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Trump has a habit of hiring people with histories of sexual misconduct. Herman Cain is the latest.

Tuesday, April 9th, 2019

President Donald Trump has recommended another man who has been accused of touching women without their consent for a major government position.

Trump announced last week that he has settled on Herman Cain, a former Godfather’s Pizza executive, for a seat on the Federal Reserve Board. Cain ended his 2012 presidential bid after four women came forward with sexual harassment allegations against him.

One of the women, Sharon Bialek, said Cain asked her for sex when she sought his help finding a job in 1990s. According to Bialek, he said, “You want a job, right?” as he ran his hand up her skirt. Karen Kraushaar, another woman who publicly spoke out, said Cain groped her in the 1990s.

Cain, who hasn’t yet been officially nominated by Trump, has denied these allegations. On Friday, he said in a since-deleted video on Facebook that he would “be able to explain [the allegations] this time, where they wouldn’t let me explain it the last time. They were too busy believing the accusers,” according to Marketwatch.

Cain’s nomination fits into a disturbing pattern for Trump. He has repeatedly nominated men who have been accused of sexual assault, sexual harassment, and intimate partner abuse to top positions in his administration. Others have enabled sexual violence and harassment even if they did not personally commit it themselves.

During the Obama administration, significant negative media reports and criminal accusations about cabinet nominees “would be flagged for further scrutiny,” and sexual assault allegations “would be a serious red flag,” a former Obama staffer who vetted appointees told ProPublica in 2017. But this White House has nominated and hired so many people accused of sexual violence and abuse to top positions that it’s not clear the Trump administration is taking the same approach.

The failure to take sexual assault and intimate partner abuse seriously is also evident in the administration’s policy decisions. Education Secretary Betsy DeVos has taken steps to loosen accountability for accused rapists on college and high school campuses, for example, and the administration’s current immigration policies make victims of intimate partner too scared of deportation to come forward.

Brett Kavanaugh

Despite at least three accusations of sexual misconduct, Brett Kavanaugh was nominated and confirmed to the Supreme Court last year.

After Trump tapped Kavanaugh to fill the seat vacated by Anthony Kennedy, Christine Blasey Ford canme forward to accuse Kavanaugh of forcing her into a bedroom, along with his friend Mark Judge, at a small gathering in the 1980s. She told The Washington Post that Kavanaugh pinned her down to the bed while he tried to remove her bathing suit and other clothing and that when she tried to scream, he covered her mouth with his hand. After Judge jumped on them, Blasey Ford said she managed to escape the room.

Other women then came forward with similarly troubling stories. Deborah Ramirez told The New Yorker that Kavanaugh thrust his penis in her face at a party when the two attended Yale University. Julia Swetnick said in a sworn declaration that when Kavanaugh was in high school, he participated in “abusive and physically aggressive behavior toward girls” such as grinding against girls without their consent, trying to remove or shift girls’ clothing to expose private body parts, and making crude sexual comments.

Swetnick also said Kavanaugh was among the boys lined up to participate in gang rapes at house parties. She said she was once the victim of a gang rape; she said Kavanaugh was present when she was assaulted, but did not say he participated in it.

Though he was confirmed by one of the slimmest margins in history, Kavanaugh is now sitting on the nation’s highest court, where he can shape laws that affect victims of sexual assault.

Rob Porter

White House aide Rob Porter resigned last year after the media reported on his alleged spousal abuse.

Porter struggled to obtain a security clearance to work at the White House because of allegations of domestic violence, according to CNN. Two of Porter’s ex-wives, Colbie Holderness and Jennifer Willoughby, told CNN they experienced abuse at his hands.

Holderness, who married Porter in 2003, said the physical abuse began during their honeymoon. She said he would later being to choke her and punch in her the face, and she pointed to a 2005 photo of her bruised face as proof.

Willoughby, who married Porter in 2009, said he yelled at her and was emotionally abusive. A year after they first got married, she said he pulled her out of the shower by her shoulders so he could yell at her.

A third woman, who contacted Holderness and Willoughby in 2016 claiming to be a girlfriend of Porter’s, said he also abused her.

Porter publicly re-emerged in March when he wrote an op-ed for The Wall Street Journal praising Trump’s trade policies. The Wall Street Journal did not acknowledge why Porter left the administration. In response, Willoughby wrote in The Washington Post that although she supports rehabilitation for men who commit intimate partner abuse, “Rob has yet to publicly show regret or contrition for his actions. Giving him a voice before he has done that critical work elevates his opinions above my and Colbie’s dignity.”

Steve Bannon

Steve Bannon, who led Trump’s presidential campaign and served as White House Chief Strategist for the first seven months of Trump’s term, faced charges of domestic violence in 1996.

According to police department documents published by Politico shortly before the 2016 election, while Bannon was seated in the driver’s seat of his car, he grabbed his wife’s wrist and “pulled her down, as if he was trying to pull her into the car over the door.” He then “grabbed her neck, also pulling her into the car.” When she escaped and went inside the house to call 911, Bannon allegedly took the phone from her and threw it across the room, which she said later found in pieces. The police officer who responded to the incident wrote that “she complained of soreness to her neck” and “I saw red marks on her left wrist and the right side of her neck.”

Bannon was charged with misdemeanor domestic violence, battery, and dissuading a witness. The case was later dismissed. His ex-wife said in a divorce filing that Bannon persuaded her to leave town and told her that if she went to court, he and his lawyer would “make sure that I would be the one who was guilty.”

Bannon left the administration in 2017, but many of the policies he pushed for are still in place.

Andrew Puzder

Trump nominated Andrew Puzder for secretary of labor, but Puzder dropped out after a video resurfaced of his ex-wife, Lisa Fierstein, appearing on a 1990 episode of The Oprah Winfrey Show called “High Class Battered Women.”

“Most men who are in positions like that don’t leave marks,” Fierstein said on the show.
“The damage that I’ve sustained, you can’t see. It’s permanent, permanent damage. But there’s no mark. And there never was. They never hit you in the face. They’re too smart. They don’t hit you in front of everyone.The judicial system would say that. Were there any witnesses? No, come on. They know better.”

After Politico reported the story, Fierstein sent a letter to members of the Senate Health, Education, Labor and Pensions Committee in February. She said she regretted leveling abuse charges against Puzder and going on television.

“What we should have handled in a mature and private way became a contentious and ugly public divorce,” Fierstein said. The attorney who represented her at the time, Dan Sokol, said that Fierstein described an “ongoing pattern with several episodes of physical violence.”

Although Politico reported in 2018 that Puzder would possibly be offered a new White House role, there have been no new reports that he is under consideration for joining the Trump administration.

Steven Muñoz

The Trump administration hired Steven Muñoz for a State Department job as assistant chief of visits, which he began in January 2017. Muñoz was tasked with organizing visits for foreign heads of state, and sometimes their meetings with Trump himself.

According to a ProPublica story published in 2017, five men who attended The Citadel military college said Muñoz sexually assaulted them. One student said he woke up to Muñoz on top of him and said Muñoz kissed him and grabbed his genitals. More than a year after he graduated, Muñoz was banned from campus.

In 2012, BuzzFeed News and Huffington Post also reported on the allegations against Muñoz.

Muñoz, who previously worked for Mitt Romney and Rick Santorum’s presidential campaigns, still lists himself as assistant chief of protocol for visits on his LinkedIn page.

President Trump

Trump has been accused of multiple incidences of sexual predation stretching back to the 1970s — many of which line up with the behavior toward women that Trump himself has described engaging in.

“You know I’m automatically attracted to beautiful—I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait,” Trump said in a 2005 tape for Access Hollywood that was published just a few weeks before the 2016 election. “And when you’re a star, they let you do it. You can do anything. Grab ’em by the pussy. You can do anything.”

At least 23 women have come forward with allegations of Trump’s sexual misconduct, many of whom decided to publicly come forward during his presidential campaign. They include a woman who says Trump touched her vagina through her underwear at a nightclub, a woman who says Trump forcibly kissed her during a brunch at Mar-a-Lago, and many other women who say Trump groped and kissed them without their consent.

Trump picks who perpetuate systems of violence and abuse

There are many other Trump nominees and hires who have not personally been accused of sexual harassment, sexual violence, or intimate partner abuse, but who have nonetheless enabled a culture that condones it.

Labor Secretary Alex Acosta — Trump’s second pick after Puzder — signed a secret plea agreement with billionaire sex offender Jeffrey Epstein while serving as U.S. attorney for southern Florida. In February, District Judge Kenneth A. Marra ruled that Acosta’s decision to not make Epstein’s accusers aware of the plea deal was unconstitutional. A House appropriations panel grilled him about the deal in April, but Acosta continues to lead the department.

In 2018, the White House hired Bill Shine, a former Fox news executive, as the president’s top communications aide. Shine landed in the Trump administration after leaving Fox News amid a sexual harassment scandal at the network. He was accusedof trying to cover up a culture of harassment at Fox and mishandling allegations.

Lt. Gen. H.R. McMaster, whom Trump chose as his national security adviser in 2017, was also accused of mishandling a sexual assault case. After the Army investigated the incident, McMaster received a rebuke in 2015 for his oversight of the situation.

Barry Myers, whom Trump nominated in 2017 to lead the National Oceanic and Atmospheric Administration, was the chief executive of a family weather company called AccuWeather. An investigation into AccuWeather conducted by the Office of Federal Contract Compliance Programs found that the company subjected women to sexual harassment, and the company paid $290,000 as part of a settlement. Myers’ initial nomination to head NOAA expired after the Senate failed to confirm him last year, but he’s now up for the same position again.

This article was originally published at ThinkProgress on April 9, 2019. Reprinted with permission. 

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

Reports of Klobuchar’s treatment of staff highlight poor workplace standards on Capitol Hill

Wednesday, February 27th, 2019

Sen. Amy Klobuchar (D-MN) has come under intense scrutiny this month, as several media outlets have reported on her reputation as a bad boss, highlighting instances of alleged abuse against staffers. The media coverage points to a broader problem, however, as labor experts say workplace standards on Capitol Hill need to be reformed.  

Klobuchar, a Democratic candidate in the 2020 presidential race, has reportedly thrown binders and telephones at staffers, engaged in office-wide shaming of employees, and called prospective employers to hurt staffers’ opportunities elsewhere. Sources told The New York Times thatworkers who took parental leave were then required to stay in the office three times as many weeks as they took leave or pay back the money they earned during their leave (though a spokesperson from Klobuchar’s office said that policy had never been enforced and would be officially changed in the staff handbook). Her office also has one of the highest rates of staff turnover in the Senate, according to the Huffington Post.

Klobuchar’s staff (present and former) have pushed back against some of the claims — notably on the office’s paid leave policies — and Klobuchar herself has said that she simply has high expectations for herself and her staff.

But a lot of Klobuchar’s behavior reportedly goes back a decade, and only received considerable media attention after she announced her presidential bid.

So the bigger question is this: Is the type of behavior that has recently been reported simply tolerated on Capitol Hill — and if so, why?

Experts on labor and staffing issues on Capitol Hill say that, on the Hill, the culture is centered on employer loyalty. There are few opportunities for accountability, regardless of whether the problem is centered on a member of Congress or a someone like a chief of staff, and workers are often left on their own in abusive work environments.

Meredith McGehee, executive director at Issue One, a cross-political reform group, said that there is very little guidance on the human resources on Capitol Hill.

“Standards and operations on the pure human resources side vary tremendously, and things that in corporate America would either be considered inappropriate or just standard operating procedure don’t exist on Capitol Hill for the most part,” she said. “One of the things that has happened over several years is that some of those offices — the Library of Congress, the police, Architect of the Capitol, and those who aren’t in the representatives’ offices — have gone through a series of changes to address HR issues. The only people who were left out of that were the members and the staff and the committee offices themselves.”

Judith Conti, government affairs director at National Employment Law Project, said it’s particularly difficult to seek accountability when dealing with anyone in any kind of political office because a reference is required and elected officials are difficult to remove from their position.

“My first job out of law school was for a lifetime-tenure federal judge who was extremely abusive to staff in incredibly well-known ways, and people put up with it because there wasn’t anything you could say to anybody that was going to get him removed from the job,” she said. “It’s not like when you’re working for a private corporation and then your boss sexually harasses you and, if you complain to HR and it’s founded, that person will be fired.”

“An elected official or a lifetime-tenured judge, these aren’t people who are getting fired through conventional means and they are people who, when they give you a good recommendation it’s very prestigious.”

The complicated process of reporting violations

Brad Fitch, the president and CEO of the Congressional Management Foundation, which provides training for congressional staff and conducts research, said it’s interesting that Congress does not have an HR department and instead has various structures to deal with things like workplace abuse and sexual harassment.

Congress recently overhauled its policies on sexual harassment, reforming the Congressional Accountability Act of 1995 to mandate climate surveys and annual public reports on data on awards and settlements. 

Still, the process right now is complicated. For certain violation claims, including bad behavior that is allegedly targeted by race, sex, or age, there’s a multi-step dispute resolution. This process will change on June 19 under the CAA Reform Act and more information on that process will be rolled out soon. Until then, the worker has to file a request for counseling with the Office of Congressional Workplace Rights (OCWR) within 180 days of the violation. After the counseling — which involves informing workers about their rights — if the worker wants to continue with the claim, they must request mediation within 15 days. If the other party doesn’t agree to mediation or if mediation doesn’t resolve the claim, they can move forward with an administrative hearing or file a lawsuit in federal district court. The worker must do this within 90 days after the mediation.

“It’s not just about changing the global culture on Capitol Hill. You have to change 535 cultures, and that’s hard.”

Under the new changes, mediation will be optional and and mandatory counseling will be eliminated. A worker can confidentially seek consultation and assistance from the office and a confidential adviser may help assist in drafting a claim.

Laura Cech, spokesperson for OCWR, said that depending on the situation, workers can seek resources with ethics committees, employee assistance programs, and legal assistance from the Office of Employee Advocacy. OCWR has provided a list of legal organizations and attorneys for employees and employers looking for legal representation.

Cech said that not all workplace disputes and situations allege a violation of the CAA and workers can try to resolve issues through an internal grievance process or talk with their employee assistance program. An example of something that would go through that process is bad behavior because of race, sex, or age.

And regardless, a broader culture change is just as key as the HR resources being in place.

“Whether the culture encourages that reporting is an entirely different question and frankly on some levels more important than the formal structure,” Fitch said. “… You have 535 small businesses on Capitol Hill and each one of these offices is a culture unto itself. It’s not House Republicans or Senate Republicans… It’s not just about changing the global culture on Capitol Hill. You have to change 535 cultures, and that’s hard.”

A culture of high turnover

The high turnover that results in a bad boss reputation isn’t good for the public interest either, McGehee said. When staff with expertise leave, one result is that members of Congress don’t ask good questions. McGehee cites last year’s Facebook hearings, where members of Congress often embarrassed themselves when they asked questions that showed they didn’t understand the most basic facts about how social media operates.

“Whether the culture encourages that reporting is an entirely different question and frankly on some levels more important than the formal structure.”

“The members looked terrible in those hearings — and a member’s capacity to represent their constituents and really grasp and handle a policy on this wide range of issues, it is largely dependent on staff,” she said. “Two things happen when you don’t retain staff. First of all, you don’t have that expertise and gravitas, people who know what they’re doing. And the other part of that is when you have a lot of staff turnover, whether you’re in a personal office or in a committee, K Street-types can run circles around these folks.”

She added, “I’ve seen a number of occasions where, where you put this comma, how you describe this thing, can totally change the impact of the bill. And if you’re inexperienced, you don’t know that. You have no clue and it’s a real problem … if you don’t have deep knowledge of an issue it can be very difficult to understand the impact of what it is you’re trying to put together.”

McGehee said that since a chief of staff is usually hired not for their managerial skills, but for, say, their knowledge of the district, it is particularly important for them to have standards to follow. Fitch also agreed that there are huge barriers to getting staff to attend trainings on the proper management of offices.

“The challenge is both the structure and the culture does not lend itself to professional development on Capitol Hill,” he said. “An entry level employee at Burger King gets more training than a House chief of staff for their job, which is kind of sad but that’s true.”

In February, his organization hosted a training for about 50 managers on helping workers with managing expectations, being self-aware, and avoiding inappropriate behavior that offends people.

Part of the problem, Fitch said, is that staffers tend to ignore office processes until there is a huge problem that forces their attention to it.

“An entry level employee at Burger King gets more training than a House chief of staff for their job, which is kind of sad but that’s true.”

“These people didn’t come to Capitol Hill to be better managers. They came here to pass health care legislation or tax cuts and the end result drives everything,” he said. “I have to constantly remind my staff we are not the most important thing to Congress — until we are. Then you get that office that is running into problems because of sniping between the district office and D.C., or a chief of staff is killing morale, or a member is killing morale. It’s a challenge and usually when it gets to that kind of state is when we are pulled in.”

Fitch said he does believe that things on the Hill are improving. There have been recent changes following major harassment scandals in Congress, such as a mandated sexual harassment training. Fitch said House is also offering a new program that will help staffers learn about management and legislative research and communications.

What’s the solution?

For the sake of retention, as much as workers’ rights, Congress needs to create a healthy workplace environment beyond just the guarantee that bosses won’t shame you or throw things in the office, Fitch said. He added that retention could be improved by giving workers more incentives, such as tuition assistance or more frequent pay periods. (Currently, House staffers are only paid once a month.) A LegiStorm analysis found that the number of staffers in their 40s has declined from more than 14 percent of all staff in 2001, to just over 9 percent today.

Congressional staff are also not allowed to unionize, which would help introduce more protections for workers and possibly curb abusive behavior. McGehee said unionization in members’ offices is “considered kind of a radioactive topic” on the Hill on both sides of the aisle.

Unionization can make a difference, however. Conti said that, currently, in any sector, unless the workforce is unionized and tries to enforce certain standards of conduct, it’s tough to hold people accountable for workplace abuse that isn’t targeting someone by gender or race or another protected class. A reputation for being an abusive boss, even in severe circumstances, isn’t usually enough to push someone out of office or prevent them from consideration for government office.

Conti said, “There’s nothing illegal in most circumstances. If you’re working in a unionized workforce, that’s one thing. But there’s nothing illegal in being, as people in my field colloquially refer to as, an equal opportunity offender. You’re awful to everybody so it’s not like you’re discriminating against anybody. It’s inhumane. It’s immoral. It’s unethical. But it’s not illegal.”

“We make harassment on the basis of protected classes illegal, but could we fashion some sort of right to be free from harassment on the job irrespective of a protected characteristic?”

There are often gender differences in who is targeted, however. A 2017 survey of 1,008 adults found that almost 60 percent of U.S. workers are affected by workplace bullying. Seventy percent of those bullies were men and 60 percent of their targets were women. Additionally, the survey found that women bullied other women more often than men.

Conti said a worker could use a civil tort called intentional infliction of emotional distress. A worker could also pursue a workers compensation claim if there are severe mental health consequences. But these are often hard cases to make.

“That’s where if somebody treats an employee in such a way that it is just outside the bounds of reasonableness and the person suffers severe mental anguish as a result of it, then that is illegal, but it’s damn near impossible to prove,” Conti said.

She referred to a case in which someone knowingly falsely accused a worker of stealing things from their employer in order to get them fired — but the case still wasn’t severe enough to rise to the occasion of intentional infliction of emotional distress.

“It really has to be above and beyond, like shrieking and humiliating people and being mercurial and changing the rules all the time, so you really have to think through, is there some sort of harassment?” she said. “We make harassment on the basis of protected classes illegal, but could we fashion some sort of right to be free from harassment on the job irrespective of a protected characteristic?”

McGehee said that without ensuring accountability, implementing better office practices and standards, and addressing what she calls the “blood oath” of loyalty on the Hill, staffers are left to deal with toxic workplaces on their own.

“You’re pretty much in the world saying, ‘I guess my career on the Hill is gone. My career on K Street is not good, since they will probably say no one wants to talk to me.’ So you may as well leave Washington …There’s nobody to go to.”

This article was originally published at ThinkProgress on February 27, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering education and labor issues. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.

Walmart patents technology to eavesdrop on workers

Monday, July 16th, 2018

Walmart has just patented surveillance technology which would allow it to eavesdrop on worker’s conversations and help monitor them to ensure they meet the company’s “performance metrics.”

The “Listening to the Frontend” system would collect audio data from the stores’ cashier areas, allowing it to pick up everything from beeps to conversations with customers to, potentially, conversations between workers.  It would then analyse the sounds to ensure the employee is working efficiently — and help Walmart achieve “cost savings” and “guest satisfaction.”

“We’re always thinking about new concepts and ways that will help us further enhance how we serve customers,” a Walmart spokesperson told Buzzfeed News, who first reported the story. “We don’t have any further details to share on these patents at this time.”

It’s unclear when, or even if, Walmart will ever actually introduce this technology. But it is another example of how corporate giants are using technology in an attempt to track and control their workers — despite evidence showing that excess surveillance makes workers feel nervous and actually ends up slowing them down.

Amazon — whose profits topped $3 billion in 2017 — recently patented wristbandswhich can precisely track where its warehouse workers are, and point them in the right direction via vibration. In 2013, the Financial Times also documented how Amazon workers’ personal sat-navs set target times for them to shelve packages, and reports them to management if they’re behind schedule.

The surveillance isn’t just relegated to Amazon’s warehouses either. A 2015 New York Times story documented a similar Big Brother-esque atmosphere at Amazon’s corporate headquarters in Seattle. In a rare internal email, CEO Jeff Bezos pushed back on the article, saying it “doesn’t describe the Amazon I know or the caring Amazonians I work with every day.”

Uber’s instant rating system is similarly stressful on workers, punishing drivers who fall bellow a 4.6.

Unsurprisingly, being constantly tracked and asked to meet robot-like targets is having a devastating effect on workers. The British GMB trade union previously warned that the kinds of “regimes” Amazon employers worked under were causing them to have musculoskeletal problems as well as stress and anxiety.

“It’s hard, physical work, but the constant stress of being monitored and never being able to drop below a certain level of performance is harsh,” Elly Baker, GMB’s lead officer for Amazon, said. “You can’t be a normal person. You have to be an above-average Amazon robot all the time.”

This article was originally published at ThinkProgress on July 12, 2018. Reprinted with permission.

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

What to do when your work problem isn’t a legal issue

Wednesday, May 9th, 2018

A boss starts cancelling your check-ins after you give them feedback. A co-worker routinely undermines and interrupts you during meetings. You’ve been passed over for a promotion twice. Even after speaking to a lawyer, you’re not sure what to do.

Every day, across every workplace in America, people face challenges that don’t necessarily fall into a legal category. Instead, they fall into a vast gray area where solutions are rarely black and white. These issues–while not legal in nature–affect how we show up at work, and can have a lasting impact on a career. In a recent study, over 95 percent of people surveyed faced at least one challenging situation at work. Half left their job as a result.

Meanwhile, resources to help people navigate these challenges haven’t evolved to meet the needs of our vibrant, dynamic, and diverse workforce. Employee-provided resources are largely distrusted. Nearly 80 percent of people surveyed had never used a service provided by their employer. Moreover, the rapid growth of the gig economy often leaves employees feeling even more isolated. When people don’t get the support they need they’re more likely to take a step back in their career or leave their job without having another lined up.

Empower Work is a new resource that fills this gap by putting employees first. We provide free, anonymous, and immediate support for people facing non-legal work issues. Anyone can text 510-674-1414 and connect to a vetted and trained peer counselor within minutes.

Our approach is rooted in inquiry and empathy. We provide the space to talk about your experience and work toward an outcome that feels right to you. Our goal is for people to leave the conversation feeling empowered with the tools and support they need to move forward. Over 90 percent of people say they feel better after talking to an Empower Work peer counselor.

“Thank you for being [there] for me in the midst of a truly horrible, awful, depressing work situation. You helped me figure out my next steps.” -Empower Work Texter

Our peer counselors are working professionals who volunteer their time to support people through their most difficult experiences at work. They are leaders, coaches, mentors at every stage of their careers. Peer counselors undergo a selection process and receive hands-on training that blends best practices in coaching, counseling, and business.

We believe everyone should have access to support for tough work issues. What’s tough varies from person to person. You might be grappling with the decision to take a pay cut to pursue a dream job; questioning whether your company’s values are aligned with your own; or need support preparing for a big performance review. Next time you’re facing a difficult situation or decision at work remember you’re not alone.

Having a non-legal work issue you’d like to chat about? Text: 510-674-1414. Peer counselors are available Monday-Friday, 8:30am-8:00pm PT. To learn more visit www.empowerwork.org.

About the Author: Lauren Brisbo is a social impact communications professional with over a decade of experience. She’s worked with a range of nonprofits, businesses, and government agencies to launch communications initiatives that win hearts and minds, give a voice to those less heard, and help people make well-informed decisions. She’s passionate about helping organizations promote good causes externally, and creating supportive internal work environments that help employees thrive. Lauren currently leads communications and outreach for Empower Work, a free, accessible, and immediate text hotline for anyone facing a tough issue at work.

She gave the President the finger. Employer gave her the boot.

Thursday, April 19th, 2018

Juli Briskman was on her own time, riding her bicycle, when President Trump’s motorcade drove by. She expressed her personal feelings with a middle finger salute, not realizing that a news reporter had captured her gesture on camera.

She abruptly lost her job after the photo went viral on social media. Her employer, a government contracting firm, feared the Trump administration would retaliate by withholding or not renewing contracts. She has sued for wrongful termination.

Did her employer’s action violate her rights?

Briskman was forced to resign in November 2017. She has now filed a lawsuit against her employer, citing violation of her civil rights. There are limits on free speech in the workplace. But she wasn’t in the workplace. When she “flipped the bird” at the president and his motorcade, she was doing so as a private citizen.

Giving someone the finger, however uncouth it may seem, is protected speech under the First Amendment. Employers do have some leeway to discipline or fire workers if they badmouth the company or if their personal conduct violates a corporate policy.

Briskman is claiming that she was fired as a sacrificial lamb. Her employer, Akima, has government contracts. The company has not claimed that her speech violated policy or offended her co-workers. Rather, she contends the company terminated her to avoid the wrath of the White House. The stated reason for her forced resignation was that the company could lose out on lucrative contracts if she were retained. In other words, the company retaliated against her before the president could retaliate against the company.

Can an employer pre-emptively terminate a worker for what might happen?

Ms. Briskman would likely still have her job if she had given the finger to anyone other than the president of the United States. And perhaps if it had been any other president. Maybe management was pressured by the White House through back channels. Maybe they just weren’t taking any chances.

The question for the court, or a jury, will be whether Akima was within its rights to take adverse employment action against an employee for (a) private speech that could (b) potentially but not necessarily affect its future contracts.

“Working for a company that does business with the federal government should never limit your ability to criticize that government in your private time,” Briskman has stated.

This unsettled legal issue will likely come up again

In the age of social media, clashes between free speech and employment are increasingly common. What you post on Facebook or Instagram on your free time may be visible to your bosses. Anyone with a cellphone can capture your strong words or rude gestures and make you suddenly (in)famous on the internet.

It will be interesting to see where this lawsuit goes. Do you think political speech or personal opinions while you are off duty should be protected? Or should employers be able to fire workers for free speech that results in backlash against the company?

This blog was originally published at the Passman & Kaplan blog on April 18, 2018. Reprinted with permission.

About the Author:  Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Slate column asks readers to see the ‘upside’ of sexual harassment in the office

Thursday, December 7th, 2017

Two months ago, a wave of allegations against movie producer Harvey Weinstein opened the door to a reckoning. In recent weeks, victims have spoken candidly about their abuse at the hands of powerful men, including Charlie Rose, Mark Halperin, Sen. Al Franken (D-MN), Rep. John Conyers (D-MI), and Roy Moore, just to name a few.

When one woman used the hashtag #MeToo to share her own experience, there were more than 12 million Facebook posts and comments with the same tag within just 24 hours.

For the first time, some (though certainly not all) abusers are facing consequences, being fired from jobs, having their shows pulled off the air, being removed from films. Women, newly assured they are not alone, are telling their stories more often and more publicly than ever before.

On Tuesday, Slate published another example of a powerful person abusing that power and thus endangering women in the workplace.

“When I was 23 years old, my boss would look down the gap at the waistband of my jeans when he walked past my desk,” Slate’s executive editor Allison Benedikt wrote. “I was an entry-level fact-checker at my first magazine job, and he was an older and more powerful editor. My career, at the time, was in his hands.”

The essay, at its start, reads like a lot of the personal stories women have bravely shared in recent weeks. Benedikt, one suspects, is adding her voice to that chorus. Instead, she goes on to describe how her boss asked her out for a drink one night at a “dark bar,” which led to more dates, a kiss, and, eventually, a marriage and three children.

Benedikt, understandably, writes that she has been thinking back about the origins of her marriage in recent weeks. But she goes on to use her personal experience to diminish the experiences of women bravely coming forward and pushing us, as a culture, to address the tight grip of rape culture on all facets of our lives, including and especially the workplace.

Benedikt writes that she has heard how horrific allegations of sexual assault and harassment have piled up alongside what she calls “murkier stories of older men ‘forcibly kissing’ younger women who didn’t want to be kissed, men planting ‘unexpected’ kisses on female colleagues, [and] men being ‘creepy AF’ in Twitter DMs.”

That Benedikt is so quick to write off the experiences of other women, to think that only horrific assaults are the problem, is dangerous. By writing it, Benedikt — and Slate, by choosing to publish it — is endangering the women in her workplace.

As the executive editor of a large publication, she’s signaling, from a powerful position in a large newsroom, that she’s comfortable writing off reports of unwanted advances as “murky.”

And her only justification for doing so is her own experience. Benedikt wonders in the essay, had she not been interested in her husband’s advances, would that have been harassment? Was it harassment even though she was, because he was her boss?

She answers those questions, writing, “Today, many people seem to think the answer is yes.” Because it is.

It was all okay, in her eyes, because she was attracted to her then-boss and future husband. But “attraction” is not the currency of harassment. Power is.

Last week, NBC fired Today Show host Matt Lauer following sexual harassment complaints from women at the network. Former talk show host, Celebrity Apprentice contestant, and current Fox News contributor Geraldo Rivera defended Lauer on Twitter, tweeting, “News is a flirty business.”

The tweet — rightfully — set off a firestorm of criticism and Rivera eventually apologized. But on Tuesday, when Benedikt made the same argument, dressed up by a “liberal” outlet, she was showered with praise. Her essay was ripe with the same incredulous tone as an Associated Press story from Monday headlined, “In wake of Weinstein, men wonder if hugging women still OK.” How, the men and Benedikt ask, can we find love now? How can we find sex now? Will we be reprimanded, even fired, for workplace interactions that used to seem okay?

Benedikt is asking the wrong questions. She ought to ask: What about women who don’t reject advances from their boss out of fear of retribution — a desire to please their boss to keep their job?

Many people, in the midst of the reckoning, have looked back at previous interactions in a new light, perhaps reconsidering whether both parties consented or whether it crossed a line. But Benedikt’s essay reads as a justification for the origins of her marriage and a public declaration that, despite holding a prominent role in a prominent newsroom, she is sympathetic to powerful men crossing lines with young women whom they supervise.

It’s a public declaration of how Benedikt may handle a report of sexual harassment in the workplace. She may say, as she wrote in her column, “[W]e all make each other uncomfortable sometimes, particularly when sex and attraction are involved.”

The reckoning is bringing with it new standards: Don’t look down the gap at the waistband of your employee’s jeans when you walk past. Don’t abuse positions of power. Treat women like they’re people.

The new rules are not complicated, but for so many people, even “liberals” and women, those standards—unbelievably—seem too high. Choosing to declare as much from a position of power isn’t adding anything to the conversation. It’s dangerous.

This piece was originally published at ThinkProgress on December 6, 2017. Reprinted with permission. 

About the Author: Addy Baird is a reporter for ThinkProgress on the news cycle team. Previously, she covered local politics and health policy at POLITICO New York and worked for The Charlie Rose Show digital team.

What Do Roger Ailes & Charlie Sheen Have in Common? Both Wanted to Hide Alleged Abuse of Women

Friday, July 15th, 2016

paulblandLast week, longtime Fox News anchor and host Gretchen Carlson filed a lawsuit against Roger Ailes, the chairman of Fox News, alleging that he sexually harassed her in the workplace. Within a day, Ailes and his lawyers asked a court to force the case into arbitration, under a special gag order that would block anyone from publicly disclosing any of the evidence in the case or the outcome of the arbitration.

The lawsuit alleges that Ailes sabotaged Carlson’s career after she “refused his sexual advances and complained about severe and pervasive sexual harassment.” Her complaint, which can be found here, alleges that her time at Fox News was riddled with Ailes’s inappropriate references to his own sexual history and marital issues and juxtaposed with a vocal interest in Carlson as a sexual partner. Ms. Carlson further alleges that Ailes used his power against her when she denied his advances, taking several steps that culminated in her being dismissed.

According to Fox News and Ailes, none of this is true. But instead of welcoming the chance to vindicate themselves in court, they want to move the case to a secret arbitrator.

Just Like Charlie?  Just after the news came out that Charlie Sheen was HIV positive, and he publicly admitted having unprotected sex with at least a couple of partners after his diagnosis, another revelation was widely reported: he’d been requiring visitors to his home to sign arbitration clauses with confidentiality provisions. And Sheen admitted on TV that he had paid “millions” to settle claims relating to his HIV status. These revelations created a very serious possibility:  that the secrecy of his arbitration clause made it possible for him to engage in risky behavior, then pay off injured women in secret proceedings, and then repeat the whole thing. When you look at the contracts guests to his home were required to sign it’s sort of bizarre, but the upshot of the arbitration ploy was pretty much the same as it is in the Roger Ailes case: it’s a way for a powerful man to impose a shroud of secrecy over allegations of serious mistreatment of women.

And these are not the only two cases involving this kind of allegation. Today’s New York Times reports how Ailes’ effort to force Ms. Carlson into arbitration is reminiscent of the actions of the infamous former head of American Apparel, Dov Charney, who was able to force a number of cases involving allegations of sexual harassment into secret arbitration.

Secrecy as the Driving Force. From the perspective of an employee, there’s a lot not to like about being forced to sign an arbitration clause as a condition of keeping your job, or applying for a job. For one thing, as the Washington Post reported, a substantial scholarly study of many thousands of arbitration cases (and a comparable pool of court cases) discovered that workers are less likely to win cases in arbitration than they would be in court, and that when workers do recover some kind of award in arbitration, that their recoveries tend to be pretty dramatically lower than they would have been in court.

But in the Ailes case, there’s something else afoot as well. While arbitration is always far more shadowy than the public court system (it’s generally incredibly hard for a journalist or member of the public to get copies of pleadings or evidence put before an arbitrator, for example, unless one of the parties to the case send the materials to them; arbitrators often don’t issue public opinions; etc.), the Fox News arbitration clause has a specific and broadly written gag order that goes far beyond the typical arbitration clause. And in Ailes’ pleadings in a New Jersey federal court, trying to force the case into arbitration, he and his lawyers specifically complain that Ms. Carlson’s allegations have become a matter of widespread public discussion. The conclusion of Mr. Ailes’ brief stresses that arbitration is necessary to make sure that the case cannot “sully his reputation in public,” apparently without respect to whether the actual facts would justify harm to his reputation. The point is not a search for the truth and exoneration; it’s to shut Ms. Carlson up.

Hypocrisy About Transparency:  As a news organization, Fox has repeatedly called for transparency with respect to all sorts of allegations against important public figures.  For example, Fox is very jacked up to try to break up an alleged “cover up” with respect to Secretary Clinton’s emails. And Fox was extremely interested in trying to make sure that every fact came out about allegations of problems at the World Bank.

But when it comes to allegations that relate to their own chairman, they seem to be awfully keen on making sure that the evidence of the case – in moving it to arbitration – be kept secret from the public.  If the case proceeded in the public court system, by contrast, then the actual truth – whether it’s good for Ailes and Fox or not – would come out.

So What Happens Now? It turns out, as the New York Times explained in some detail, that there’s a good chance that Ailes’ strategy won’t work.  Ms. Carlson has a number of good arguments against the enforcement of the arbitration clause, perhaps most notably that Mr. Ailes is not a party to the arbitration clause or named in it.

But if Ailes does succeed, then not only is Ms. Carlson less likely to win her case, but the American public and women in the workplace will be the losers. Because once again, a powerful man accused of mistreating women in the workplace will have been able to sweep all of the facts about the dispute under the big rug of forced arbitration. It’s easy to see why every significant civil rights organization or group that advocates for workers strongly opposes the use of forced arbitration in the work place, and they all keep urging the Congress to ban these clauses.

This piece was co-written with Kenda Tucker, Communications Intern at Public Justice.

This blog originally appeared on dailykos.com on July 14, 2016. Reprinted with permission.

Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy. Follow him on Twitter: .

New Study Reveals Just How Brutal Meat and Poultry Work Is for Workers

Friday, May 27th, 2016

elizabeth grossmanThe meat and poultry industry remains exceptionally dangerous, despite a decline in reported injuries and illnesses over the past 10 years, according to a new Government Accountability Office (GAO) report. Further, says the report, the injury and illness rates reflected in Department of Labor numbers are significantly underreported. As a result, these figures do not fully represent what is actually happening within this industry that employs about 526,000—including many recent immigrants and noncitizens. The report also found evidence of workers being denied proper medical treatment on the job and that they often fail to report injuries for fear it will cost them their jobs.

Released Wednesday by Senator Patty Murray (D-WA), Senator Bob Casey (D-PA) and Congressman Bobby Scott (D-VA), the report notes that working conditions in the industry have not improved substantially since the GAO examined the industry in 2005. Workers in poultry and meat processing plants, says the report, “continue to face the hazardous conditions the GAO cited in 2005, including tasks associated with musculoskeletal disorders, exposure to chemicals and pathogens and traumatic injuries from machines and tools.”

“Today’s report makes clear that workers still face hazardous conditions that put their health and safety in jeopardy,” said Senator Murray on a call with reporters. “In our country every worker should be able to earn a living with dignity and without worrying that their work will make them sick or injured,” she said.

“The pain never really went away. It just went up my arms and elbows,” said former Nebraska meatpacking work Jose Gaytan on the call. “The work speeds of the plant were so fast that my hands would swell up and lock up,” he said. Gaytan described how the plant processed 1500 to 1800 head of cattle a day, so that each worker processed 250 to 300 “loins” per day—each about 80 pounds of “frozen cow meat and bones” —or almost one per minute. There were “falls slips, burns and cuts and crippling injuries to co-workers,” said Gayton. “I saw two different saw operators cut off fingers because the line was coming too fast,” he said.

Line speed is a huge problem in these plants where poultry workers typically handle 30 or more turkeys and 100 or more chickens a minute.

Omar Hassan, who worked at a Jennie-O turkey plant in Minnesota for over two-and-a-half years described how when he came back to work after a finger and shoulder industry with a doctor’s note saying he could not do the same level of work as before, the company refused to accommodate him. “I tried talking them into placing me on light duty,” he said. But the company refused, “and they fired me after that,” said Hassan, speaking on the call through an interpreter who translated from Somali.

Also contributing to the injury undercount, says the GAO, is that injuries and illnesses suffered by workers hired through labor contractors may not be properly accounted for. Contributing to these problems is the industry’s high turnover rate—“often 100 percent or more annually,” said Southern Poverty Law Center staff attorney Sarah Rich.

Poultry and meat plant workers often include “refugees, undocumented immigrants and prisoners,” said Rich. These workers, she said are “often fired and treated as disposable by these companies.” And all this contributes to “a climate of fear that prevents workers from speaking out,” she said.

Musculoskeletal disorders rampant in meat and poultry processing but underreported

The GAO also reports that injuries included in official records cover only those for which workers took time off. This means they fail to account for many of the musculoskeletal disorders that are widespread throughout the industry.

According to the Occupational Safety and Health Administration (OSHA), the U.S. Bureau of Labor Statistics has found that musculoskeletal disorders account for many of the injuries that create a serious injury rate for the meat and poultry processing industry that is more than 3 times higher than other U.S. industries. In a 2015 report, the National Institute of Occupational Safety and Health (NIOSH) found 81 percent of the poultry plant jobs it evaluated exceeded recommended limits for hand activity and that 34 percent of employees had symptoms qualifying as carpel tunnel syndrome.

“We should have no confidence about industry’s assertions about their injury rates,” says Celeste Monforton, professorial lecturer in occupational and environmental health at George Washington University’s Milken Institute School of Public Health. She describes a NIOSH investigation finding that a Maryland poultry plant logbooks showed only four cases of carpel tunnel syndrome over four years while NIOSH found 18 workers with those injuries at the same plant.

She also described an OSHA Alabama poultry plant investigation that found a worker who was seen 94 times by a company nurse before being referred to a physician for treatment. “The industry games the system,” says Monforton, explaining that first aid is not recorded in company logs.

Well-documented history of high hazard

“The GAO report reinforces and validates reports released by independent groups for over ten years,” says Rich, listing reports by the Southern Poverty Law Center, Oxfam America, by Alabama Appleseed, Northwest Arkansas Workers Justice Centerand others as well as investigations by NIOSH and OSHA.

“We uncovered many of the same issues the GAO has now confirmed. Workers have told us about the same conditions that the GAO detailed in their report today,” Oxfam America senior advocacy advisor Oliver Gottfried told reporters. In addition to denial of medical care, fear of retaliation, and lack of reporting on industry logs, Oxfam America has recently reported on how poultry plant workers’ are denied adequate bathroom bathroom breaks.

Speaking in Hmong, through an interpreter, a Tyson foods poultry plant worker called May, explained that the company only allows her to use the bathroom twice per night. “That is not enough for people,” says May, who works cutting meat. She also described how people who work close to meat get chemicals sprayed on their hands and face.

In stark contrast to the report’s details, the meat industry seized on the GAO report’s note of the decline in reported injury rates—from 9.8 cases per 100 workers in 2004 to 5.7 cases per 100 workers in 2013.

The report, “highlights the greatly improved worker safety record of the meat and poultry industry over the last 10 years,” said the North American Meat Institute (NAMI) in a statement. “There is always room for improvement and we will look closely at the GAO recommendations to see how they can best be implemented in the industry,” said NAMI president and CEO Barry Carpenter.

“We are pleased to see the report emphasizes the fact that injuries and illnesses have decreased dramatically in the poultry processing industry over the past several years,” said the National Chicken Council in its statement. “Perhaps more than any other industry, the poultry industry has focused its energies on the prevention of workplace injuries and illnesses, especially musculoskeletal disorders (MSDs) like carpal tunnel syndrome,” said the council.

So what happens next? 

Sen. Murray voiced support for OSHA’s new rule that will provide workers with more protection from retaliation against injury reporting and improve OSHA’s access such records. “In our country every worker should be able to earn a living with dignity and without worrying that their work will make them sick or injured,” said Murray.

“We’re taking it to the public,” Berkowitz tells In These Times. “Consumers have a tremendous influence on this industry,” she says. “We are hoping consumers are starting to take a look … at the inhumane conditions of workers and that industry has to respond by lifting standards.”

And Gottfied says reporting on industry conditions is already prompting workers to seek help in speaking out about workplace health and safety.

This blog was originally posted on inthesetimes.org on May 27, 2016. Reprinted with permission.

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Mother Jones,Ensia, Time, Civil Eats, The Guardian, The Washington Post, Salon and The Nation.

Woman sues Walmart after being told to 'choose between her career and her kids,' then fired

Monday, January 18th, 2016

Women filing discrimination lawsuits against Walmart are nothing new. Walmart firing people for questionable and controversial reasons is also nothing new. Now a woman is suing the low-wage retail giant, saying she was fired after complaining about discriminatory treatment. Specifically, Rebecca Wolfinger says her boss told her she had to “choose between her career and her kids.”

Wolfinger’s suit focuses on what she claims was her mistreatment while working as a shift manager. She was being required to work seven days a week when she received the “career or kids” threat, she contends.

Other male shift managers weren’t on a seven-day work schedule, Wolfinger claims. Her February 2012 firing occurred after she reported her boss’ comment to a company human resource officer, the suit states.

Wolfinger was officially fired, she says, for selling Pampered Chef outside of work—but coworkers who engaged in similar activities weren’t fired. And of course a sophisticated company like Walmart doesn’t admit to having fired someone for complaining about illegal discrimination.

Several years ago, 1.5 million women who worked or had worked at Walmart attempted a class action lawsuit against the company, only to have the Supreme Court say that “[e]ven if every single one of these accounts is true, that would not demonstrate that the entire company operate[s] under a general policy of discrimination.” That’s despite evidence like this:

Many female Walmart employees have been paid less than male coworkers. In 2001, female workers earned $5,200 less per year on average than male workers. The company paid those who had hourly jobs, where the average yearly earnings were $18,000, $1.16 less per hour ($1,100 less per year) than men in the same position. Female employees who held salaried positions with average yearly earnings of $50,000 were paid $14,500 less per year than men in the same position. Despite this gap in wages, female Walmart employees on average have longer tenure and higher performance ratings.

Doubtless all just a coincidence, though. Just like Rebecca Wolfinger was coincidentally fired for something that other workers did after she reported being discriminated against.

This blog originally appeared in dailykos.com/blog/labor on January 13, 2016. Reprinted with permission.

Laura Clawson is the Daily Kos contributing editor and has been since December 2006.  She has also been the labor editor since 2011.

Thanks to Labor Board Ruling, You Can Now Use Company Email to Organize a Union

Wednesday, December 17th, 2014

This week, the National Labor Relations Board (NLRB) issued a decision and a rule that could make organizing a union significantly easier for American workers.

First, yesterday the Board recognized that email is one of the primary ways that workers communicate, and that its case law and election rules needed to reflect this reality. The NLRB issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes—and admitted that it had misunderstood in previous cases how email works. In doing so, it overturned a Bush-era Board decision, Register Guard, which allowed employers to prohibit use of company email for non-work related purposes, including organizing and union purposes, unless the employer can show special circumstances that justify specific restrictions.

In the 2007 decision, the Labor Board analogized email to other employer equipment—such as bulletin boards, telephones, photocopiers and televisions—and found that the employer had a “basic property right to regulate and restrict employee use of company property.” In dissent, Members Liebman and Walsh criticized the Board, stating that the decision “confirms that the NLRB has become the Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”

Recognizing the changing nature of the workplace, Liebman and Walsh explained that email was becoming the new water cooler, and that the Board fundamentally misunderstood how email systems work. In a passage that reads almost as if written by a millennial to her out of touch grandparents, the two members explained in basic terms to the Board majority the difference between emails and more traditional communication media: “If a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced. If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.”

Emails, they explained, were different, because many employees could use the system simultaneously, subject lines clue the employee into whether to read or dispose of the message, and the marginal cost for an email is almost zero.

Yesterday, the Board vindicated Liebman and Walsh’s dissent and held that the majority’s 2007 decision was “clearly incorrect,” and that it “undervalued employees’ core Section 7 [of the National Labor Relations Act] right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.” Therefore, employees who have access to work email can use the email system on nonwork time to discuss the terms and conditions of their employment and engage in other organization activity.

In correcting itself yesterday, the Labor Board finally recognized the central place that digital communications has in workers’ lives. The Board recognized that email is different than other employee equipment, and that most employers tolerate the personal use of employer email. Furthermore, the number of employees that “telework” has grown exponentially, with an expected 63 million employees teleworking by 2016. Recent surveys have found that approximately one third of employees report that their employer expects them to stay in touch outside of working hours and 69% frequently or occasionally check their email outside of normal working hours.

Taking these new realities to heart, the Board concluded that email was less like a photocopy machine as it was a “new natural gathering place and a forum in which coworkers who share common interests will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” In shifting from an equipment analysis to an analysis that recognizes emails as a basic form of communication, the Board finally recognized the ubiquity of emails and the ways in which employer limitations effect workers’ associational rights.

And the Board doubled-down on recognizing the realities of modern communications this morning in a much-anticipated final rule that significantly changes union election procedures. The new rule includes a number of significant benefits for workers who are organizing, including postponing employer litigation over union election issues until after the election takes place to eliminating the waiting period between the time when an election is ordered and when it occurs (the time when many bosses carry out their union-busting campaigns through tactics like firings or threats of closing down a workplace).

But perhaps the most overdue change is the modernization of the “Excelsior List” rules. Prior to today’s rule, employers were required to turn over to the union an Excelsior List, which contained the names and home addresses of workers within seven days after a union election is ordered, so that the union can effectively communicate with all the workers it seeks to represent.

The new rule requires the employer to also turn over any employee email addresses and telephone numbers it possess, and shortens the amount of time management has to turn over the list to two days.

The week’s decisions are two long overdue correctives and will hopefully restore some of workers’ basic rights on the job. Given the bad news for workers from the Supreme Court earlier this week, the correctives are certainly welcome.

This blog originally appeared in Inthesetimes.com December 12,2014. Reprinted with permission. http://inthesetimes.com/working/entry/17442/company_email_union

About the author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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