you have a question for Julie, you can reach her at jferguson@lynchryan.com.

FedEx Threatens to "Destroy" Members of Congress

Tuesday, June 9th, 2009

FedEx CEO Fred Smith’s arrogant campaign of threats and intimidation continued this week when his top spokesman threatened to take down members of Congress who oppose FedEx’s position on a key piece of legislation.

When asked about FedEx’s multi-million dollar ad campaign against the legislation that is reported to launch on Tuesday, June 9, top FedEx flack Maury Lane told U.S. News and World Report in a story posted in The White House Bulletin, “I’m going to try to destroy them.”

This follows Smith’s repeated threats to cancel a $10 billion contract to purchase Boeing 777 planes if FedEx Express workers were moved under the National Labor Relations Act (NLRA).

FedEx clearly threatened in a March 24, 2009 SEC filing, and Smith reiterated in testimony before Congress in May, that its contract to purchase additional aircraft from Boeing is contingent upon its labor relations for all of its employees being governed by the Railway Labor Act (RLA). Under this provision, if Congress dares to grant even a portion of its workers the rights enjoyed by most American private sector employees under the NRLA, FedEx has the right to cancel those purchase orders.

“Fred Smith and FedEx breed a culture of arrogance,” said Teamsters General President Jim Hoffa. “First, they cut wages, increase medical insurance premiums and eliminate pension benefits for its employees. Then they try to blackmail Congress with threats to pull the Boeing contract. Now they threaten to destroy the political careers of those who oppose them.”

Currently, all workers at FedEx Express are covered by the RLA regardless of whether they have any direct relationship with the operation or maintenance of the air fleet. This includes package delivery drivers, workers at sorting facilities and truck mechanics.

The House of Representatives overwhelmingly passed legislation on May 21 that is a part of the Federal Aviation Administration reauthorization and would place those workers under the NLRA, the statute that protects virtually all other private sector workers. Under the NLRA, workers may organize by individual terminals while the RLA requires a more difficult path to unionization that requires a national vote by every worker at FedEx Express. The reauthorization bill is currently awaiting action in the Senate.

“It’s astonishing that Fred Smith and his flacks will go to any length to boost FedEx’s profits at the expense of American workers and the economy,” said Ken Hall, Director of the Teamsters Package Division. “By threatening to destroy members of Congress, FedEx’s efforts to manipulate the American system of government have crossed the line.”

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

This article originally appeared in Union Review on June 5, 2009. Reprinted with permission by the author.

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