Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘remedies’

Oh Great, More CEOs Telling Us We Need to Cut Social Security and Medicare Benefits

Friday, January 18th, 2013

Jackie TortoraAs if we didn’t already have enough on our plates (having to fend off attacks from the “Fix the Debt” CEOs), now there’s another group of CEOs, the Business Roundtable, telling us we need to “modernize,” a.k.a. cut, Social Security and Medicare benefits by raising the eligibility ages and reducing cost-of-living adjustments (COLAs). How helpful. 

R.J. Eskow took on the Business Roundtable in his latest blog, How Extreme Is the Business Roundtable? Check Out Its Attack on the Elderly.

Yesterday, Gary Loveman, CEO of Caesars Entertainment Corp. and head of the Roundtable’s “health and retirement committee,” told Politico that “[a]ny effort to address the country’s fiscal problems has to have as a centerpiece reform of its principal entitlement programs.”

Added Loveman: “None of us [CEOs]—very few of us—are ideologically driven. We’re pragmatists….”

“I am encouraged by how relatively easy these remedies really are,” said Loveman. “… (and) they have a tremendously sanguine effect on the government’s fiscal health.”

That’s true. It is pretty easy. Just kick in a few rich people’s doors, seize their belongings…oh, wait. That’s the other extremist scenario. Loveman’s is the one where people who have paid for Social Security and Medicare coverage throughout their working lives must give some of their benefits up—for him and his friends.

These CEOs are the same people cutting back on pensions and retiree health benefits. Now they want working people to have even more economic insecurity in retirement by cutting the few benefits that keep seniors afloat. 

Raising the Social Security retirement age is especially damaging. Not only is it a benefit cut, workers 55 and older have the longest bouts of unemployment. The average time unemployed is nearly a year (51.3 weeks, compared to 34.3 weeks for workers younger than 55).  

Eskow points out that 8.9% of American seniors already live in poverty, while 5.4% are on the edge. The average Social Security recipient collects $1,164 per month.

Anyone who claims they can cut those benefits by 3%—and use those meager benefits to end elder poverty—is selling snake oil.

Snake oil indeed. There’s nothing more cynical than calling devastating cuts to vital lifelines “modernization proposals.” Working people know the difference. 

This post was originally posted on AFL-CIO on 1/17/2013. Reprinted with Permission.

About the Author: Jackie Tortora is the blog editor and social media manager at the AFL-CIO. Interviewing union musicians was her introduction to the labor movement. Her first job after graduating college was in Syracuse, New York, where she wrote and edited the International Musician, the monthly magazine for the American Federation of Musicians (AFM). Protecting Social Security and Medicare from benefit cuts brought me to Washington, D.C., where she spent two years as a new media coordinator at the National Committee to Preserve Social Security and Medicare. She came to the AFL-CIO in the summer of 2012, just in time to re-elect President Barack Obama. When she’s not tweeting about America’s unions, it’s likely she’s watching Syracuse basketball and football. 

NLRB Chairman: New Penalties Needed for Union-Busting of Undocumented Workers

Tuesday, October 30th, 2012

NEW YORK CITYNational Labor Relations Board Chairman Mark Pearce says his agency could pursue new remedies to punish employers who retaliate against undocumented immigrants for organizing. Last year Pearce interpreted a 2002 Supreme Court decision to rule out back pay as a remedy in such cases, limiting the NLRB’s options of financial penalties.

Interviewed Friday by Working In These Times, Pearce called the tension between immigration law and labor law “extremely frustrating,” and the tools available for protecting undocumented workers against employer crimes “insufficient.”

“The concept of ‘made whole’ by us needs to be examined,” said Pearce, referring to a legal guideline for NLRB remedies. “Perhaps there are things within that concept that we can utilize. Now I can’t articulate what they are, because we’ve got to consider it.”

Pearce made these comments following a forum hosted by Cornell University’s ILR School. In his remarks to the assembled attorneys, Pearce said he “had angst over” his ruling in the NLRB’s Mezonos Maven Bakery case last year. In that 3-0 decision, the NLRB found that a bakery that fired a group of workers who had collectively complained about a supervisor could not be required to pay them back pay, because they were undocumented.

The Mezonos decision cited the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. NLRB, which overturned an NLRB ruling granting back pay to an undocumented worker who was fired after trying to form a union (the NLRB is tasked with enforcing and interpreting private-sector labor law, but federal courts have the power to overturn the NLRB). Writing for a 5-4 majority, then-Chief Justice William Rehnquist said that “awarding back pay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations.”

At Friday’s forum, Pearce said that the Hoffman decision had forced him to deny back pay in Mezonos and “continues to create that problem where an employer could get away scot-free” with firing undocumented union supporters. Pearce said he had “struggled with the tension between the National Labor Relations Act, immigration law, and the rights of undocumented workers.” While the NLRB can still use non-economic remedies in such a situation, like requiring a company to post a notice saying it will comply with the law in the future, Pearce said that “seems a little empty” without a financial cost attached.

After the forum, Pearce told Working In These Times that the tension he’d identified could be resolved if a future Supreme Court case offers the NLRB “a more promising, or a more significant remedy to be applied for discriminatees who happen to be undocumented. But otherwise, it would probably have to take a change in the law.”

In the meantime, said Pearce, “the board has a certain degree of discretion with respect to the remedies.” He noted that the NLRB is legally empowered to “make whole” workers who are illegally punished or discriminated against, but is barred from assessing punitive damages against employers. That means that financial penalties against companies generally come in the form of back paywhich Mezonos took off the table for undocumented workers. “So exploration would have to be had,” said Pearce, “as to the full parameters of [the ‘made whole’] concept, to see whether or not a remedy could be fleshed out [for] those kinds of violations.”

Such a move “would be significant,” said Ana Avendaño, the AFL-CIO’s director of immigration and community action. “Because under the current structure, employers basically get a free bite at the apple. They can violate the law with impunity.”

Interviewed Saturday by phone, Avendaño disputed Pearce’s view that the Supreme Court’s Hoffman ruling required the NLRB to deny back pay in Mezonos. She said that a lower-level NLRB judge had been right to find that Hoffman didn’t apply in Mezonos, because in Hoffman it was the undocumented worker that had been proven to have violated immigration law, and in Mezonos it was the employer. Avendaño, who was among the attorneys arguing for back pay in Mezonos, said she hopes the second circuit court will reject the NLRB’s Mezonos reasoning and send the case back for a new ruling.

But Avendaño echoed Pearce’s criticism of Hoffman, which she said “has a chilling effect” on undocumented immigrants seeking to organize at work. Ultimately, she said, new legislation will be necessary to restore such workers’ rights, perhaps as part of a broader immigration reform.

Still, Avendaño welcomed the NLRB Chairman’s comments about the possibility of other remedies under current law. Given that the law bars punitive damages, and Hoffman restricts back pay awards to workers, Avendaño said, “one idea that advocates haveand the legal basis for this is soundis that there could be a fund established, where employers would still have to pay the back pay, but it would go into the fund, not directly to the worker.”

Avendaño said such a “special remedy” would be “less than ideal,” but would be an improvement over the status quo, where employers face a “perverse incentive … to just violate the immigration law, and then violate the [National Labor Relations Act], and have no responsibility for it.”

If a fitting test case reaches the NLRB, said Pearce, “We would have to see whether the board has that kind of authority, or is there something that causes us to feel that we are able to create an exception to the standard remedy.” Avendaño said the AFL-CIO hopes that will be the case: “If there was an opportunity, and we may have one soon, then we certainly are going to advance that argument.”

This article was originally posted on In these Times on October 29, 2012. Reprinted with permission.

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