Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Chai Feldblum’

Mugno or not to Mugno: The Senate Must Decide

Tuesday, December 11th, 2018

As the sun sets on the 115th Congress and the mid-point of this term of the Trump administration, the sun also seems to be setting on any chance of seeing an Assistant Secretary for OSHA in the foreseeable future.

Or maybe not….

You may recall that former FedEx Ground safety director and Chamber of Commerce favorite Scott Mugno was nominated by President Trump in October 2017, has survived a Senate confirmation hearing and has been approved by the Senate Health, Education, Labor and Pension (HELP) committee (twice) on party-line votes. But Mugno’s nomination has never come to a final vote on the floor of the Senate.

Politico’s Morning Shift reminded us last week that the nomination of Mugno, as well as the nominations of Cheryl Stanton for the agency’s Wage and Hour Division, William Beach at the Bureau of Labor Statistics, and Gordon Hartogensis with the Pension Benefit Guaranty Corporation continue to be mired in a fight over the confirmation of two Democratic favorites: Mark Gaston Pearce to be reconfirmed for a seat on the National Labor Relations Board, and Chai Feldblum to be reconfirmed for a seat on the Equal Employment Opportunity Commission. (There are two other DOL nominees out there as well: John Pallasch for assistant secretary for employment and training was cleared by the Senate Committee last week, and Bryan Jarrett for assistant secretary for policy has not yet had a hearing. )

The business community (e.g. Chamber of Commerce and others) and their Republican cohorts in the Senate hate, Hate, HATE the idea of confirming Pearce and Feldblum more than they love the idea of having someone head the other labor agencies. The Chamber opposes Pearce because he “engineered some of the most harmful decisions and regulations in the Board’s history.”  And even though he was only on the Board from 2010 to 2018, he somehow managed to reverse “more than 4,550 years of precedent,” causing King Tut to roll over in his sarcophagus. According to Bloomberg Law, the Republicans fear that Pearce will slow down their efforts to roll back worker protections that were strengthened under Obama. But their real worry is that if Trump is defeated in 2020, Pearce would be the likely candidate to become NLRB Chair — with the downfall of Western Civilization shortly to follow.

Chai Feldblum served as EEOC chair throughout the Obama administration and has been renominated by Trump.  Her main sin is being an “open” lesbian and gay rights activist which is more important than the fact that she is a graduate of Harvard Law, clerked for Supreme Court Justice Harry Blackmun, and is a Georgetown Law School professor.  Utah Senator Mike Lee is particularly incensed with Feldblum’s nomination, calling her a “threat to religious liberty and the institution of marriage.”

Senator Patty Murray, ranking member of the HELP committee reemphasized last week that Democrats would continue to block the Labor Department nominees until the Senate confirms Pearce and Feldblum.

Why did Trump renominate these candidates who threaten the American way of life?

Because the party controlled by the President gets three appointees to these Boards, while the minority party gets two. Traditionally, the parties get to put up their own candidates who are then nominated by the President. In other words, they’re traditionally a package. Technically, the Democrats can’t block the DOL nominees because the Republicans eliminated their ability to require 60 votes, but Democrats can force Senate Leader Mitch McConnell to consider the confirmation of each candidate separately (instead of as a package), which would take up an enormous amount of scarce Senate floor time that McConnell would rather use to confirm Trump’s judges and higher level nominees. If the nominees aren’t confirmed in the next couple of weeks before this session of Congress ends, the entire nomination process starts all over again.

So what will happen? Will the dam break next week? Rumors of high level talks between the Democrats, McConnell and the White House have been flying, but if I had a nickel for every time a deal was reported to be imminent…

This blog was originally published at Confined Space on December 6, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

This is why workplace harassment training is so ineffective

Wednesday, July 25th, 2018

It’s a scenario that has become familiar to almost anyone who works in an office.

After “recent events around the country,” a well-meaning sexual harassment educator comes in to teach the letter of the law. The mandatory training provides information on “each and every sexual harassment law,” but the effects fall somewhere between useless and detrimental. The trainer comes at a large financial cost and proves to be of questionable value. Ultimately, the trainees leave discouraged and the hostile climate remains.

This all-too-familiar scene was demonstrated by the arrival of Petey the Sexual Harassment Panda on South Park, way back in 1999. His song-and-dance approach before a class of fourth graders was obviously a caricature. But sexual harassment experts say the problems he demonstrated — overly legalistic trainings that are more about liability protection than culture change and that come without proven results — have become ubiquitous, even as America reckons with the #MeToo moment. Trainers and training companies make a mint off of these trainings, more and more places are mandating them, and there is a built-in disincentive for trainers and employers to ever really explore whether they are helping to reduce harassment.

Fran Sepler, a consultant and trainer who has worked in sexual harassment prevention for more than 30 years, says that trainings that focus mostly on what the law says are not productive and may actually convey that “anything short of illegal behavior is tacitly acceptable.”

“Even though unlawful harassment is a terrible thing and a problem, your odds of being [illegally] harassed are relatively small, say 20 percent for women and less for men,” she explained. “Rude and uncivil behavior — close to 100 percent experience that at some point.” Yet the typical workplace harassment training video shows unrealistic situations that don’t match up with real life. “I show clips of about 50 videos,” Sepler said, “All show people putting their hands on the backs of colleagues.”

In the 1990s, a series of Supreme Court rulings had the effect of giving companies an incentive to do sexual harassment training: liability protection. Linda Seabrook, general counsel and director of legal programs for the non-profit Futures Without Violence said that this was a big factor in the growth of the industry. [Full disclosure: Futures Without Violence has previously provided its programming for ThinkProgress staff and other employees at the Center for American Progress. ThinkProgress is an editorially independent project of the Center for American Progress Action Fund].

“The reason they do sexual harassment training is not prevention,” Seabrook told ThinkProgress. “It’s so they can avail themselves of a certain defense: Faragher-Ellerth.” The term refers to a pair of judicial precedents (Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth) that suggested employers who do trainings can be protected from liability for some sexual harassment that might occur among their employees.

Alas, she said, these trainings on what is prohibited do not solve the problem at all. “I don’t understand how people think that type of training will lead to prevention. It trains you on the law and the employer’s policy. It does not and cannot at all train or educate you on what fosters or facilitates this type of conduct and/or what type of workplace doesn’t allow for this type of conduct.”

A lucrative industry

In 1998, the Los Angeles Times predicted court rulings would soon spur employers to spend big to protect themselves from future liability by providing sexual harassment training to their employees. It cited a projection that “U.S. employers will spend $10 billion annually on employment-law-related training by 2000, up from $5 billion in 1995, with sexual harassment prevention one of the main topics.” Two decades later, one training company told the paper it had received 2,150 requests for its programs in January — over 8 times more than the previous January.

Seabrook said Futures Without Violence has seen a significant increase in the number of “workplace education” sessions it it has been asked to do since the start of the #MeToo movement. But to be successful, she noted, the focus really has to be on building a thriving workplace community: the “deep-seated gender norms,” the sexism, the misogyny, and the anti-LGBTQ sentiments in our society require more than “a one-hour training or a two-hour training once a year.”

Jocelyn Frye, a senior fellow at the Center for American Progress, is an expert on sexual harassment policy. She said there’s growth in the demand for harassment training: “People who do trainings are getting a significant uptick,” she said. And she believes trainings can be a good thing, “but it has to be good training.”

“Nobody funds research”

One of the biggest obstacles to culture change is ignorance — sometimes willful — about what the problems are and what actually helps to solve them. In the past, Frye said, “employers historically have been unwilling to do certain types of assessments because they feared it could be used [against them] in litigation.” And few employers’ harassment training providers have had the ability or volition to find out if their methods are working.

That’s why so few businesses have embraced an evidence-based approach to figuring out what actually works.

“The fact that there isn’t info is itself sort of the news,” said U.S. Equal Employment Opportunity Commission Commissioner (EEOC) Chai Feldblum, who co-chairs the commission’s Select Task Force on the Study of Harassment in the Workplace. She co-authored a 2016 report for that task force, asking, essentially, why the problem remains so pervasive and what can be done about it.

In a telephone interview, she told ThinkProgress, “The fact that the evidence hasn’t shown that the type of training done for a decade [to be effective] doesn’t say training isn’t important. It just says training — in a vacuum — doesn’t seem to have much of an impact.” What limited research there is suggests that some things do help: leadership can change office culture, management can hold people accountable, the organization can set clear policies that go beyond the legalistic, and workplaces can have meaningful training. “We have a sense of what can work… [But] we don’t yet have solid evaluations of each of these things. Certainly not of them as a total package.”

As with all research, money is a factor. “Nobody funds research,” Futures Without Violence’s Seabrook observed. Social scientists “don’t have the resources to do that kind of work,” she said, noting that the EEOC has no research arm and is historically a low-priority department for administrations. Still, she explained, legislation will soon be introduced in Congress to fund research into all types of workplace harassment.

Feldblum agreed and noted another challenge: “We’ve always had two issues: one was get the funding, two was get the subject of the research (the employer) to say yes” to research into their workplace. Unless an employer is willing to let researchers examine the climate of a workplace before and after trainings and other interventions, there is no way to really know if they worked.

Legally, companies could be held liable for holding trainings they know are ineffective, creating a disincentive. But Frye says “it’s better to know your problems than to feign ignorance.”

According to Sepler, a lot of researchers would be “delighted” to do those kinds of examinations if they had the funding. “What if they evaluate a training model and and it shows it is ineffective?” she asked rhetorically. Despite the desire for evidence of results, “no one wants to be the organization where there is data [proving] you’ve been doing something demonstrably ineffective.”

Vicki Magley, a professor of psychology at the University of Connecticut, is one of the few people who has studied which interventions actually succeed at reducing harassment. She observed that most of the assessment of training is done by the vendors themselves — and it is less-than-rigorous data. “I’ve talked to many, many training companies over the past few months who want to tell me all the wonderful things they’re doing with their training. They don’t sound terrible…” she said. “But when I ask, ‘how do you evaluate whether this is doing anything?’, they have no answer.”

“You can ask trainees at the end of a training how well they liked the training, with smiley faces. That doesn’t tell you anything about attitude change, culture change, perceived risk [for reporting harassment],” she said. Instead of a rigorous before/after assessment, participants are mostly asked if the experience was helpful and if the free cookies served were fresh. That sends the message to employees that the company doesn’t take such trainings seriously.

In her own research efforts, she has encountered strong resistance to that sort of before and after study. Recently, she recounted, one organization hired her to evaluate a training but refused to let her evaluate efficacy. “I was being asked to come in and evaluate a training. I was told I couldn’t really evaluate it in the way that was going to be useful because ‘it was going to end up costing too much money and that would just be too expensive.’” With her university bearing the brunt of the costs, she said, she knew “at the end of the day, they just didn’t want to know.”

Magley also noted that many companies use online trainings which are even less evidence-based and can easily be completed by employees with “half an eye and half a heart.”

“If there’s a dearth [of research] on sexual harassment training, there is almost zilch on online training,” she says. “We really don’t know if it does anything.”

A roadmap for employers

Still, state and local lawmakers continue to pass laws making harassment training mandatory, without really taking into account whether it helps. Often these laws require that medium and large employers provide lengthy explanations about the letter of the sexual harassment law. In turn, this increases the incentives for training companies to remain ignorant about whether their in-person or virtual trainings are useful.

Robin Shea, a partner at Constangy, Brooks, Smith & Prophete who tracks state harassment training laws, said in an email that New York State and New York City were the most recent major jurisdictions to enact mandatory training for all major employers. When they go into effect in the upcoming months, New York will join California, Connecticut, Maine, and possibly additional states. “I do expect mandatory harassment training laws to be a hot legislative topic this year and in 2019 because of the #MeToo movement,” she predicted. Earlier this year, Connecticut’s senate, in a bipartisan vote, moved to expand the required two-hour training to employers with at least 20 employees (instead of 50) — though that bill died in the state’s house due to controversy around some other provisions.

But how to actually improve the problem? Feldblum said the EEOC task force report — a series of non-binding recommendations — is a “road map for employers to take.” It recommends an array of steps including greater accountability, new and different approaches to training, and more effective reporting systems.

Among the ideas in the report is a proposal that when employers accused of harassment enter into settlement agreements with the commission, they include requirements that researchers be allowed to work with the employer to assess climate and harassment levels before and after implementations of compliance trainings, civility trainings, and bystander intervention trainings.

So far, she has not seen a huge number of takers. “Even if we find an employer who is willing, we still have to fund it,” she said.

The University of Connecticut’s Magley thinks ultimately the solution may have to come from the judiciary. “Courts need to say, ‘You can do training, that’s a fine thing to do, but if you do that, you need to document that it is effective, that it’s doing what it’s supposed to be doing.’” By requiring that for legal liability protections, organizations would be “held accountable to truly effectively change structures,” rather than “do whatever they can, as cheaply as possible, to check the box.”

With the Trump administration working to pack the federal courts with Clarence Thomases and Sam Alitos who side with businesses over workers in case after case, that shift may not be quick.

“Legal change is a slow-moving train,” she acknowledged, but “hope rests on the shoulders of current law students actively reading this literature and law professors who are training that that type of thinking can start to permeate and change the culture.”

This article was originally published at ThinkProgress on July 25, 2018. Reprinted with permission. 

About the Author: Josh Israel has been senior investigative reporter for ThinkProgress since 2012. Previously, he was a reporter and oversaw money-in-politics reporting at the Center for Public Integrity, was chief researcher for Nick Kotz’s acclaimed 2005 book Judgment Days: Lyndon Baines Johnson, Martin Luther King Jr., and the Laws that Changed America, and was president of the Virginia Partisans Gay & Lesbian Democratic Club. A New England native, Josh received a B.A. in politics from Brandeis University and graduated from the Sorensen Institute for Political Leadership at the University of Virginia, in 2004. He has appeared on cable news and many radio shows across the country.

Take Back Labor Day: Week 2 Roundup

Friday, September 12th, 2008

For this week’s installment of our Take Back Labor Day project, we had ten new posts representing the incredible quality and diversity that exists among those who think and write about workplace issues. With a wide variety of topics, including domestic workers, CEO pay, and workplace flexibility, and the representation of powerhouse organizations such as the Center for American Progress, the new Health Care for America Now coalition, and Women Employed, Week 2 was another stellar week.

Kicking off the week, on Monday, September 8, were Dr. David Madland and Karla Walter of the Center for American Progress (CAP) and Mark Harbeke of Winning Workplaces.

Madland and Walter, of the Center for American Progress‘s American Worker Project, point out the abysmal record of the current administration when it comes to having the Department of Labor simply do its job of protecting workers.  What’s the solution (besides voting, of course)?  Passing the Employee Free Choice Act, which the next administration should have the opportunity to do.

Winning Workplaces helps small and midsize organizations create great workplaces, and often it’s Mark Harbeke bringing some of the very best workplace practices and hottest workplace trends to our attention.  This post was no exception, as Mark found three different studies that all make it crystal clear that employers have to engage their employees, if they want them to be productive and satisfied with their work.  If you’re too busy to read the handwriting on the wall, just read Mark on a regular basis at the Winning Workplace blog.

Continuing on Tuesday, September 8, were workplace columnist Bob Rosner and Anne Ladky of Women Employed, respectively tackling the hot topics of CEO pay and paid sick leave.

In a bit of workplace Freakonomics, who figured out that CEO performance has an inverse relationship with their house size? No, it wasn’t Bob Rosner, but he tells us about the study that figured out that the larger the CEO’s house, the more likely that shareholders will pay for the CEO’s poor performance. Pay close attention to Bob — you’ll be seeing a lot more of him soon around these parts!

Anne Ladky of Women Employed provides us a great way to track our progress between this Labor Day and next:  have we passed a federal paid sick leave bill?  If not, we’re not done ensuring fairness in the workplace, while a benefit considered standard by most professionals—paid sick time—is unavailable to millions of lower-paid workers, including 22 million women.

Wednesday, September 10 featured two titans among lawyers who represent workers:  Paul Tobias and Ellen Simon.

Paul Tobias, who can count founding Workplace Fairness and the National Employment Lawyers Association among his myriad of career accomplishments, uses Labor Day to identify a number of necessary changes we need to our employment laws for workers to get a fair shake.  As he remarks, we all hope that the presidential candidates will take note of these needed changes and actually fix them during the next administration.

Ellen Simon, one of the foremost employment and civil rights lawyers in the United States, tells us about a recent surprisingly positive Supreme Court decision (Sprint v. Mendelsohn), which gives us a slight bit of hope that the Court — not especially known for its friendliness to workers — will actually enforce the long-standing rules of evidence, even when to do so might benefit workers.

Thursday, September 11, was a somber day of remembrance for many of us.  Blogger Jason Gooljar looked back to the very origins of the Labor Day holiday, while Chai Feldblum and Katie Corrigan looked to the not-too-distant future of the flexible workplace.

Jason Gooljar, blogger Working Families Party Man, points out what even the most worker-friendly among us might not know about Labor Day: that it was proposed as a September holiday to prevent the celebration of what was considered a much more radical observance:  May Day.  While we may now observe a watered-down holiday, we don’t have to have a watered-down global labor movement, and Jason tells us why that’s important.

Chai Feldblum and Katie Corrigan, who co-direct the Workplace Flexibility 2010 campaign at Georgetown Law, talk about how many workers have extreme difficulty juggling the competing demands of work, family, and community involvement.  Workplace flexibility (including telecommuting, phased retirement, and flexible work arrangements) is a solution which can ultimately bring about more effective business, a stronger workforce, and healthier families — if enough businesses choose to embrace flexibility principles and practices.

Week 2 wrapped up on Friday, September 12, but we didn’t slack off at the end of the week, with Melvina Ford and Jason Rosenbaum tackling two urgent workplace problems:  the lack of sufficient legal protections for domestic workers, and the lack of adequate health care for many, if not most, American workers.

Melvina Ford, Executive Director of the DC Employment Justice Center, identifies a problem hardly confined to the DC metro area:  the exploitation of domestic workers who cook, clean, and take care of children and seniors at home.  She correctly notes that many current laws weren’t written with domestic workers in mind, and either exempt them entirely or do not adequately protect them.  Some recently enacted laws show promise in educating oft-exploited workers about their rights, but we need to do even more to ensure that domestic workers are fairly compensated for their often back-breaking work.

Jason Rosenbaum, writing for the recently formed Health Care for America Now! coalition, makes a relatively obvious but incredibly overlooked connection:  a healthy worker is a better, more productive worker, and sick workers who lack adequate insurance sap productivity.  Yet both businesses and employees face skyrocketing health care costs as a result of insurance company intervention.  Yes, health care is an economic issue — and a vitally important one that we are forced to address in the days ahead.

Whew:  health care, CEO pay, domestic pay, the Supreme Court, the Department of Labor:  you name it, we covered it in week 2, if it’s important in today’s workplace.  And next week continues the fine tradition we’ve established this month:  with at least five guest bloggers continuing the quality posts you’ve seen all month.  Stay tuned!

Workplace Flexibility – A New Standard for the American Workplace

Thursday, September 11th, 2008

In today’s difficult economy, we are all more acutely aware of the changing nature of work in this country. American employees are increasingly concerned about job security and losing crucial benefits–while the demands on them in a 24/7, global marketplace have intensified exponentially. Many employees are working more hours than ever before, while others–especially low-wage workers and those in the growing contingent workforce–have little or no control over how many hours they will work in any given week.

As our workplaces have become more demanding, the demographics of the American workforce have shifted dramatically. For most American families, the reality of today’s economy is that both members of a couple must work full time–and even that leaves many families stretching to cover the rising costs of gas, groceries, and health care.

As a result, many American employees struggle to meet the demands of work while also meeting family responsibilities as critical as caring for a sick child. Indeed, the need for workplace flexibility among American employees of all ages, professions, and income levels is urgent. A significant majority of workers report that they do not have the flexibility they need to succeed at work and still fulfill serious personal obligations–be it caregiving for a child, a spouse, or a parent, volunteering in the community, attending religious services, or obtaining advanced training.

Workplace flexibility:  an approach that encompasses options from flexible work schedules and telecommuting to extended time off and phased retirement–is a solution at the crossroads of a myriad of pressures facing our workforce. Flexibility can help ease the intense strain felt by millions of American workers trying to balance work with the needs of their families. For example:

The benefits of these and other types of flexibility are already being seen in workplaces across the country–and workplace flexibility is now being used as a strategic management tool in a diverse range of industries. By reducing turnover rates, boosting recruitment, and enhancing efficiency and performance, a growing number of business leaders are recognizing that flexibility can actually increase their competitive advantage.

Workplace flexibility can support both employers and employees in meeting the demands of the 21st century economy. But in order to make workplace flexibility a new standard of the American workplace, we must not only encourage voluntary business practices–but also develop consensus-based, common-sense public policies that work for families and in the marketplace.

Over the last several decades, the policy debate around the intersection of work and family has been plagued by a political stalemate. But we believe that through meaningful dialogue with business leaders, labor representatives, family, aging and disability advocates–and policymakers from both sides of the aisle–we can develop comprehensive workplace flexibility solutions that bridge political divides in Washington and beyond.

As workplace flexibility becomes an integral part of the American workplace, we believe it will ultimately support more effective business, a stronger workforce, and healthier families. And those are standards we can all agree on.

For more information on Workplace Flexibility 2010 and our consensus-building process, visit www.workplaceflexibility2010.org.

About the Authors: Chai R. Feldblum is a Professor of Law at Georgetown University Law Center in Washington, D.C., Director of Georgetown’s Federal Legislation Clinic, and Co-Director of Workplace Flexibility 2010.

Katie Corrigan is the Co-Director of Workplace Flexibility and an Adjunct Professor of Law at Georgetown University Law Center.

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