Outten & Golden: Empowering Employees in the Workplace

Seattle's $15 minimum wage raised pay with zero effect on restaurant jobs, new study shows

June 22nd, 2017 | Laura Clawson

Raising the minimum wage does not kill jobs, no matter what Republicans tell you—and a new study of the Seattle restaurant industry, where some businesses are already paying a $15 minimum wage, provides another data point showing just that. According to the University of California, Berkeley, study, the increased minimum wage had employment effects that were “not statistically distinguishable from zero,” which is a fancy way of saying “we looked and we could not find a damn thing.” The Seattle Times reports:

Indeed, employment in food service from 2015 to 2016 was not affected, “even among the limited-service restaurants, many of them franchisees, for whom the policy was most binding,” according to the study, led by Berkeley economics professor Michael Reich. […]

It can be hard to separate what impact the wage law had on employment in Seattle versus the effect of the city’s white-hot economy and tight labor market, but “we do our best,” Reich said.

The study compares the wage and employment growth rates in Seattle to a control group of counties, in Washington state and across the U.S., that had similar growth rates as Seattle in the years shortly before the minimum-wage law took effect.

A report issued last year found indications that the increased minimum wage did slightly restrict job growth, but we don’t know if the difference comes from differing methodologies or from the studies covering different time frames. Both studies have to contend with Seattle’s booming economy, which could conceivably mask lowered growth of the job rate for low-wage workers … but which itself refutes the Republican talking points against raising the minimum wage. Because “it’s hard to tell if even more low-wage workers would otherwise be employed because the economy is so darn good” does not exactly back up claims that having the minimum wage be a living wage will destroy the economy.

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The House GOP health care bill is a job killer, says a new report

June 21st, 2017 | ThinkProgress Staff

 In addition to potentially increasing the number of uninsured by 23 million and being unequivocally unpopular, House Republicans’ Obamacare replacement plan could leave nearly a million people unemployed.

That’s according to a new study published Wednesday by the Milken Institute School of Public Health at George Washington University and The Commonwealth Fund projects, which finds that the U.S. economy could see a loss of 924,000 jobs by 2026 if the American Health Care Act (AHCA) becomes law.

The study concentrated on coverage-related and tax repeal policies included in the AHCA. Some of the key provisions it said could add to job losses would:

  1. Phase out enhanced funding for Medicaid expansion by restricting eligibility in 2020, and imposing either a block grant or per capita caps.
  2. Replace premium tax credits with age-based tax credits. The premiums can be five times higher for older individuals, compared to the current threefold maximum.
  3. Allow states to waive key insurance rules, like community rating and essential health benefits. (The study does account for the Patient and State Stability Fund, a $8 billion grant meant to relieve states of high-cost patients.)
  4. Eliminate the individual mandate tax penalty and premiums hikes for people who do not maintain continuous coverage.
  5. Repeal numerous taxes and tax increases, like a tax on high-cost insurance (i.e. the “Cadillac tax”).

Short-term gain, long-term pain

Federal health funding stimulates the economy and job creation. Health funds pay hospitals, doctor’s offices, and other providers, and these facilities pay for their own respective employees and other goods and services, like rent and equipment. Health care employees and private businesses then use their earnings to purchase consumer goods like housing and transportation, circulating this money through the larger economy.

The GWU study found government spending or subsidies stimulate the economy more than tax cuts. Tax cuts do help, but only in the short term. The way AHCA is set up is that the tax cuts take effect sooner than federal funding cuts, which is why some states see net job growth by 2018. Then, when federal dollars are eventually pulled, states begin to see job losses by 2026.

Who’s most affected:

The employment rate among states that expanded Medicaid eligibility could disproportionately be affected, because those states received more federal dollars. New York, a state that expanded Medicaid, could be among the hardest hit with 86,000 job losses by 2026.

Between April 2016 and April 2017, New York added 76,800 jobs and the educational & health services sector saw the largest job gains, at 46,600 jobs. “The Affordable Care Act [ACA] contributed to that [growth],” Ronnie Kauder, senior research director at the New York City Labor Market Information Service, told ThinkProgress.

Kauder emphasized that the ACA wasn’t solely responsible for New York’s job growth, even in the health care sector. Uncontrollable factors like the state’s growing aging population and increasing life expectancy contribute to job growth as well.

New York has reaped the employment benefits of comprehensive health care, said Kauder. That’s in part because ACA encouraged states to test new models of health care delivery and shifted from a reimbursement system based on volume of services to value of services.

For example, New York received ACA grant funding to test effective ways to incentivize Medicaid beneficiaries, who struggle with chronic diseases, to participate in prevention programs and change their health risks. With that grant, New York created new programs at existing managed care organizations, which required new hires. The grant created positions like care coordinators, who connect and follow-up up with patients and providers in the program, said Kauder. “They are heavy on the training, but not licensed professionals,” she said.

But while she attributed some of New York’s job gains to the ACA, Kauder was skeptical that the GOP replacement plan would kill as many of them as the GWU study projects. “We don’t know what the state response will be,” he said. “It could be worse in Kentucky.”

The largest health care provider in New York, Northwell Health, hires on average 150 people a week. Northwell chief public relations officer Terry Lynam told ThinkProgress he doesn’t think the ACA directly contributed to a spike in job growth; however, it did help expedite the provider’s move from hospitals to outpatient care centers, also called ambulatory care, in an effort to slow rising health costs.

“What [ACA] has done was contribute to the ambulatory net growth [by cutting costs],” said Lynam. Northwell Health has 550 outpatient locations.

Northwell Health has qualms with the House GOP bill; specifically its cuts to Medicaid and change in coverage rules. “We are in a stronger financial position to survive that kind of reduction in revenue,” said Lynam. “But what about small providers serving low income areas, who need those Medicaid [dollars]?”

This blog was originally published at ThinkProgress on June 15, 2017. Reprinted with permission. 

About the Author: Amanda Michelle Gomez is a health care reporter at ThinkProgress.

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Fox News faces new legal trouble for sexual harassment

June 20th, 2017 | Laurel Raymond

The New York State Division of Human Rights (SDHR) is investigating Fox News for claims of sexual harassment and retaliation, according to attorney Lisa Bloom.

Bloom told ThinkProgress over the phone that a human rights specialist at the agency confirmed the investigation to her on Friday.

According to Bloom, the agency has spoken to one of her clients, Dr. Wendy Walsh, twice, and another of her clients, Caroline Heldman, once in the course of the investigation. The agency also wants to interview a third woman.

Bloom’s law firm filed a request for investigation with the SDHR on April 11th. Bloom told ThinkProgress she asked for the investigation because Fox has “the worst corporate culture I’ve heard of in 30 years as a civil rights attorney.”

“Over the past thirteen years, dozens of women have reported egregious sexual harassment and retaliation at Fox News, with new claims constantly coming to light,” the complaint says. “The company frequently pays women to remain silent and leave the company while the perpetrators and enablers keep their jobs. Others are scared into silence by the company’s well-documented intimidation tactics, including using its giant media platform to smear their reputations. Nearly all of the victims were not only driven out of Fox News, but the television industry entirely.”

The complaint says that since many of the victims signed confidentiality agreements or are barred by time-limits from bringing their complaints to the legal system, they cannot raise the issue with the SDHR themselves.

The SDHR did not immediately respond to ThinkProgress’ request for confirmation.

Bloom told ThinkProgress that a typical remedy for this sort of case would see the state entering into a consent decree with the employer. The employer would likely have to improve their grievance procedures and demonstrate compliance on a regular basis, anywhere from monthly to yearly.

According to Bloom, the process is “pretty intrusive” for the employer, and typically unwelcome.

This report signals a new wave in the network’s ongoing legal troubles, linked to what reports and allegations indicate is a pervasive culture of sexual discrimination.

Last year, former Fox News anchor Gretchen Carlson filed suit against the network’s then-CEO Roger Ailes, alleging sexual harassment and gender discrimination. The network eventually settled with Carlson for $20 million, but her suit opened the floodgates of women coming forward with their own allegations. The scandal led to Ailes’ resignation.

Then this year, the New York Times reported that the network had paid over $13 million over the years to quiet allegations of harassment by Fox News Host Bill O’Reilly. The report led to a spate of women going public with their stories, and ultimately to O’Reilly’s ousting from the network after advertisers abandoned his nightly talk show.

Taken in sum, however, the women’s stories indicate that the problem went beyond the alleged predilections of two of the network’s most powerful men. The allegations and reports paint a picture of systemic sexual harassment and a culture of gender discrimination within the network.

“It’s not about Roger Ailes. It’s about a culture,” Gabriel Sherman, who wrote the book on Roger Ailes and his role in the network, told NPR in July 2016. “And it was a culture where this type of behavior was encouraged and protected. The allegations are that women routinely had to sleep with or be propositioned by their manager in many cases, Roger Ailes, but I’ve reported on another manager who did this in exchange for promotions.”

Fox News has also retained the law firm Paul Weiss to conduct internal investigations of the harassment claims against Roger Ailes and Bill O’Reilly.

This piece has been updated with comments from Lisa Bloom. Judd Legum contributed reporting.

This article was originally published at ThinkProgress on June 19, 2017. Reprinted with permission. 

About the Author: Laurel Raymond is a general reporter for ThinkProgress. Previously, she was the ThinkProgress Editorial Assistant. Prior to joining ThinkProgress she worked for Sen. Patrick Leahy (D-VT) and was a Fulbright scholar, based in southeast Turkey. She holds a B.S. in brain and cognitive sciences and a B.A. in English from the University of Rochester, where she worked and researched in the university writing center and was a member of the Michael K. Tanenhaus psycholinguistics lab. Laurel is originally from Richmond, Vermont.

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Tell the Labor Department Not to Repeal the Persuader Rule

June 19th, 2017 | Kenneth Quinnell

The Labor Department issued a proposal on Monday that would rescind the union-buster transparency rule, officially known as the persuader rule, designed to increase disclosure requirements for consultants and attorneys hired by companies to try to persuade working people against coming together in a union. The rule was supposed to go into effect last year, but a court issued an injunction last June to prevent implementation. Now the Trump Labor Department wants to eliminate it.

We wrote about this rule last year. Repealing the union-buster transparency rule is little more than the administration doing the bidding of wealthy corporations and eliminating common-sense rules that would give important information to working people who are having roadblocks thrown their way while trying to form a union.

AFL-CIO spokesman Josh Goldstein said:

The persuader rule means corporate CEOs can no longer hide the shady groups they hire to take away the freedoms of working people. Repealing this common-sense rule is simply another giveaway to wealthy corporations. Corporate CEOs may not like people knowing who they’re paying to script their union-busting, but working people do.

If the rule is repealed, union-busters will be able to operate in the shadows as they work to take away our freedom to join together on the job. Working people deserve to know whether these shady firms are trying to influence them. The administration seems to disagree.

A 60-day public comment period opened Monday. Click on this link to leave a comment and tell the Labor Department that we should be doing more to ensure the freedom of working people to join together in a union, not less. Copy and paste the suggested text below if you need help getting started:

“Working people deserve to know who is trying to block their freedom from joining together and forming a union on the job. Corporations spend big money on shadowy, outside firms that use fear tactics to intimidate and discourage people from coming together to make a better life on the job. I support a strong and robust persuader rule. Do not eliminate the persuader rule.”

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

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A Day in the Life of a Day Laborer

June 16th, 2017 | Stephen Franklin

Come sunrise, the men fill the street corner, among them Luis, quietly sitting by himself, nurturing hopes for work today.

There was no work yesterday, nothing the day before and nothing for weeks.

Still, the 50-year-old Guatemalan, who didn’t want his last name used, waits in the growing heat, saying he has no other choice.

He waits even though he hates day labor work, because he says it is sometimes dangerous, barely enough to live on, and some of the men on the street corner have bullied and hurt him on the job.

The factory where he worked for almost a decade shut down a few years ago, he can’t find any work as a caregiver, and, he says, the factories aren’t hiring or they are shutting down.

He says he has papers to show he is a legal resident in the United States, but he suspects that many of the men standing around him don’t have that status.

That’s not the case for Carlos Sanchez, 70, and Gustavo Almaraz, 28, who are standing nearby. Carlos says he is Puerto Rican and Gustavo says he was born in the United States.

But they say that many workers lack papers and so they suffer. Often, the contractors who hire the men off the street corner “automatically think you don’t have papers,” explains Almaraz. And that’s a problem, because they want to take advantage of you. “Some of the people here (doing the hiring) are mean,” he adds.

The two also say they know how to take care of themselves.

Sanchez says he knows how to do a lot of jobs and how to deal with people, starting out decades ago as a migrant worker earning 35 cents an hour. And Almaraz says he has picked up enough skills that he can virtually take every job offered on the street corner.

“It’s all on you,” Almaraz explains. “You see a car coming in and you have to go up and say, ‘Hey boss, what do you need?’”

The secret is finding a good boss and somebody who needs you for a long time, he says. It also involves knowing, he says, when to walk away from someone who abuses you. “I had a good-paying job with an electrician, but he started to become disrespectful. He started to yell and insult me.”

Almaraz says he won’t work for less than $15 an hour, but surveys indicate laborers often earn minimum wages or less, and sometimes nothing. “Nobody can live on less than $100 a day,” Almaraz says.

Near them is a 65-year-old Mexican: a short, stocky, balding man, who says he has been doing day labor ever since coming to the United States without papers 12 years ago.

He hasn’t been able to find work and so he says he will take less than the others. “Sometimes they don’t pay. It’s very difficult. There is no work and everything is expensive,” he says in Spanish.

Time passes, and the men disappear from the street corner. Some are off to work, getting into the trucks and vans that pick them up.

As soon as someone pulls up onto the gasoline station’s street corner, the men rush them, huddling by the vehicle’s windows, bargaining furiously as they tout their skills. And some just wander off.

Not Luis. He sits waiting. Some jobs he won’t take.  “I have friends who were injured doing roofing, and they went home (to Guatemala) handicapped,” he says.

Not too long ago, he took a moving job with another worker. It was supposed to be an easy three-hour job. But the items they moved were so heavy, he sat at home for three days afterward, his hands shaking.

“A lot of people will do this work. They don’t speak the language so they have to. But I don’t have to,” he says.

He waits along with more than 100,000 others who gather daily on dozens of street corners across the United States, according to figures from 2006. It is a world, where workers are often cheated out of their wages, injured on the job and then left without medical care, according to a 2006 survey. Where workers who complain often suffer retaliation by employers who fire them, suspend them, or threaten to call immigration officials.

As the hours pass, Luis huddles in the scorching sunlight, watching out for anybody looking for a worker and a job he can do.

Most of the men are gone, but not him.

This article originally appeared at Inthesetimes.com on June 15, 2017. Reprinted with permission.
About the Author: Stephen Franklin, former labor and workplace reporter for the Chicago Tribune, was until recently the ethnic media project director with Public Narrative in Chicago. He is the author of Three Strikes: Labor’s Heartland Losses and What They Mean for Working Americans (2002), and has reported throughout the United States and the Middle East. He can be reached via e-mail at freedomwrites@hotmail.com.

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Environmental groups sue EPA for failing to protect farmworkers from pesticide exposure

June 15th, 2017 | Esther Yu-Hsi Lee

The delay also prevents the agency from setting an age requirement prohibiting young farmworkers from applying such pesticides.

The lawsuit argues that the Trump administration’s decision to postpone the effective date for implementation of the Certification of Pesticide Applicators (CPA) rule could lead to adverse harmful health issues for farmworkers and other people. That revised CPA rule–originally published on January 4 with an implementation date of March 6–would have, in part, imposed strict standards that require pesticide applicators to be at least 18 years old, be able to read and write, and establish an annual applicator safety training. Currently, there is no minimum age limit for the roughly one million certified applicators nationwide.

The lawsuit also states that the EPA failed to provide the public “adequate notice” to comment on rules to delay the effective date of implementation; failed to consider the adverse effects the delay would cause to farmworkers and their families regularly exposed to restricted use pesticides; and failed to consult with other government agencies to review environmental health consequences.

The CPA training would provide in-language lessons for people on the potential dangers of pesticide exposure, how to use equipment properly, how to prevent environmental contamination like runoff and drift, and how to report pesticide safety violations to enforcement agencies. The rule would also require training for aerial spray applications, so applicators would lessen the impact of the off-target movement of pesticides on plants, animals, and bystanders. A 2008 longitudinal government study found anywhere between 37 percent and 68 percent of acute pesticide-related illnesses are caused by pesticide drift into local communities.

Earlier this year, EPA Administrator Scott Pruitt delayed a decision to ban the restricted-use insecticide chlorpyrifos primarily used to systemically kill pests on agricultural crops. At the time, Pruitt’s agency rejected calls to ban the use of chlorpyrifos, claiming “the science addressing neurodevelopmental effects remains unresolved.”

Pruitt’s agency also put industry economic interests ahead of farmworker health safety, arguing that the continued use of chlorpyrifos would provide “regulatory certainty” for thousands of farms reliant on the pesticide and that more research was needed. His decision superseded the scientific recommendation made by the Obama administration supporting a gradual ban of chlorpyrifos. Past scientific research found a correlation between the pesticide and human health problems for farmworkers and children.

A 2012 Columbia University study found links between chlorpyrifos exposure and brain development and cognition issues in children and fetuses, even at exposure levels below the EPA threshold for toxicity. The EPA also found adverse risks among threatened and endangered species due to the pesticide.

The latest lawsuit comes days after seven states and several health and labor organizations directly challenged Pruitt’s decision, arguing that the EPA violated the Food Quality Protection Act of 1996 which requires the protection of infants and children from harm by pesticides in food, water, and exposure to indoor pesticides.

The lawsuit was filed on behalf of the advocacy groups Farmworker Association of Florida, United Farm Workers, Pineros y Campesinos Unidos del Noroeste, California Rural Legal Assistance Foundation and Pesticide Action Network North America.

Health and labor organizations, represented by the advocacy groups EarthJustice and Farmworker Justice, have strongly pressured the EPA to act on implementing the rule.

“EPA’s mission is to protect all Americans from significant risks to human health and yet it’s delaying life-saving information and training for the workers who handle the most toxic pesticides in the country,” Eve C. Gartner, an attorney with Earthjustice, said in a statement. “This delay jeopardizes everyone’s health and safety.”

In December 2016, the EPA said the rule could prevent upwards of 1,000 acute illnesses every year. Farmworkers–especially the two million immigrant farmworker labor force?–?are at the greatest risk of health problems because they’re most directly exposed to insecticides. Applicators mix and apply pesticides and can be exposed because of spills, splashes, defective, missing, or inadequate protective equipment, direct spray, or drift, according to Farmworker Justice. Farmworker families are also at risk because farmworkers bring home pesticides in the form of residue on their hair, skin, and clothing, or when pesticides drift into homes and schools near fields.

Immigrant farmworkers in particular are the least likely to receive health treatments or to file complaints because of fear of retaliation by employers. In one case, a woman whose fingernails turned black and skin peeled off her hands and face after pesticide exposure in Florida went to the doctor and didn’t file a complaint because she feared retaliation on her and her undocumented husband, the Palm Beach Post reported in 2003. In a 10-year period, less than eight percent of 4,609 violations of pesticide regulations in Florida resulted in fines, according to the Southern Poverty Law Center. And in May, several sick farmworkers in California left the scene when chlorpyrifos drifted into their field because they were likely afraid to confront medical members who could turn them into federal immigration authorities.

This article originally appeared at ThinkProgress on June 14, 2017. Reprinted with permission.

About the Author: Esther Yu Hsi Lee is an immigration reporter at ThinkProgress interested in migration and refugees. Contact her at EYLEE@thinkprogress.org.

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Comey’s Testimony Underscores Need for Strong Whistleblower Protections

June 14th, 2017 | Jason Zuckerman

For me, the most telling moment of former FBI Director Jim Comey’s June 8th testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the President had fired him because the “FBI was in disarray.”

This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government–and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

Intimidate and Silence the Whistleblower

In his June 8th testimony, Mr. Comey described in detail how the President had asked him to drop the investigation of Michael Flynn and had conditioned Mr. Comey’s job on “loyalty” to him. Senator Rubio expressed skepticism about Mr. Comey’s feeling intimidated by the President and blamed Mr. Comey for not pushing back. But that type of Monday-morning quarterbacking ignored the power dynamics of the conversation. Mr. Comey wanted to keep his job and was understandably reluctant to accuse the President of obstructing an investigation.

Whistleblowers often confront this intimidation tactic in the workplace. A supervisor or senior company official tells the whistleblower to “let it go,” “mind your own business,” or learn to be a “team player.” And in some cases, the whistleblower is told to shut up if he or she wants to remain employed. Threats of retaliation, whether express or implicit, are powerful tools to silence a whistleblower. When a company officer or senior manager orders a subordinate to do something unlawful or to cover up unlawful conduct, holding firm to one’s ethical values is not an easy avenue to follow. As Mr. Comey learned, refusing to carry out an unlawful order may be career suicide, at least in the short term.

Retaliate Swiftly and Severely Against the Whistleblower

Initially, the bizarre method of firing Mr. Comey seemed surprising for a President who perfected the art of firing on his reality show, The Apprentice. Mr. Comey was not given an opportunity to resign; he was not even notified that he had been fired. But now that we know about the President’s real motive for firing Mr. Comey, it’s clear that his tack was deliberate.

Mr. Comey learned of his firing while addressing FBI agents at a Los Angeles field office when the announcement flashed across a television screen. The White House had announced Mr. Comey’s firing without notifying Mr. Comey himself. President Trump sent a loud and clear message to Mr. Comey and to every senior government official about the consequence of disloyalty.

In the corporate workplace, whistleblower-employees are similarly humiliated as a warning to their colleagues. A whistleblower may be escorted out of the office with security guards while other employees are present, pulled out of a meeting and fired on the spot in front of colleagues, or simply fired via text message. When a corporation fires a whistleblower in this humiliating fashion, it ensures that all other employees know the consequence of whistleblowing.

Badmouth the Whistleblower and Their Work History

Firing Mr. Comey in a humiliating and offensive manner served only as phase one. President Trump then defamed Mr. Comey and asserted that he fired him because of chaos within the FBI, as well as the alleged loss of confidence in Mr. Comey among FBI agents.

These statements stand in stark contrast to the President’s repeated, public praise of Mr. Comey before Mr. Comey refused to comply with the President’s “hope” that Mr. Comey drop the investigation of Flynn. Indeed, if President Trump believed that Mr. Comey’s leadership caused chaos within the FBI, then why did the President invite Mr. Comey to continue to serve as FBI Director?

This patent distortion of Mr. Comey’s performance record is an all-too-common experience of whistleblowers. Prior to blowing the whistle, they receive strong performance evaluations and bonuses; they are valued members of the team. But once they blow the whistle and refuse to drop their concerns, they are suddenly deemed incompetent and unqualified for their position. And when a company realizes that it lacks any existing basis to fire the whistleblower, it creates one by subjecting the whistleblower to heightened scrutiny and setting the whistleblower up to fail. For example, a company might place the whistleblower on a performance-improvement plan that contains impossible objectives, and then fire the whistleblower for not meeting those unattainable goals.

This tactic may backfire and enable a whistleblower to ultimately prevail at trial, but the damage to the whistleblower’s reputation is permanent. Prospective employers are reluctant to hire someone who previously fired for poor performance and are especially reluctant to hire a whistleblower. Many whistleblowers never find comparable employment and must accept lower-level positions, earning a fraction of what they did before their wrongful termination.

Attack the Whistleblower’s Credibility

Apparently, President Trump has no evidence to rebut Mr. Comey’s vivid account of the President’s alleged attempts to obstruct justice. So President Trump called him a “liar.”

Desperate to defend themselves at all costs, corporations frequently employ this tactic–labeling the whistleblower a disgruntled former employee who will say anything to win his or her case. So far, this is not working well for President Trump, whose accusation merely serves to shine a spotlight on his own questionable credibility.

Attacking a whistleblower’s credibility is an effective and pernicious tactic in many whistleblower cases. Once expelled from a company, a whistleblower is marginalized and alienated from former coworkers. The key witnesses continue to work at the company and, fearing retaliation, are reluctant to corroborate the whistleblower’s testimony. Though whistleblowers may still prevail (for example, by using documentary evidence), the attack on a whistleblower’s credibility is odious because the company fired the whistleblower precisely for having integrity.

Create a Post-Hoc Justification for Firing the Whistleblower

Prior to firing Mr. Comey, President Trump papered the file with a post-hoc justification for the firing. After the President decided to fire Mr. Comey, Deputy Attorney General Rod Rosenstein was tasked with drafting a memorandum to the Attorney General outlining concerns about Mr. Comey’s performance. Most of those concerns focus on Mr. Comey’s statements about the investigation of former Secretary of State Hillary Clinton’s use of a private email server. Surely President Trump knew of those public statements when he repeatedly asked Mr. Comey to remain as FBI Director (as long as he could pledge “loyalty” and drop the Flynn investigation).

In this case, the White House’s initial reliance on the Rosenstein memo as the basis for the decision to fire Mr. Comey backfired because President Trump told NBC anchor Lester Holt that he had decided to fire Mr. Comey regardless of the memo. In many whistleblower-retaliation cases, however, these types of pretextual memos may be persuasive. Some judges even rely on such memos, which mask the real reason for a firing or other adverse action, to grant the company summary judgment and deny the whistleblower a jury trial.

On the other hand, creating a post-hoc justification for a retaliatory adverse action sometimes misfires by providing strong evidence of pretext and spurring a jury to award punitive damages. For instance, a former in-house counsel at Bio-Rad Laboratories recently secured more than $11 million in damages at trial in a Sarbanes-Oxley whistleblower-retaliation case. The jury awarded $5 million in punitive damages because Bio-Rad had backdated a negative performance evaluation of the whistleblower that the company drafted after it fired him.

Focus on the Whistleblower’s Alleged Misconduct

To distract attention from what may be obstruction of justice, President Trump and his attorney have focused on Mr. Comey’s leak to the press and have alleged that the leak was unlawful. This accusation seems frivolous because Mr. Comey did not leak classified information, grand jury material, or other sensitive information. Instead, he revealed that President Trump had conditioned his continued service as FBI Director on his agreeing to drop the investigation of Flynn. As a private citizen, Mr. Comey has a constitutional right to blow the whistle to the media about this matter of public concern. Mr. Comey did not reveal to the media information from FBI investigative files or classified information. Yet President Trump and his allies compare Mr. Comey to leakers who illegally disclosed classified information. This is an appalling accusation against the former head of a law-enforcement agency.

But this is another standard corporate defense tactic in whistleblower cases. To divert attention from the wrongdoing that the whistleblower exposed, the company uses its substantial resources to dig up dirt on the whistleblower. The company or its outside counsel examines the whistleblower’s timesheets and expense reports with a fine-tooth comb to find any discrepancy, reviews every email to find some inappropriate communication, and places all of the whistleblower’s work under a microscope to find any shortcoming.

Sue the Whistleblower and Initiate a Retaliatory Investigation

Firing Comey, concocting a pretextual basis for the firing, and branding him a leaking liar apparently was not sufficient retaliation.  So shortly after his testimony, President Trump’s personal attorney announced his intention to sue Mr. Comey and/or file a complaint with the Department of Justice Office of Inspector General (OIG).  I am skeptical that a civil action against Mr. Comey or an OIG complaint poses any real legal threat to Mr. Comey.  To the contrary, such a complaint would likely pose a greater risk for President Trump, including potential counterclaims and the risk of being deposed or questioned under oath by the OIG.

The misuse of legal process against corporate whistleblowers, however, is an especially powerful form of retaliation in that it can dissuade a whistleblower from pursuing their claims.  When I defend against this form of abuse of process, I am always struck at the seemingly endless resources that the company will spend to prosecute claims lacking any merit or value.  Fortunately, these claims can go awry by spawning additional retaliation claims under the whistleblower protection laws.  And a jury can punish the employer for subjecting the whistleblower to abuse of process.

Why Whistleblowers Deserve Strong Legal Protection

In light of Mr. Comey’s distinguished record, he will likely bounce back and rebuild his career. But most corporate whistleblowers never fully recover. Too often they find their careers and reputations destroyed. Even when whistleblowers obtain monetary relief at trial, they are usually blacklisted from comparable positions, especially if they work in a small industry.

Mr. Comey’s experience as a whistleblower is a stark reminder of what can happen to any employee who is pressured by a powerful superior to engage in unlawful conduct or to cover up wrongdoing. When intimidation tactics succeed, the public suffers. The company could be covering up threats to public health or safety, environmental contamination, financial fraud, defective products, or any other conceivable harmful wrongdoing.

Courageous whistleblowers who put their jobs on the line deserve strong protection. As Congress embarks on a mission to gut “job killing” agencies, let us hope it will spare the very limited resources that are spent enforcing whistleblower-protection laws. Without such a large backlog of whistleblower cases, OSHA could have, for example, addressed the complaints of Wells Fargo whistleblowers years ago, potentially curbing or halting the bank’s defrauding of its customers. And Congress should consider filling the gaps in existing whistleblower laws. If Mr. Comey “lacked the presence of mind” to explicitly reject the President’s improper demand for him to drop the Flynn investigation, then surely most employees would also be reluctant to refuse an order to commit an unethical or unlawful act.

After Mr. Comey’s testimony, Speaker Ryan pointed out that “[t]he President’s new at this. He’s new to government.” Mr. Comey’s testimony should be a lesson for the President about how to treat whistleblowers. To make America great again, the President should abandon the Rambo litigation tactics that apparently served him well in New York real-estate disputes, and instead view whistleblowers as allies, not as enemies. As Tom Devine of the Government Accountability Project and I argue in an article in the Emory Corporate Governance and Accountability ReviewDraining the Swamp Requires Robust Whistleblower Protections and Incentives.

This article originally appeared at the Whistleblower Protection Law Blog on June 13, 2017, it is reprinted here with permission.

Jason Zuckerman represents whistleblowers nationwide in whistleblower rewards and whistleblower retaliation claims.  Recently Matt Stock and Zuckerman issued an ebook titled SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

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This is Why Labor Should Care About Virginia’s Gubernatorial Primary

June 14th, 2017 | Douglas Williams

Last year, I wrote about the open shop referendum in Virginia, calling it the most important election for the labor movement in 2016. While Virginia has been a “right-to-work” state since 1947, supporters of the referendum argued that a constitutional amendment was necessary to prevent Democratic Attorney General Mark Herring or future Democratic legislative majorities from overturning the statute.

In a year where the election of an anti-labor president coincided with votes in Alabama and South Dakota that affirmed the open shop, Virginia gave labor its brightest victory: Almost 54 percent of voters across the Commonwealth rejected the constitutional amendment. And the “no” vote was spread out across the Commonwealth, with places as disparate politically as urban Arlington and rural Accomack voting against the measure, which was bitterly opposed by Virginia’s labor movement.

Much like the open shop referendum last year, this year’s gubernatorial election in Virginia is significant for labor. It’s a chance to contest the open shop in a region that has long seemed closed to any pro-labor advances on the issue. The primary vote is set for Tuesday and the labor movement would do well to make its presence felt.

Spread of the open shop

Politically, the open shop has been something of a settled matter in most of the South.

One of the first open shop statutes passed in Florida in 1944. As Gilbert Gall recounts in his Labor Studies Journal article, leaders of the American Federation of Labor (AFL) were slow to respond to the calls from its state affiliates for assistance in defeating the measure:

“…..President Green affirmed that the AFL wanted to help, but, he added, ‘it is expected that the Florida labor movement will do its part.’ He then chastised (Florida labor leader W.E.) Sullivan for the recent defeat of a liberal Florida Congressman, stating that he could not ‘understand why labor in Florida did not make a better showing.’ If it had, Green argued, it would have had ‘a tremendous moral effect’ against the coming Right to Work amendment, though exactly how he did not say.”

Floridians would go on to approve the measure with about 55 percent of the vote. While the open shop would end up spreading to places like Nebraska, South Dakota and Iowa over the next three years, it was the South where the concept really took hold. By the end of the 1950s, nearly all of the southern states would have right-to-work legislation on the books.

A chance for change

Given that history, it may not come as much of a surprise that the political support for Virginia’s status as an open shop state has been bipartisan. The current governor, Terry McAuliffe, gave a speech to business leaders pledging his full-throated support for the law during his 2013 gubernatorial run and has stated that he would not seek to change it as governor.

This brings us to the Democratic gubernatorial primary this year, which features a race between Lt. Gov. Ralph Northam and former U.S. Rep. Tom Perriello.

Northam, a former state senator and erstwhile potential party-switcher, began the race as the favorite after Herring decided to forgo a run for governor and seek re-election as attorney general. He lined up the endorsement of McAuliffe as well as a fundraising advantage of about half a million dollars. Perriello, who upset arch-conservative U.S. Rep. Virgil Goode in the 2008 congressional election, has closed the gap by turning the election into a referendum on Donald Trump.

But here’s the reason why this election is so important to labor: Perriello has taken a strong stance against the open shop. In an article outlining his campaign’s “Plan For Working Families”, Perriello states that:

“Too often, workers in Virginia don’t get the protections they need to earn their rightful pay and maintain consistent hours. Wage theft, the denial of benefits, and reduced bargaining powers are all side effects of a long, sustained attack on workers’ rights in Virginia. Workers do better when they have strong unions, and the decline in union membership is a major reason why wages have effectively flat-lined since the 1970s. That’s why I oppose so-called ‘right to work’ laws that kneecap unions from helping workers bargain for higher wages.”

He has defended this stance in gubernatorial debates as well, noting that he would fight for a repeal of the law even though it is unlikely to pass through a General Assembly that is dominated by Republicans. Northam, on the other hand, has called for Democrats to focus on other labor issues such as sick leave and an increased minimum wage instead of “pick(ing) fights that we perhaps can’t win right now.”

Sick leave and a minimum wage increase are important, for sure, but without a strong labor movement, it is hard to get the popular groundswell needed to prod legislators to make positive moves on those issues, either. Democrats should be united in their opposition to a policy that drains resources from labor unions and seeks to undermine the growth and stability of the movement as a whole.

Another major victory for the labor movement in Virginia could have major implications for the AFL-CIO’s strategy in the South further down the line. We should ensure that such a big opportunity is not missed.

This article was originally published on Inthesetimes.com on June 12, 2017. Reprinted with permission.

About the Author: Douglas Williams is a doctoral student in political science at Wayne State University in Detroit, where his research centers around public policy, disadvantaged communities and the labor movement. He blogs at The South Lawn.

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Together We Can Make Pay Equity a Reality for All Working Women

June 13th, 2017 | Fatima Goss Graves

June 10th is the 54th anniversary of the passage of the Equal Pay Act, the 1963 law that prohibits employers from paying men and women different wages for the same work solely based on sex. The Equal Pay Act’s passage is an important example of the labor movement’s long history of partnering with progressive women’s organizations to advocate for equal pay for women. Indeed, Esther Peterson—one of the labor movement’s greatest sheroes—was instrumental in the enactment of this landmark legislation.

Pay equity and transparency are bread and butter issues for working women; when they come together to negotiate collectively for fair wages and important benefits, like access to health insurance and paid leave, they can better support their families. (Indeed, women in unions experience a smaller wage gap than women without a union voice).

 Since the passage of the EPA, the gender wage gap has narrowed, but it persists. Women overall typically are paid 80 cents for every dollar paid to their male counterparts, and that number has barely changed in the past 10 years. And the gap is even larger when you compare the earnings of women of color to white men.

 Clearly, we still have much to do to ensure pay equity, and there’s been some progress, thanks to tireless working women and their allies across the country. For instance, in the past two years, more than half the states have introduced or passed their own remedies to increase pay transparency, strengthen employer accountability and empower working people to take action against pay discrimination. But stronger protection from pay discrimination shouldn’t depend on where you happen to live or where you work. Working women deserve a national solution.

 That’s why the AFL-CIO, the National Women’s Law Center and countless other organizations support the Paycheck Fairness Act, part of a comprehensive women’s economic agenda. The PFA would strengthen the EPA by: protecting employees from retaliation for discussing pay; limiting the ability of employers to claim pay differences are based on “factors other than sex”; prohibiting employers from relying on a prospective employee’s wage history in determining compensation; strengthening individual and collective remedies against employers who discriminate; and increasing the data collection and enforcement capacity of key federal agencies.

 Let’s not forget that raising the federal minimum wage also would boost women’s earnings in a big way. A driving factor in the gender wage gap is women’s overwhelming majority representation (two-thirds of workers) in minimum wage jobs, including those who pay the lower-tipped minimum wage. Legislation like the Raise the Wage Act would give women the well-deserved raise they’ve earned.

 We need strong policy solutions like the Paycheck Fairness Act and the Raise the Wage Act to help close the gender wage gap. Working women and the families who depend on them can’t afford to wait another 54 years.

This blog was originally published at AFLCIO.org on June 10, 2017. Reprinted with permission.

About the Authors: Fatima Goss Graves is the senior vice president for program and president-elect at the National Women’s Law Center. In her current role, she leads the center’s broad agenda to eliminate barriers in employment, education, health care and reproductive rights and lift women and families out of poverty. Prior to joining the center,, she worked in private practice and clerked for the Honorable Diane P. Wood on the 7th U.S. Circuit Court of Appeals. Liz Shuler is secretary-treasurer of the AFL-CIO. The second-highest position in the labor movement, Shuler serves as the chief financial officer of the federation and oversees operations. Shuler is the first woman elected as the federation’s secretary-treasurer, holding office since 2009.

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Public transportation is a jobs and equality issue

June 12th, 2017 | Laura Clawson

Public transportation is a jobs issue. If you don’t believe that, take a look at Philadelphia, where lack of efficient mass transit from the city to the suburbs is keeping a lot of people out of work—and a coalition of progressive and religious groups is pushing the city to offer improved options:

The coalition says SEPTA’s system centers on an outdated reality: suburban dweller commuting to city job. In 1970, about half of the region’s jobs were based in Philadelphia, the coalition said in a letter to Council. By 2013, only one in four jobs were in Philadelphia, as urban employment declined and suburban jobs increased. Meanwhile, the city has a higher unemployment rate, 6 percent in March, compared to suburban rates of 3.5 percent to 4.4 percent.

Workers trying to get from the city to the suburbs for jobs face long commutes. Looooong. Just 24 percent of jobs in the area are accessible within 90 minutes on public transit. That’s a major obstacle:

Another survey, by Temple University’s Institute of Survey Research, found that lack of transportation was the biggest barrier to employment, with 39 percent of respondents below the poverty line saying that not being able to get to work was more of an obstacle than a criminal history, child care problems or language barriers.

That’s just one more way infrastructure investment—the kind Donald Trump isn’t interested in making—boosts employment.

This blog was originally published at DailyKos on June 10, 2017. Reprinted with permission.

About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006. and Labor editor since 2011.

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