Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Workplace Conditions’

How the Poultry Industry is Grinding Up Workers’ Health and Rights

Monday, March 25th, 2013

Michelle ChenWalk through any supermarket poultry section and you can marvel at the wonders of the modern food processing industry: antiseptic aisles packed with gleaming, plump shrink-wrapped chickens, sold at bargain prices under the labels of trusted agribusiness brands like Tyson and Pilgrim’s. But all that quality meat doesn’t come cheap: it’s paid for dearly by factory workers who brave injury, abuse and coercion every day on assembly lines running at increasingly deadly speeds.

According to newly published research on Alabama poultry workers by the civil rights group Southern Poverty Law Center (SPLC), the business model of the sector has sacrificed health and safety on the factory floor for the Tayloristic efficiency demanded by American appetites.

The supersized industry, which churns out about 50 pounds of chicken per American stomach annually, dominates many struggling towns in Alabama, a mostly non-union state, supporting about 10 percent of the local economy and some 75,000 jobsBut according to the SPLC’s researchers, the production line is butchering workers’ health:

Nearly three-quarters of the poultry workers interviewed for this report described suffering some type of significant work-related injury or illness. In spite of many factors that lead to undercounting of injuries in poultry plants, the U.S. Occupational Safety and Health Administration (OSHA) reported an injury rate of 5.9 percent for poultry processing workers in 2010, a rate that is more than 50 percent higher than the 3.8 percent injury rate for all U.S. workers.

Alabama workers interviewed by the SPLC reported being routinely subjected to unsafe working conditions that led to severe health threats, from repetitive stress injuries to respiratory issues to chemical burns. Adding insult to injury, employers often ignored workers’ debilitating problems or punished them for asserting their rights. Evoking images reminiscent of Upton Sinclair’s century-old expose on the meat-packing industry The Jungle, workers reported that problems like crippling hand pain would be diverted to the company nurse, rather than more intensive care by an outside doctor. Others were fired before they could become more of a liability.

One worker, a black woman in her 30s, recounted in an interview being pressured to shield her company from responsibility for her injury:

“I shouldn’t say it’s work-related. If I say my pain comes from something I did at work, then I will be laid off without pay and three days later get fired. So, when I go to the nurse I tell her that I hurt my hands at home.”

In towns that lack decent job opportunities outside of the poultry industry, these workers face an oppressive workplace culture that undermines not only their health but their dignity. Workers reported “being discouraged from reporting work-related injuries, enduring constant pain and even choosing to urinate on themselves rather than invite the wrath of a supervisor by leaving the processing line for a restroom break.”

Conditions may soon worsen, the SPLC notes, because the Department of Agriculture is seeking to alter regulations to allow even faster line speeds. That means the already frenzied pace of production–whipping bird carcasses into hermetically sealed flesh pellets in a matter of seconds–might speed up even more under a controversial set of proposed changes to plant inspection protocols.

The planned reforms have been criticized as counterproductive because they transfer control of inspections from federal inspectors to company employees. The revamped inspection process would, according to critics, both give corporations more power to regulate their own henhouse while accelerating the already frighteningly hectic pace of production. Some USDA inspectors have criticized the proposal, warning that with the combination of sped-up lines and company-controlled oversight, these industry-backed efforts to “modernize” the production chain may create more safety risks. So safety standards for both consumers and workers might be further weakened. (Industry representatives dispute the SPLC’s research, insisting that the proposal would not harm safety standards.)

Underlying labor injustices have exacerbated the immediate workplace hazards. The mostly black and Latino workforce, which includes many documented and undocumented immigrants, generally have little recourse against abusive employers. Many saw their pay arbitrarily cut by deductions for housing expenses and other fees. Meanwhile, for female workers, sexual harassment was a commonly reported issue. Harsh immigration enforcement laws, which were recently tightened by state legislation that seeks to further criminalize undocumented Latino workers, has made them even more economically insecure and socially marginalized.

One structural problem making poultry workers especially vulnerable, the researchers argue, is that despite some general occupational safety guidelines for poultry plants, OSHA “has no set of mandatory guidelines tailored to protect poultry processing workers,” which constrains workers’ ability to take legal action against unsafe working conditions or unfair treatment.

The report’s author, SPLC advocate Tom Fritzsche, says that while OSHA can enforce general workplace protections, regulatory gaps nonetheless enable the industry to structure its labor system around loophole-ridden standards for food production, which are not focused on worker safety. “This specific [line speed] rule from USDA is not really intended originally as a worker protection standard… The speed that they currently run at is based more on whether the inspectors can see the chickens, rather than how the workers can do the work safely,” he says. As a result of these regulatory lapses, “We’ve kind of ended up in a world where this is the only limit on speeds.”

Until state and federal regulators start prioritizing workers’ labor rights and health needs, the unsafe work environment, Fritzsche adds, “ultimately comes from the fact that the whole industry is just operating in this kind of race to produce as many chickens as they can in as little amount of time as they can. And so it affects every aspect of the worker’s job.”

But all those bitter hardships are stowed far away from the millions of super-clean, ultra-cheap drumsticks that will end up on American dinner tables tonight. Countless consumers will enjoy their meals without any conception of how perfectly the poultry industry masks the true price of its brutal efficiency.

This article was originally posted on the Working In These Times on March 21, 2013. Reprinted with Permission.

About the Author: Michelle Chen is a contributing editor at In These Times, a contributor to Working In These Times, and an editor at CultureStrike. She is also a co-producer of Asia Pacific Forum on Pacifica’s WBAI. Her work has appeared on Alternet, Colorlines.com, Ms., and The Nation, Newsday, and her old zine, cain.

Student guest workers walk off the job at McDonald's to protest abuses

Wednesday, March 13th, 2013

avatar_2563Student guest workers on the J-1 cultural exchange visa program walked out of their jobs at Pennsylvania McDonald’s restaurants Wednesday morning, citing abuses of the same kinds that caused a walkout from a Hershey’s supplier in summer 2011. As a result of that strike, the State Department investigated the program and strengthened protections somewhat, but not enough, according to analysts at the time and as demonstrated by the fact that once again student guest workers are coming forward with allegations of wage and hour abuses and having unreasonable rents deducted from their paychecks for basement rooms shared by several people.

Sean Kitchen reports that, at a recent meeting in Harrisburg, some of the student workers described their living and working conditions:

While at work, these “students” were often forced to work from 6 or 7 in the morning to as late as 11 at night with only one 30 minute to hour break. And to top it off, these students are paid minimum wage for all the hours they worked, despite working well over 40 hours per week, qualifying them for overtime pay. [...] Fernando told us about a story of retaliation from his employer.  When he spoke out against the company’s tactics, the manager gave Fernando a 4 hour work week.  When Fernando was explaining that this story to the room, he asked, “how am I suppose to pay a $300 rent when only working 4 hours in 1 week?”

One of the striking workers contacted the State Department, only to face intimidation in response:

Rios said that the US government responded by contacting GeoVisions, the organization that sponsored the trip; that triggered an unannounced visit to Rios’ shared basement room by a GeoVisions representative and Rios’ boss, McDonalds franchisee Andy Cheung. (GeoVisions did not immediately respond to a request for comment.)Rios said that Cheung yelled at him, while the GeoVisions staffer stood by, hands shaking, acting like Cheung was his boss as well. “You could see he was scared,” said Rios. “He would say things like, ‘This doesn’t look so bad to me.’”

Participants pay $3,000 or more for the chance to join the program, which is billed as cultural exchange, an opportunity to experience the United States. Arguably, being mistreated at a low-wage job is an important part of the American experience these days, but should the State Department really be running that?

This article was originally posted on the Daily Kos on March 6, 2013. Reprinted with Permission.

About the Author: Laura Clawson is an editor at the Daily Kos.

Research Raises More Toxic Health Concerns for Popcorn Workers

Friday, August 10th, 2012

Michelle ChenThe aroma of hot buttered popcorn evokes all sorts of childhood nostalgia, but for many workers, those savory vapors pose a modern industrial health hazard.

Evidence has been building over the years of a respiratory illness primarily afflicting factory workers exposed to the microwave-popcorn butter flavorant, diacetyl (DA). Now, researchers have discovered another potential hazard related to DA: long-term risk of Alzheimer’s disease.

Researchers with the University of Minnesota’s Center for Drug Design studied the effect of the “ubiquitous butter-?avoring agent” and detected an association with “long-term neurological toxicity,” particularly among industrial workers who are smothered in the stuff every day.

The federal government has in recent years urged the industry to limit potentially toxic workplace exposures to DA, but it has not defined an explicit regulatory exposure limit. Federal authorities have published advisories for employers to control DA exposure, but like many chemicals wafting across the country’s assembly lines and pervading our processed foods, DA (and similar chemical substitutes) are still amply used, with little restriction on behalf of public health.

Dr. Swati More, one of the study’s authors, says the findings should raise concerns that, in addition to posing respiratory risks, DA exposure “may lead to brain deterioration. The question that needs to be answered is, how much of diacetyl does one need to consume and for how long.”

Though the University of Minnesota study focuses on long-term effects related to beta-amyloid protein clumping in the brain, and was conducted at only the cellular level (not on humans), it adds to a growing body of research on the toxic impacts linked to DA exposure. Academic, media and government investigations have revealed both anecdotal and epidemiological evidence of “popcorn lung.”

The main occupational health issue surrounding popcorn lung, which has been acknowledged by the National Institute for Occupational Safety and Health (NIOSH), is bronchiolitis obliterans. (There is also some evidence of respiratory risk for extreme popcorn eaters.)

An extensive 2006 investigation by the Baltimore Sun’s Andrew Schneider revealed the potential health harms linked to DA exposure at workplaces. On top of the buttery scourge, which could impact many thousands nationwide, was the barrier of intimidation that workers felt under the pressure of their bosses:

The difficulty of assessing workplace illness is further complicated by employees who fear reprisal for complaining about hazards to anyone and by physicians who lack the training to recognize bronchiolitis obliterans and other occupational threats. ….

Their wellbeing falls to physicians, scientists and industrial hygienists trained in occupational medicine, which is the study of workplace hazards — chemical and otherwise. They are the ones who have linked lung disease to exposure to flavorings.

The report notes that efforts to protect workers were constrained by the industry’s tight grip over the regulatory regime. DA was among the many chemicals that the FDA labeled as “Generally Regarded as Safe,” but according to the Sun, “[The FDA] took the word of a panel of scientists hired by the Flavor and Extract Manufacturing Association. Diacetyl was declared safe decades ago because the industry said it was safe, according to a spokesman for the FDA.”

This kind of bureaucratic opacity trickles down to the workers on the factory floor in a devastating way. A 2007 Washington Post story described a worker from a California flavoring factory, Irma Ortiz, who was crippled by the mysterious illness:

Ortiz kept working until one day in December 2005 when she felt, she said, “I put all my strength into the job and I can’t do no more.”…

“Before, I used to do a lot of exercise. I ran from place to place,” she said, her sentences broken into panting phrases as if she were hiking a steep hill. Now, she does not like to be in public because long, body-shaking coughing fits could overcome her at any time. …

The loss of her $17-an-hour job makes keeping up with house payments difficult, said Ortiz’s husband, Victor Mancia.

They are waiting for a lung transplant. “I was perfectly fine when I started,” Ortiz said. “I want to be the same. But my doctor says I’m not going to be the same.”

While the regulatory process on the federal level has stagnated, California has moved ahead by issuing a rule on occupational flavoring exposures.

Dr. Celeste Monforton, a professor at the Department of Environmental & Occupational Health at George Washington University, says the latest research on the popcorn-Alzheimer’s connection is not likely to spur further federal action on popcorn flavoring, as regulators are already focused (though still largely inactive) on the larger epidemiological studies on respiratory effects due to workplace exposures. But Monforton, who has worked with scientific colleagues to press for stronger regulation of DA, sees the results as further proof of how industrial chemicals shape people’s health in ways that researchers have only begun to explore.

“We have this regulatory system, or market system, that basically says, ‘We can expose people to whatever the hell we want, and then, if we find out something’s bad about it, some smart researchers out there will figure out what it’s going to do to you,’” Monforton says.

The diacetyl dilemma, she adds, “is probably one of the worst-best examples of how screwed up our worker protection system is.”

This blog originally appeared in Working In These Times on August 9, 2012. Reprinted with permission.

About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

Even With Daisey’s Lies Peeled Away, Apple’s Rotten Core Exposed

Thursday, March 22nd, 2012

Michelle ChenApple’s brand glared in the media spotlight this past week, after the public learned that performance artist Mike Daisey’s theatrical rendering of the struggles of Apple factory workers contained false claims—painfully exposed on an episode of the radio program This American Life. But if one fundamental truth has emerged from the scandal surrounding Daisey’s dramatic fudging, it’s that the lived reality of many Chinese workers is undoubtedly bleak—no embellishment needed.

Daisey’s personal account is gratuitously peppered with fabrications, but the story of systematic exploitation is essentially true. For years various watchdog groups have tried to hold Apple accountable for harsh working conditions in China, which have been linked to workplace-related suicides and health hazards. Since a number of young workers killed themselves in 2010, the consumer advocacy campaignMake IT Fair, together with the Hong Kong-based Students Against Corporate Misbehavior (SACOM),have documented systematic abuses: exhausting hours, an oppressive, militaristic workplace culture and, despite conciliatory pay hikes, extremely low wages in comparison to the tremendous corporate profits and brutal working conditions.

It should be noted, however, that Daisey’s “dramatic license” was debunked largely through the real findings of intrepid investigations by advocates and professional reporters, which some commentatorshave highlighted amid the media fallout. As part of its “Retraction” episode, in fact, TAL interviewed New York Times reporter Charles Duhigg about the real story behind Daisey’s fictions.

On the reported widespread violations of a 60-hour weekly cap on working hours, Duhigg tells host Ira Glass, Apple claims workers volunteer for this excess work:

Duhigg: They say, “Look, one of the reasons why there is so much overtime that’s inappropriate and, in some places, is illegal, is because the workers themselves are demanding that overtime.”

Now, workers don’t always say that. What workers often say is that they feel coerced into doing overtime, that if they didn’t do overtime when it’s asked of them, that they wouldn’t get any overtime at all, and that financially they would suffer as a result.

This is the kind of more nuanced, day-to-day exploitation that Foxconn workers face–not so sensational, but nonetheless driven by global economic forces.

Li Qiang, head of the New York-based China Labor Watch, told In These Times that in terms of the situations Daisey described, basically, “What he said about working conditions is true.” He added, “Through this kind of media reporting, maybe more artists or journalists, or others will go to China to investigate the real circumstances in Chinese factories….  This way, this issue can generate more public debate.”

While Apple has touted a new partnership with the third-party monitoring organization Fair Labor Association, many critics remain wary that Apple will continue to fail the workers at the dregs of the supply chain. Even worse, Apple might turn the scandal into a marketing opportunity, polishing its reputation with a dab of “corporate social responsibility” measures.

Make IT Fair recently denounced the FLA partnership as “a mere PR stunt,” citing comments by FLA president Auret van Heerden praising Apple facilities as “way, way above the average of the norm.”  Activists call on Apple and other industry leaders to adopt more stringent ethical codes, which protect the environment from damaging extraction of raw materials, honor collective bargaining rights, and protect workers and their communities from discrimination and rights abuses.

Apple’s real attitude toward its workers has been far from charitable. In a statement responding to TAL‘s retraction, SACOM (whose campaigns have informed both Daisey’s and TAL‘s reporting) pointed to the ongoing ramificiations of an incident that inspired Daisey’s narrative—a mass poisoning at a facility where workers were exposed to the chemical n-hexane while polishing gleaming touchscreens:

In contrast to Apple’s statement that they have all been treated successfully, many workers still suffer from weak limbs and other health problems after nine-month hospitalizations. The victims sent three letters to Apple last year, but the company did not answer them at all. Likewise, after the explosion at the iPad case manufacturer Riteng in Shanghai in last December, which injured 59 workers, Apple has not sent anyone to visit the victims. The young workers are in despair because their faces were disfigured due to the fire from the blast. Some of them suffer from bones so severely shattered that they may be permanently disabled. Three months have passed, but the victims have not received any compensation….

While Apple hypocritically expressed that the company was deeply saddened by the tragedy, it has never apologized or offered compensation to the workers for its negligence in complying with work safety rules.

For all his professed empathy for Foxconn workers, Daisey’s exaggerations were stupefyingly self-serving. Even as he awkwardly attempted to express contrition in the follow-up dialogue with Ira Glass, he insisted that within the realm of theater, he had legitimately blended fiction and nonfiction to create a more emotive experience for a Western audience.

The claim reveals that Daisey lied to elevate his role in the story. He basically decided that the ugly truth wasn’t quite dramatic enough for him—a sideways insult to the workers whose cause he claimed to champion.

In a correspondence with In These Times, SACOM project officer Chan Sze Wan said, “we worry that the public will misunderstand [and think] Foxconn is innocent after the Mike Daisey’s case.” As a research-based group, she added, SACOM “will continue to provide accurate information to consumers to solicit their supports,” but ultimately, voices of workers themselves will need to be heard:

Nowadays, Foxconn workers do not have real worker representative system in the factory. So, SACOM has to channel their grievances to Apple. However, we always emphasize that workers should be the ones to monitor the working conditions at their workplace and fight for the rights.

Following the string of suicides, a quote from a Chinese blog captured the workers’ story more eloquently than an American performer ever could:

Perhaps for the Foxconn employees and employees like us
– we who are called nongmingong, rural migrant workers, in China –
the use of death is simply to testify that we were ever alive at all,
and that while we lived, we had only despair.

In the context of that hushed plea, the media hooplah over the fudged Foxconn narrative simply distracts us from the real masterwork of fiction that Apple and other tech giants continue to peddle: the imaginary world of our gadgets, a cosmopolitan universe that pretends to connect everyone while in fact sharpening the lines between consumers and the invisible workers that enable that carefree lifestyle. And we’re all buying it.

This blog originally appeared in Working in These Times on March 21, 2012. Reprinted with permission.

About the Author: Michelle Chen is a contributing editor at In These Times. She is a regular contributor to the labor rights blog Working In These TimesColorlines.com, and Pacifica’s WBAI. Her work has also appeared in The Nation, Alternet, Ms. Magazine, Newsday, and her old zine, cain. Follow her on Twitter at @meeshellchen or reach her at michellechen@inthesetimes.com.

Therapeutic Suffering

Monday, August 22nd, 2011

Image: Bob RosnerI was at the gym discussing my less than perfect posture this morning with Kyle Davis, a master trainer at 24 Hour Fitness in Seattle.

I told Kyle that my shoulders were killing me after doing the rotator cuff exercises that he’d shown me to help stand me up straighter. He just laughed and called my pain, “therapeutic suffering.” Suffering that was required to get me to a better place.

Immediately I knew that I’d have to steal his phrase for the workplace. Because it explains so much about what we all need to know to survive today’s turbulent economy.

Call me a tad too cynical, but the workplace has two kinds of suffering right now. Therapeutic and Non-Therapeutic suffering. Sure I’ve heard that there are happy people out there, but after over 50,000 emails from readers, I can count them on one hand. Then again, before I changed the name of my weekly column to Workplace911 it was called Working Wounded.

Back to therapeutic suffering, when a boss hassles you to make a presentation perfect, that would qualify as therapeutic, the goal is to make you better. When a boss yells at you for the sake of yelling, as had happened to a friend of mine earlier last week, well that’s the non-therapeutic version. Or abuse, short sightedness or just bad management.

The key is to take the time to sort out the therapy level in whatever pain you’re experiencing. Give the challenging economy, most of us aren’t in a position to jump ship at our first non-therapeutic treatment. But if the suffering becomes too non-therapeutic, we can always get Human Resources, our Union or other loyalists in the company to support our cause.

The interesting part. Even if you can’t change the behavior or your job, just knowing that you’re being treated unfairly just might be able to help you to keep your cool and to maintain your perspective.

Use the concept of therapeutic suffering at work and you just might find yourself improving your posture too.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Giant Supervalu Grocery Chain Sues Small Workers Center

Tuesday, August 2nd, 2011

R.M. ArrietaOrganizers say a lawsuit filed by a Minnesota grocery store chain against a worker center is nothing more than an attempt to bankrupt and silence them. Supervalu’s suit is a culmination of activity over 18 months in which workers have been calling for fair pay and better working conditions.

In May, In These Times reported that workers, frustrated with lack of response from representatives at Supervalu, parent company of Cub Foods, went on a 12-day hunger strike. That strike ended when several state lawmakers attempted to get executives at the retail chain giant to meet for talks and called on the group to end the fast.

Supervalu executives reportedly refused to meet with the workers and filed acivil lawsuit July 18 requesting damages against the small nonprofit workers center that supported the action: Trabajadores Unidos en Lucha (CTUL).

The chain also filed a temporary injunction imposed by a judge and, among other things, ordered CTUL to post the suit on its website and Facebook page and on any Twitter feeds and link the order in any email, web postings or Twitter feeds concerning any planned actions against Cub Foods.

“We did not want to file a suit against CTUL, but because of their aggressive protests taking place in our stores we had no choice,” said Mike Siemienas, a spokesman at Supervalu, Inc. told In These Times.

Attorneys representing CTUL have filed a motion to dismiss the charges.

“We find it hard to believe the lawsuit was because of that. We believe it is aimed at trying to bankrupt us and silence us,” said CTUL spokeswoman Veronica Mendez, who has also been named in the suit.

The workers are calling for job safety and a “Code of Conduct.”

Several state representatives including Congressman Keith Ellison, State Senator Patricia Torres-Ray ELCA Bishop Craig Johnson, Rep. Jim Davnie, and Minneapolis City Council Member Gary Schiff are backing the workers. The Minneapolis City Council signed a resolution in support.

CTUL stated that it believes the lawsuit is in retaliation for the nonprofit calling on the help of the government to help resolve the labor dispute.

“Cub Foods should be commended for donating to food pantries and helping tornado victims. But the core of good corporate citizenship is not charitable giving; it’s treating your workers with respect and dignity. These workers have asked for little more than to meet and discuss their pay and work rules, and they have been rebuffed,” Congressman Ellison said in a statement.

Supervalu is one of the 100 richest corporations in the world – making more than $40 million in profits last year. For the quarter ending June 18, itreported a profit of $74 million, according to the Wall Street Journal.

Meanwhile, over the past 10 years, working conditions for cleaners have deteriorated. Many cleaners who once earned between $10-11 an hour now earn $7-8 an hour. The cleaning crew has shrunk from four to two, according to Mendez.

Cub Foods says it’s not responsible for the poor treatment of workers because they are subcontracted out to a cleaning company, Carlson Building Maintenance, whom Cub says is responsible for their workers. Said Siemienas, “It is a common practice for retailers to use third-party services to clean their floors. We ensure that our contractors follow all laws and labor laws.”

However, this practice allows retail companies take the lowest bid, pitting maintenance companies against each other. To keep the costs low, these companies do what they can to cut corners.

Mendez explains that Carlsen has told workers they do not have the money because they are not getting more money from Supervalu and that in fact, the price of the contract is going down.

“Carlsen doesn’t have ability to pay workers what they need to be paid. It’s clear to us that if there’s going to be real change, it has got to come from Supervalu.”

SHAREHOLDER MEETING

This week, workers and faith leaders went to a recent Supervalu shareholder meeting in Edina, Minn. Pastors Grant Stevensen and the Rev. John Gutterman got in, and asked the company to do the right thing.

Stated CTUL member Lucila Dominguez, who was one of the people who took part in the hunger strike in May.

This problem will not change until large retail chains like Cub Foods agree to ensure fair wages and working conditions for workers who clean their stores regardless of which contractor they use.

Said Mendez, “They’ve made lots of claims as to why they wanted this lawsuit, when all we wanted to do was sit and talk.”

This article originally appeared on the Working In These Times blog on July 29, 2011. Reprinted with permission.

About the Author: R.M. Arrieta was born and raised in Los Angeles. She has worked at three daily newspapers and two television stations and is a former editor of the Bay Area’s independent community bilingual biweekly El Tecolote. She currently lives in San Francisco, where she is a freelance journalist writing for a variety of outlets. She can be reached at rmarrieta@inthesetimes.com.

No Pattern To Be Found

Thursday, June 10th, 2010

Ravi BakhruDepartment of Labor news releases rarely get the attention they so rightly deserve. But I’m a fan of giving credit where credit is due, so when Assistant Secretary Joseph Main issued this statement, I perked up.

After an investigation by Federal officials, a mine operated by Massey (think Upper Big Branch explosion) was cited for 29 violations in its Tiller No. 1 Mine. The violations ranged from hazardous roof conditions to inadequate ventilation to, wait for it….

Non-permissible electrical equipment with the potential to explode methane gas.

Section 104(d)(1) of the Federal Mine Safety and Health Act describes a significant and substantial violation as being “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” A violation of this provision essentially means there is a reasonable likelihood that the hazard will result in serious injury or illness. The problem is not just the standard, but in the requisite number of violations that meet the standard to establish a pattern.

Judge David Barbour, who issued an oral ruling (written decision to come) on the matter, found that although he believed all 29 violations had occurred, only 19 of the violations amounted to significant and substantial, 6 less than the 25 needed to establish a pattern. Don’t bother asking if that’s a typo, 25 “significant and substantial” violations are necessary in order to establish a pattern. Establishing a pattern means that any significant and substantial violation found within 90 days thereafter automatically triggers a withdrawal order until the mine has a clean inspection with no S&S violations. In short, establishing a pattern would immensely help those who work in such unsafe conditions by forcing mine operators to clean up or face losing money every day.

“No mine has ever been successfully placed into pattern of violations status.” This is perhaps the most profound statement made with regards to the matter. In 2006, the American public endured the Sago Mine explosion and watched as a single miner emerged with his life. And in April of this year the Upper Big Branch mine exploded, killing 29 coal miners.

Mining is undoubtedly one of the most dangerous jobs in the world, and we continually disrespect those who risk their lives for our energy by refusing to recognize and fix a broken system of oversight. Employees of these mines should be disgusted, if they aren’t too busy being frightened. The Federal Mine and Health Safety Act is designed to provide regulations and oversight into one of the most hazardous industries known to man. It was not designed to protect the companies who owned the mines, but the average worker who spent a full 8-10 hours in a black hole.

A message needs to be sent to the mine industry: we will no longer tolerate such blatant disregard for workers. We may not be able to bring mining from one of the most dangerous jobs in the world to the safest job in the world, but surely we can help those facing such conditions. And we can do that by easing the restrictions on establishing patterns of violations. Doing so would allow regulators to shut mines down when they see violations deemed S&S, and force mine operators to think about safety more than once every explosion.

About The Author: Ravi Bakhru is a third year law student at George Washington University. He currently works as an intern for Workplace Fairness, and has an interest in pursuing employee rights law in the future. To get in touch with Ravi, you can email him at Ravi.Bakhru@gmail.com.

Cubicle Blues

Tuesday, June 1st, 2010

Image: Bob RosnerYou’d expect the “father” of the cubicle to be a proud parent. Heck, his invention multiplied faster than rabbits. But you’d be wrong.

Thirty years ago, Robert Probst was seeking to create the perfect place to work for the office furnishings company Herman Miller. In search of the “office of the future,” he designed the perfect environment for maximum satisfaction and productivity. He called his creation “the action office.”

Yep, the cubicle. At the time Probst was looking for something better than the open bullpen that was the norm for much of the last century. He wanted to create a space that would allow privacy, personalization and the maximum in flexibility. For example, his original creation had a variety of surfaces that you could work from each that was a different height.

So much for privacy, personalization and flexibility. Just before his death in 2000, Probst called his creation “monolithic insanity” in Fortune.

There are many reasons why the “action office” devolved in the cube. Soaring real estate prices, corporations trying to get more bang for the buck by packing employees in like sardines and even the tax code (corporations can write off cubicles much faster than they can write off their investment in walls in an office building).

There is a part of me that believes that the successor to the cube will be emptying out our huge office buildings in a massive wave of telecommuting. This makes sense for so many reasons—spiraling gas prices, increasing real estate costs and the fact that so many homes now have broadband access. The only problem with this picture is that we barely know how to manage the people we can see at work, so few of us have the foggiest idea of how to manage people we can’t see.

Which leads back to the “action office.” It’s clear that business is now 0 for 2. The bullpen didn’t work. The cubicle has spawned Dilbert and a massive amount of griping from most of the people who’ve worked in one.

So what is the answer? I think it involves combining the best of the future with the best of the past. The first part of the equation is really figuring out what jobs can be done by telecommuting. And what workers and managers are up to this challenge. Once these jobs are moved out of our buildings then we’ll actually have the room to turn the cube back into the “action office” that Probst originally envisioned. With fewer people they can be bigger and hopefully employees can have the ability to tailor them to their needs.

For all the talk of productivity, I’m surprised at how little of the conversation addresses the place where most of our work actually gets done. If more of us engage in this conversation, hopefully, we’ll be able to put the “action” back into the “action office.”

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Work Doesn’t Have to Be Awful

Monday, March 15th, 2010

Image: Bob RosnerI’ve gotten a lot of email through the years. And most of it has been difficult to read—people who were cruelly fired, who are being hassled by coworkers or who have done something truly stupid (just this morning I just got an email from a woman who told me about how she sent her resume and cover letter to her current boss).

If you have a particularly macabre sense of humor it is possible to find my mail funny. But mostly it makes me sad.

So given the negative nature of most of my correspondence, the last few weeks have been a revelation for me. I’ve been working on a new business venture and I’m part of a team of four people putting together a business plan. One guy I’ve worked with on my last two books, so we have a bunch of history working together. The other two people were total strangers when we started. I barely knew either of them either personally or professionally. Another complicating factor is how different our expertise, world view and just general make up are from each other (that’s make-up in terms of approach to the world and not our use of rouge).

If this column had a sound track, you’d probably be hearing Steven Stills in the background singing “Love the One Your With.” (Don’t recognize it, then just ask the nearest boomer and they can hum a few bars for you).

Please note, I didn’t say that we were all singing “Kumbaya.” No this is a room full of Type A personalities. The key is as remarkable as it is simple. We all listen to each other. In fact, I can think of multiple areas where we all had hard and fast rules for what we wanted. We listened to the other people involved and either modified what we previously thought was essential.

I can hear what you’re thinking. It’s like a committee that produces lowest common denominator work. Not at all. We are actually able to draw the best from each person and then make it even better through our brainstorming.

One simple trick, we call it placeholders. When we have a name or idea that is good, but its clear to at least some of us that we could probably do better, we call the existing best effort our placeholder. We use it, but we’re always on the lookout to make it better. This is just one technique we’ve developed to not settle for okay, but to push for the best.

This experience has given me hope. It is possible to work with people who you like and respect and accomplish a lot in the process. You better sit down before you read this next sentence—not only is it possible to find colleagues that you can work with, I believe there are even a few sane bosses out there. The challenge is to find ‘em.

Okay, I’m sure that most of my regular readers think that either this blog has been hijacked or that I’ve lost my mind. It’s hard to argue with the latter argument, but after year upon year of horror stories from the cubicle world, I want to take a moment to report that work can be uplifting, collaborative and fun and not just a long process of letting all of the air out of your tires.

I’ve decided to go positive. I’ve learned from Allan, Shari and Jon that collaboration is a wonderful thing. Sure there are tough times, but the more brains you have at the table the better the quality of the work and the more fun you’ll have.

A few words for those stuck in a less than great working environment. I understand that people have mortgages, orthodontist bills and families to feed. That said, I’m hard pressed to say that there are just some jobs that are better to have in your rear view mirror. A paycheck just isn’t worth daily bouts crying, being yelled at or just feeling miserable. Hopefully this blog can play a small role in reminding you that there are saner possibilities out there.

I’ve also heard through the years from people who’ve taken a bad work environment and turned it around. Mostly through “random acts of kindness,” or building community, trust and support in a place where none exists. It’s not easy, but like flowers growing up through tiny cracks in a sidewalk, it happens.

There is a saying from an old court case, “Work time is for work.” But that doesn’t mean that it has to be a prison sentence—something to be endured. Work can have meaning, collaboration and, dare I say it, fun. But it probably won’t just fall in your lap. You’ll have to seek it out, but it’s out there.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Also check out his newly revised best-seller “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Wednesday, March 10th, 2010

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.

Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

* discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

* discriminated against her because of age in violation of the Age Discrimination in Employment Act

* retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

* permeated with discriminatory intimidation, ridicule, and insult that is

* sufficiently severe or pervasive to alter the conditions of the victim’s employment and

* create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

* grabbed Gorzynsi and other women around the waist

* tickled them

* stared at them as if” he was mentally undressing them”

* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

* it exercised reasonable care to prevent and promptly correct any harassing behavior and

* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

* only complained to her supervisor — the harasser

* did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed. It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

* the other manager Gorzynski could have complained to was Thro — the regional manager

* the evidence showed that Thro was not receptive to receiving complaints from employees

* the evidence also showed that Thro was intimidating

* Thro retaliated against those who made complaints

Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination:

* she was over 40

* she was qualified for her position

* she was fired

* she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week

* a contemporary, anonymous crewmember gave her a 4 out of 5

* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him

* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”

* Celeste told Gorzynski she reminded him of his 80 year old aunt

* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”

* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination

* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images: www.bajanfuhlife.com/news/news

*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

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