Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘lawsuit’

Trump administration sued after trying to gut federal workers’ union rights

Thursday, May 31st, 2018

The Trump administration is being sued by the largest union representing federal workers, which claims a new executive order that restricts union representation during work hours is unlawful and violates the First Amendment rights of its members.

The executive order was among three that Trump issued last Friday that rolled back union protections and the latest anti-union measures imposed by the administration. The lawsuit was filed by the American Federation of Government Employees (AFGE) at U.S. District Court in Washington D.C. on Wednesday.

“These changes will effectively deny thousands upon thousands of federal employees union representation,” AFGE General Counsel David Borer told ThinkProgress on Thursday. “It’s all part of an effort to destroy the unions and shrink the size of the government, in the words of some Republicans, down to the size of where you can drown it in a bathtub.”

Among a number of limitations, the “Official Time” executive order bars union representatives from spending more than 25 percent of their work hours providing representation for employees and, in the aggregate, no more than one hour per employee in their bargaining unit per year, Borer said. In other words, if there are 1,000 employees in a unit, a representative cannot spend more than 1,000 hours representing employees, he said.

Allowing union representation during work hours is common practice in the private sector and unions are required by law to represent all employees, both paying members and non-members, said Borer. Historically, the rationale for allowing union representatives to use “official time” to represent employees is because the law requires the union to provide the free service to non-members that don’t pay dues, he said.

In its lawsuit, the union argues the executive order violates the First Amendment because it does not provide valid justification for the regulations and singles out labor organizations and their representatives for “disparate, negative treatment as compared to individuals.” Because of this, it “restrains and retaliates” against the union and its employee representatives for exercising their rights to expressive association.

It also violates the Separation of Powers in the Constitution because it attempts to give agencies unilateral authority to determine whether a particular amount of official time is reasonable, necessary, and in the public interest, according to the suit.

The Trump administration is quietly making it easier to abuse seniors in nursing homes

Thursday, July 6th, 2017

The Trump administration is poised to undo rules issued by the Obama administration last year to protect seniors from a common tactic used by businesses to shield themselves from consequences for illegal conduct.

Under these rules, issued last September, Medicare and Medicaid would cut off payments to nursing homes that require new residents to sign forced arbitration agreements, a contract which strips individuals of their ability to sue in a real court and diverts the case to a privatized arbitration system.

But last month, the Trump administration published a proposed rule which will reinstate nursing homes’ ability to receive federal money even if they force seniors into arbitration agreements.

Forced arbitration can prevent even the most egregious cases from ever reaching a judge. According to the New York Times, a 94 year-old nursing home resident “who died from a head wound that had been left to fester, was ordered to go to arbitration.” In another case, the family of a woman who suffered “two spine fractures from serious falls, a large, infected ulcer on her heel that prevented her from walking, incontinence from not being able to get to the bathroom, receding gums from poor hygiene assistance, and a dramatic weigh loss from not being given her dentures,” was also sent to an arbitrator after they sued the woman’s nursing home alleging neglect.

Moreover, as law professor and health policy expert Nicholas Bagley notes, arbitration tends “to favor the repeat players who hire them—companies, not consumers.” Several studies have found that forced arbitration typically produces worse outcomes for consumers and workers. An Economic Policy Institute study of employment cases, for example, found that employees are less likely to prevail before an arbitrator, and that they typically receive less money if they do prevail.

The Obama-era rules were never allowed to take effect. Shortly after the regulations were announced, a George W. Bush-appointed judge in Mississippi issued a decision blocking the rule—although Judge Michael Mills did caveat his order by stating that “this case places this court in the undesirable position of preliminarily enjoining a Rule which it believes to be based upon sound public policy.”

Important parts of Mills’ opinion rely on dubious reasoning. At one point, for example, he cites a doctrine limiting the federal government’s power to use threats of lost funding against state governments in order to impose similar limits on federal efforts to encourage good behavior by private actors.

But let’s be honest. If the Trump administration wasn’t preparing to end the Obama-era rule, conservatives on the Supreme Court most likely would have done so themselves.

Prior to Justice Antonin Scalia’s death, the Supreme Court’s Republican majority took such a sweeping and expansive view of companies’ power to use forced arbitration that it is likely the Obama administration’s rules would have been struck down in a 5–4 decision. Now that Neil Gorsuch occupies Scalia’s seat, Republicans once again have the majority they need to shield arbitration agreements.

In the alternative universe where the winner of the popular vote in the 2016 presidential election was inaugurated last January, Justice Merrick Garland was likely to provide the fifth vote to uphold the Obama-era rule. But we do not live in that universe. And neither do the many elderly nursing home residents who will be worse off thanks to the Trump administration.

This article was originally published at ThinkProgress on July 6, 2017. Reprinted with permission.

About the Author: Ian Millhiser is a senior fellow at the Center for American Progress and the editor of ThinkProgress Justice. He received his JD from Duke University and clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit. His writings have appeared in a diversity of publications, including the New York Times, the Guardian, the Nation, the American Prospect and the Yale Law & Policy Review.

Uber admits underpaying New York drivers approximately $45 million

Thursday, May 25th, 2017

Uber’s gotta pay—with interest.

The infamous ride-sharing app admitted Tuesday that it had been underpaying its New York drivers since November 2014 due to an accounting error that took out more than the company’s 25 percent commission, the Wall Street Journal first reported.

Uber typically takes its commission after taxes and fees are deducted from a driver’s fare, but the accounting glitch that took it out beforehand resulted in a larger pay deduction for drivers. Uber’s terms of service did not specify that it took commissions out of gross fare earnings.

To make things right, Uber is repaying an average of $900 per driver with interest, which is estimated to cost a total of at least $45 million. One driver is receiving a $7,000 payout, Recode reported.

“We made a mistake and we are committed to making it right by paying every driver every penny they are owed, plus interest, as quickly as possible,” Uber’s regional manager in the U.S. and Canada, Rachel Holt, said in a statement. “We are working hard to regain driver trust, and that means being transparent, sticking to our word, and making the Uber experience better from end to end.”

Uber has had a rough year with multiple public relations disasters spanning a consumer and driver backlash for the company’s tepid response to the Trump administration’s immigration ban and a sprawling sexual harassment scandal. But the company’s issues with drivers over pay have also persisted.

In January, Uber settled a lawsuit that claimed the company misled drivers regarding earning potential and conditions of the company’s auto financing program. Drivers protested against poor pay throughout 2016, demanding higher pay.

Through it all, Uber has fought drivers on granting employee status and benefits, fair pay, and unionization. But despite the influx of lawsuits, it appears that drivers are going to keep fighting the company on issues.

Following news of Uber’s repayment of New York drivers, the Independent Drivers Guild, which represents more than 50,000 app drivers, called for a widespread investigation into the company’s payment practices.

“Drivers have been complaining about this and other shady accounting tactics to no avail,” said IDG’s executive director Ryan Price in a statement. “Drivers are relieved to be paid the money they are owed plus interest and we hope other companies follow suit.”

“We also call for regulators to launch an immediate investigation into ride hail applications fare and payment practices in our city.”

This article was originally published at ThinkProgress.org on May 24, 2017. Reprinted with permission.

About the Author:  Lauren C. Williams is the tech reporter for ThinkProgress with an affinity for consumer privacy, cybersecurity, tech culture and the intersection of civil liberties and tech policy. Before joining the ThinkProgress team, she wrote about health care policy and regulation for B2B publications, and had a brief stint at The Seattle Times. Lauren is a native Washingtonian and holds a master’s in journalism from the University of Maryland and a bachelor’s of science in dietetics from the University of Delaware.

Ship Builder Settles $5 Million Lawsuit After Forcing Indians To Work And Live in Awful Conditions

Friday, December 18th, 2015

EstherYuHsiLeeA ship building and repair company will pay $5 million to settle a U.S. Equal Employment Opportunity Commission (EEOC) race and national origin discrimination lawsuit with 476 Indian guest workers who worked at the company’s facilities after hurricanes Katrina and Rita. While Indian workers lived in squalid containers “the size of a double-wide trailer,” non-Indian workers were not subjected to the same conditions.

According to the lawsuit, Signal International recruited Indian guest workers through the federal H-2B guest worker program to work at its facilities in Texas and Mississippi and forced them to pay to live in deplorable conditions. In its lawsuit, the EEOC alleged that Signal forced “the men to pay $1,050 a month to live in overcrowded, unsanitary, guarded camps. As many as 24 men were forced to live in containers the size of a double-wide trailer, while non-Indian workers were not required to live in these camps.”

H-2B visas are generally used for low-skilled or seasonal work, which are valid for ten months, with the chance to extend visa renewals up to three years. As part of the visa program, employees should be reimbursed for the consulate interview fee, visa fee, border crossing fee, and transportation costs associated with obtaining their H-2B visas. Employees aren’t always reimbursed for the H-2 visa process. They are also tied to the employers during their stay in the United States.”

“We are very pleased Signal has accepted responsibility for its wrongdoing and that these workers, who have waited 10 long years for justice, will now receive compensation and can move on with their lives,” Delner Franklin-Thomas, district director for EEOC’s Birmingham District, said in a statement. “In many cases, these men paid thousands of dollars to come to the United States, only to be subjected to inhumane conditions and exploitation after they arrived.”

An estimated 66,000 H-2B visas are distributed on an annual basis. But employers often us the H-2 visa programs to take advantage of legal guest workers. An Economic Policy Institute study found that temporary legal guest workers are as likely to be subjected to low wages as undocumented workers.

The $1.1 trillion omnibus funding bill passed Friday included a provision to dramatically increase the number of H-2B visas. The AFL-CIO and the International Labor Recruitment Working Group criticized the visa provision because it could potentially roll back “protections for low-wage workers and guest workers… while lowering the protections for workers,” Joleen Rivera, a legislative representative at the AFL-CIO, said.

Still, the 476 Indian guest workers are not the only exploited workers from hurricanes Katrina and Rita. Some undocumented immigrant laborers helping to rebuild the Gulf Coast after Hurricane Katrina were threatened with deportation and were often unpaid for the work they did.

This blog was originally posted on ThinkProgress on December 18, 2015. Reprinted with permission.

About the Author: The author’s name is Esther Yu-Hsi Lee. Esther Yu-Hsi Lee is the Immigration Reporter for ThinkProgress. She received her B.A. in Psychology and Middle East and Islamic Studies and a M.A. in Psychology from New York University. A Deferred Action for Childhood Arrivals (DACA) beneficiary, Esther is passionate about immigration issues from all sides of the debate. She is also a White House Champion of Change recipient. Esther is originally from Los Angeles, CA.

Surprise! Zara, The Brand That Brought You Swastika-Stamped Handbags, Faces $40 Million Anti-Semitism Lawsuit

Tuesday, June 9th, 2015

Jessica_GoldsteinZara, the fast-fashion retailer that brought you a children’s t-shirt that looks like a concentration camp uniform and a handbag decorated with swastikas, is facing a $40 million discrimination lawsuit. Three employees are alleging nine causes of action: according to Women’s Wear Daily, the lawsuit makes “claims on racial discrimination, in particular anti-Semitism. It is also alleging pay discrimination and retaliation.”

The lawsuit was filed Wednesday by Zara’s former general counsel, Ian Jack Miller, and lists the U.S. country manager, and Zara USA’s director of expansion for North and South American, Moises Costas Rodriguez, as the other defendants. Miller started working at Zara in January 2008 and was fired in March of this year.

Miller is Jewish and alleges the discrimination he experienced was particularly harsh as a result. Though upper management didn’t know about Miller’s faith until he’d been at Zara for five years, they routinely called Jewish landlords and real estate developers with whom they worked “los judios” (Spanish for “the Jews”), whined that it was trying to work with “those people,” and generally mocked them. Once Miller’s religion came to light, he found himself cut out of crucial meetings and email chains; his annual pay raises were cut from over 15 percent to three percent.

Miller alleges that employees are favored if they are “straight, Spanish and Christian.” Spanish employees allegedly enjoyed greater job security and higher pay raises, he claims. He also alleges that he was fired the day after his legal counsel sent a letter to Zara detailing his complaints.

From Fashionista:

The lawsuits claims are specific, lewd and no doubt embarrassing to many current and former employees. The lawsuit describes a corporate culture where visits to prostitutes are a normal part of business trips and a heterosexual lifestyle is endorsed. Miller says that former Zara USA CEO Moises Costas Rodriguez bragged about the size of his penis and having sexual relations with five female subordinates, including a director of human resources, and that he sent an email to Miller highlighting language that marriage is an institution “sanctified between a man and a woman.” The suit claims that another Zara executive, Francesc Fernandez Claramunt, sent Miller’s partner, Michael Mayberry, a pornographic image of an erect and tattooed penis and that Fernandez had been trying to persuade Miller to get such a tattoo.

It wasn’t just Miller who was the alleged target of Zara’s prejudice: emails that regularly circulated among senior management reportedly contained pictures of Michelle and Barack Obama, the former serving fried chicken, the latter on an Aunt Jemima box shining shoes and in a Ku Klux Klan hood holding a Confederate flag.

 

In response to the lawsuit, a Zara representative told WWD, “We do not tolerate any behavior that is discriminatory or disrespectful, but value each individual’s contributions to our dynamic organization.”

 

Revelations like this are always a bit shocking, not because it’s so stunning that someone could still harbor such antiquated prejudices in a modern time, but really that someone could be stupid enough to document them in a work email. As no one at Zara would be encouraged to say, dayenu.

 

And yet, for the consumer paying attention to Zara’s practices — and really, the practices of all these fast fashion retailers — there is no real reason to be taken aback by this news. This is a store that not only has stocked its shelves with easily identifiable signifiers of the Holocaust (twice!) but has also shilled blackface necklaces.

So Zara’s corporate culture shouldn’t be all that shocking, just like there is nothing particularly jaw-dropping about Abercrombie & Fitch, purveyor of all things white, blonde and preppy, would be found guilty of religious discrimination against a potential employee who wore a hijab at her job interview; just like there is nothing especially mind-blowing about Urban Outfitters, which navigates cultural landmines with all the grace of a drunk hipster, would sell a “Vintage Kent State Sweatshirt” that appears to be splattered with blood. We’ve reached a point where shopping at any of these places is, at best, a passive acceptance of the values they openly, eagerly uphold.

 

Still, would-be responsible shoppers are in a bind: it is practically impossible to know that you’re buying clothing that is not only inoffensive on its face (can’t really say enough times how easy it is to make sure Nazi regalia isn’t all over your fine fake-leather goods) but ethical in its supply chain. Stores like Forever 21, H&M and Topshop keep prices low by exploiting and endangering the lives of impoverished people, mostly women, in developing countries. Even Patagonia, probably the most high-profile advocate in the retail space for fair labor practices, can’t weed human trafficking out of its factories.

One more thing to consider: Zara founder Armancio Ortega is the second-richest man on Earth. He has a net work of $71.5 billion.

This blog was originally posted on Think Progress on June 5, 2015. Reprinted with permission.

About the Author: The author’s name is Jessica Goldstein. Jessica Goldstein is the Culture Editor for ThinkProgress. She also writes recaps for Vulture, New York Magazine’s culture blog. Before coming to ThinkProgress, Jessica was a feature writer and theater columnist at the Washington Post. Jessica holds a B.A. in English and Creative Writing from the University of Pennsylvania. While at Penn, she wrote for Seventeen and Her Campus. Jessica is originally from New Jersey.

After Ruling That McDonald’s Can’t Pay Workers In Bank Cards, The Bank Pays Up

Friday, June 5th, 2015

AlanPyke_108x108Paying employees through prepaid debit cards that incur fees when workers try to withdraw their cash is illegal in Pennsylvania, a judge ruled Tuesday. The lawsuit targeting a McDonald’s franchisee in the eastern-central part of the state has already prompted a powerful Wall Street bank to voluntarily give money back, a lawyer for the plaintiffs told ThinkProgress on Wednesday.

The case began in 2013 after a woman named Natalie Gunshannon sued a couple who own and operate multiple McDonald’s franchises in the state. The owners, Carol and Albert Mueller, had been using payroll debit cards provided by JP Morgan Chase rather than traditional paychecks or direct deposit payroll systems. After Gunshannon filed suit, the couple began offering direct deposit and traditional checks as alternatives to the payroll cards, which had previously been workers’ only option.

Gunshannon and other workers faced a $1.50 charge every time they used an ATM to access their wages, and a $5 charge for withdrawing the money over the counter at a cash register. Where a worker who misplaced a standard paycheck would be able to get a replacement check, the JP Morgan Chase prepaid cards charged a $15 replacement fee if lost or stolen. Paying bills online with the card meant spending an additional 75 cents on bank fees, and merely checking the balance of a card triggered a $1 fee.

The Muellers’ hourly workers were charged such fees nearly 47,000 separate times from the fall of 2010 to the summer of 2014, according to an expert witness in the case. That works out to roughly 20 separate fees per person in the class over a 45-month period.

Store managers, meanwhile, were offered direct deposit forms to receive their pay without facing the card fees.

When Gunshannon’s claim gained class action status earlier this year, all 2,380 hourly workers at the Muellers’ chain were able to join the case. Each of those workers would be entitled to a $500 damages payment plus the reimbursement of all the fees they were charged by the payroll cards, should the Muellers’ appeal of Tuesday’s ruling ultimately fail. In that case, the couple would have to pay out roughly $1.2 million in damages, unless they are able to strike a settlement with the workers’ attorneys.

Because the class action decision raised the stakes so significantly, that May ruling was in some ways a bigger deal than Tuesday’s finding that the Muellers had broken the law. The class status ruling in May certainly got Chase’s attention, plaintiffs’ attorney Michael Cefalo told ThinkProgress.

“Our lawfirm became bombarded with telephone calls. All of the class members were getting a form letter from Chase saying, we have decided to refund you all of the fees you have paid Chase,” Cefalo said. “We were shocked.” The voluntary payments from Chase ranged from as little as a penny to as high as $148, the attorney said. A call to the bank’s press office about the payments was not immediately returned.

The checks do little to shield the Muellers from the potentially backbreaking damages payments mandates by Pennsylvania’s Wage Payment and Collection Law. And while the money is nice, Cefalo said, it doesn’t erase what the McDonald’s franchisees and Chase did to his clients.

“Say I come up to you and I have an armed robbery, and then I say ‘I’m sorry, here’s your money back.’ I still committed a robbery,” he said. “You still paid ‘em the wrong way.”

The Muellers’ attorneys told Law360 they intend to appeal Tuesday’s ruling. They may yet succeed in persuading a different judge that the payroll cards fit the state’s definition of legal payment. In Tuesday’s decision, Judge Thomas Burke himself acknowledged that the relevant state law was written in 1961, and the technological progress in payments technology since then may cloud the case. He also asked the state’s Department of Labor and Industry to issue a formal administrative position on whether or not payroll cards that charge user fees are equivalent to cash or checks. The agency has previously said the cards are legal payment, but only in a non-binding advisory letter, according to Law360. A call to the agency for comment was not returned.

Payroll cards such as those the Muellers used are legal in many states, despite the fees that eat into workers’ wages. A handful of state legislatures are weighing new rules to govern the use of such cards, including Pensylvania itself and Washington state. The Consumer Financial Protection Bureau is working on regulations for a wide range of different prepaid debit cards including payroll cards like those in the Mueller case. The agency has warned employers that they must make alternative forms of payment available for any worker who doesn’t want the cards, and is currently soliciting comments on a proposed federal regulation.

With millions of Americans lacking access to banking services, the cards can be an important and beneficial tool for workers so long as they come with the right safeguards, the National Consumer Law Center has argued. Close to 5 million people were paid through such cards in 2012, a number projected to double by 2017. Similar prepaid debit cards are also being used in some cases to pay public benefits such as unemployment insurance. The banks that provide the cards and charge the fees are trying to recoup some of the profit they lost when Dodd-Frank regulations curtailed their old business practices involving fees for standard debit cards.

This blog was originally posted on Think Progress on June 3, 2015. Reprinted with permission .

About the Author: The author’s name is Alan Pyke. Alan Pyke is the Deputy Economic Policy Editor for ThinkProgress.org. Before coming to ThinkProgress, he was a blogger and researcher with a focus on economic policy and political advertising at Media Matters for America, American Bridge 21st Century Foundation, and PoliticalCorrection.org. He previously worked as an organizer on various political campaigns from New Hampshire to Georgia to Missouri. His writing on music and film has appeared on TinyMixTapes, IndieWire’s Press Play, and TheGrio, among other sites.

The Myth of the Disgruntled Employee

Tuesday, August 26th, 2014

marvin-e-krakow-LX322826-3[1]Removed from the distant wars currently in the news, it is easy to see how neighbors alike in so many ways must dehumanize one another in the midst of conflict. It’s a form of blindness that is common not just to war, but to all conflict – and one that I see all too often in my practice.

Let me introduce you to the people who come to our law office for help.   Many have worked for the same employer for long years, often for decades.  Most feel strong and warm connections to their employers and co-workers.  They struggle, as we all do, with the challenges of life, with their health, with family responsibilities, with financial reversals, and with their careers.  They come to see us, because their bosses have disrupted their work, their source of income, their identity. They are not irrational.  They are not trying to game the system.  They work with a seriousness of purpose.

Who are they?  They do every kind of work: executives, janitors, public servants, truck drivers, waiters, teachers, and artists. They come from every imaginable background.  They have advanced degrees; they did not learn to read.  Their families are established; they are recent immigrants, accompanied by their children who translate. Some are old, some young, some rich, some poor.  They are straight. They are gay.   They have strong religious beliefs.  They have no religious beliefs. They are breadwinners with obligations to pay college tuition or to support an elderly parent.  They are men and women near the ends of long careers who need another few years of work, because they cannot afford to retire.   They are from every racial and ethnic background.

If they share anything in common, it is that they are not happy to find themselves in a lawyer’s office.  When I ask potential clients about their previous dealings with lawyers, the most common response is that they have never hired a lawyer, and have never been involved in a lawsuit.  Most of them come to us reluctantly, and they apologize for doing so.  They will explain that they would prefer to consider all other options instead of filing suit.  They come, despite that reticence, because they feel they have been seriously hurt and profoundly disrespected by their employers.

Who brings a lawsuit?  Here are a few examples from my own recent experience: a store manager falsely accuses a 60-year old retail assistant of failing a drug test, and fires him.  New owners replace a worker who successfully led a computer software development department for over thirty years and replace her with a less qualified, younger man.  An executive needs time off to care for his dying wife; the owner fires him a week after she dies.

In each of these cases, the prevailing myth of the “disgruntled employee” hides the reality of our common humanity. It is impossible to hear the adjective “disgruntled” without filling in the noun “worker,” and conjuring an image of a madman spraying bullets from an automatic rifle.

The myth serves intertwining legal and psychological purposes for employers and their counsel.   A long term, productive employee is viewed as damaged.  He or she suddenly becomes a “complainer,” “a trouble maker,” “not a team player,” “unable to communicate,” “uncooperative,” “unresponsive to constructive criticism,” “an alarmist,” someone who “games the system,” “insubordinate.”  Managers targeting these employees sometimes send lengthy and detailed emails documenting “deficiencies” which were neither observed nor noted before the employee raised questions of discrimination or harassment on the job.  As part of this management mythology, employers assume that an employee who complains does so out of a failure of character: the employee must be permanently and irrationally dissatisfied by his or her lot in life, and with his or her workplace in particular.  They believe, or claim to believe, that the employee is dangerous.

Management’s goal is to cast the person as fundamentally unlikeable, less worthy of respect, “less human.”  Ultimately, management lawyers who demonize the worker who reports a problem by treating them as quasi-criminals, put the entire workforce at risk.  When the starting point is that complaints come mainly or exclusively from defective personalities, employers fail to take reports seriously. They fail to remedy problems before they grow more serious.  They ignore warning signs of sexual predators. They fail to correct safety hazards. They allow mistreatment of older workers. They make it harder for a parent to care for his or her children.

There is a better way.  When a manager puts aside defensiveness and character assassination, and sees the care and loyalty driving an employee complaint, he or she is likely to recognize issues that are critical to the well-being of the employer’s enterprise. Unfortunately, conflict feels less troubling when the enemy isn’t quite so human.  I sometimes think these employers missed a chance to get to know my clients in all their humanity.  But perhaps it is simply easier for them to forget the people they once knew.

This blog originally appeared in CELA VOICE on August 14, 2014. Reprinted with permission. http://celavoice.org/author/marvin-krakow/.

About the author: Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

 

United Workers Win WARN Act Victory in Baltimore ESPN Zone Case

Wednesday, January 23rd, 2013

kari-lydersenWhen the ESPN Zone restaurant in Baltimore’s touristy Inner Harbor development closed abruptly on June 16, 2010, about 150 workers lost their jobs. Most were paid low hourly wages with few benefits, barely making ends meet and relying on the busy summer tourist season to get them through the slow winter months. Because they’d only found out about the closing only a week earlier, they had little chance to find new employment for the summer.

In October 2010, United Workers, a grassroots advocacy group running a larger campaign for economic justice and human rights at Inner Harbor establishments, helped some of the laid-off workers file a federal lawsuit alleging violations of the Worker Adjustment and Retraining Notification (WARN) Act. The lawsuit named the Walt Disney Company—which owned the Inner Harbor ESPN Zone, as well as four other locations around the country that also closed in summer 2010—and its subsidiary Zone Enterprises of Maryland LLC, which operated the Inner Harbor location. On Jan. 3, 2013, more than two years after the lawsuit was filed, a U.S. District judge issued a ruling that United Workers see as an important victory, stressing the importance of the federal WARN Act and launching a process wherein workers will be able to collect additional pay due to them under the act.

The WARN Act requires that companies give workers at least 60 days’ notice of mass layoffs and mandates that if a company fails to give adequate notice it must pay workers 60 days’ worth of wages from the date notice is given. The amount is to be based on the worker’s average wages over the last three years or their pay rate at the time of closing. When the Inner Harbor ESPN Zone closed, Disney gave the workers “notice pay”—in the form of weekly paychecks and an end lump sum—and based the amounts on the employees’ earnings during the previous six months. But since the restaurant closed in June, that meant the notice pay was based on a slow season, not the much higher pay for long summer hours they would have actually received had they worked in June, July and August.

The lawsuit argued that this was a violation of the WARN Act, and U.S. District Judge Catherine C.  Blake agreed that workers were due additional pay, launching a second ongoing legal phase in which the pay due to each individual worker will be determined. Andrew D. Freeman, the attorney representing the workers, said they will also seek class action status, meaning all the laid-off workers could be eligible for compensation.

Emanuel McCray, who was a host at the Inner Harbor ESPN Zone, told In These Times that he loved his job and that it had inspired him to want to open his own sports bar and restaurant some day. But he felt betrayed and disrespected by his employers in the way the closing was carried out. “I felt disgusted with them,” McCray told In These Times. “I grew up as a kid watching Disney movies and dreaming of going to Disneyland. What happened killed all that. Now when I see Mickey Mouse or anything to do with Disney, I get really upset.”

Emanuel said that the not only was the pay rate unfair, but the company’s failure to give the workers advance notice was devastating because they couldn’t seek other jobs for the summer. By the time ESPN Zone closed, he said, “all the summer restaurant jobs were already locked up.”

McCray said some workers lost their homes and had to move to other cities with their families after the closing. He has struggled to find steady work since—he does D.J. gigs and was a service manager at Wal-Mart. He also does work with United Workers and the Waterfront Partnership, a company that works with city officials and business owners to promote sustainable development along Baltimore’s waterfront.  (A silver lining in the ESPN Zone situation has been that McCray thinks he’s found his true calling as a social justice activist, building on his college major in political science. He is considering running for elected office and otherwise working to improve the local community.)

Freeman, the workers’ attorney, told In These Times that the situation laid bare larger disturbing truths about “the disrespect this country shows to hardworking people in low wage jobs.”

“What Disney failed to pay these workers is a couple hundred thousand dollars,” he said. “Disney has probably paid more than that to its lawyers to fight this case—and to my firm in attorneys’ fees. So the lawyers end up making more money than the workers this law was intended to benefit, who have been waiting for two-and-a-half years and will wait some substantial additional time, when they’re the ones who really need the money.”

Freeman told In These Times that about 35 ESPN Zone workers showed up to United Workers’ initial meeting about the situation, and he realized that all of them combined probably made less per hour than he charges as an attorney. “There’s something wrong with our society,” he said, “when you can hire 35 of those workers for the cost of one hour of my time or the time of Disney’s lawyers.”

In its response to the lawsuit, Disney argued that the WARN Act allows temporary pay reductions of up to 50 percent without notice, and said the workers got more in notice pay than they would have in such a situation. But Freeman noted that the pay reduction provision of the WARN Act is only supposed to apply during a temporary downturn when the business is ultimately remaining open—not in a closing situation like ESPN Zone’s. In her decision, Judge Blake agreed with Freeman that the provision did not apply to the case at hand.

Blake also agreed with the plaintiffs in finding that Disney illegally tried to get out of paying some workers the full amount due under its own corporate severance pay provisions, by essentially subtracting the WARN Act pay from the additional severance due the employees (Disney’s written severance pay policy specifically says that notice pay given under the WARN Act will count toward the severance pay the company owes workers). “I found that one of the most offensive parts of this,” Freeman told In These Times.  “They wrote their severance plan in a way that explicitly compensated violating the WARN Act. As the judge said, that’s a violation of both the letter and the spirit of the law.”

Freeman said Blake’s decision should help strengthen the WARN Act for future litigation. “There’ve been arguments that ESPN Zone and some other employers have tried to rely on to avoid giving workers notice that the Act requires, or paying them less than their full wages if they did violate the Act,” he said. “The court in this case made clear that the Act means what it says.”

This article was originally posted on Working In These Times on January 15, 2013. Reprinted with Permission.

About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

America Holding Walmart’s Feet to the Fire

Wednesday, December 5th, 2012

Finally, someone is holding Walmart directly accountable for the abuse of workers in its contracted warehouses. “Recent discovery has established that Walmart bears ultimate responsibility for the violations of state and federal law committed against plaintiff warehouse workers,” said a court document filed in Los Angeles.  

Walmart Targeted In Warehouse Worker Lawsuit – Huffington Post  

“Wal-Mart employs a network of contractors and subcontractors who have habitually broken the law to keep their labor costs low and profit margins high. We believe Wal-Mart knows exactly what is happening and is ultimately responsible for stealing millions of dollars from the low-wage warehouse workers who move Wal-Mart merchandise.”

Warehouse Workers Sue Wal-Mart for Back pay and Damages – ABC News/Univision 

Corporate Welfare: instead of taking a small partition of their record profits, or slightly cutting CEO pay to help out their workers, Walmart wants YOU, the taxpayer, to pay for its workers’ healthcare. Just one more reason Walmart workers, and the population at large, are standing up to Walmart. 

Walmart Wants Taxpayers to Pick Up Health Care Costs – Truth Dig

Walmart wants you to think its workers love the store and love their jobs. If that’s the case, why are there unprecedented protests against the mega retailer spanning the country? Why is the store facing a lawsuit from contracted warehouse workers? Since Walmart has given us no real evidence that its workers love the store, maybe we are just supposed to take Walmart’s word for it? 

Walmart Wants You To Know That Their Workers ‘Love Their Jobs’ – Huffington Post

This post was originally posted on Change to Win on Monday, December 3, 2012. Reprinted with Permission.

About the Author: J Lefkowitz: Change to Win is a Strategic Organizing Center which focuses on using its “strength in numbers to reclaim the American Dream.” It’s target is middle class and working class Americans to hold corporations  and other large entities in our modern society accountable. You can learn more about Change to Win here.

Sickened South African Mine Workers Seek Justice in Courts

Wednesday, September 12th, 2012

South Africa’s mining industry has been plastered across international headlines in recent days following the massacre of 34 protesting platinum mine workers in Marikana. This week, thousands of striking workers marched to protest the assault on labor rights and economic security by both the police and corporations.

But while the media’s gaze has fixed on roiling unrest at Lonmin, the more insidious crisis of safety conditions in the mines remains mostly buried below the surface. Over the years, perhaps hundreds of thousands of workers have been gradually sickened or killed by an epidemic that has largely gone ignored by the industry and the post-Apartheid government.

But now, some workers are resisting injustice in the mines by going to court, with a group of lawsuits alleging that three gold mining companies sickened many employees with toxic exposures that are tied to “varying degrees of silicosis”–a disease that causes chronic breathing problems–as well as tuberculosis and lung cancer.

The legal claims, which target AngloGold Ashanti (formerly Anglo American), Harmony Gold Mining Company, and Gold Fields, have been advanced by a recent landmark ruling by the South African Constitutional Court. The decision affirms that injured workers have the right to sue employers for occupational health-related damages.

The principle behind the litigation, according to Richard Lewis, an attorney with Hausfield LLP who is assisting the South African counsel, is that that the country’s mining regulations, some stretching back decades, as well as common law and the constitution, “impose a duty on the employer to provide safe and healthy working conditions.”

Lewis notes the decision is “uniquely” progressive, even compared to the legal framework in richer industrialized countries like the United States, because the recent court decision effectively offers an alternative to the traditional workers’ compensation system, which is known for woefully inadequate payments to sick workers–and for discrimination against black claimants.

“Usually one’s claim against an employer is limited to the workers’ compensation system,” Lewis says. “You can’t go to court in the civil common law system and sue for damages. But here… in South Africa the miners do have that right, to go beyond the compensation system and into the common law courts.” (In the United States, injured workers often face dysfunctional state workers’ compensation bureaucracies that tend to get ensnared by severe budget pressures.)

Even when workers aren’t being mowed down by police, death is never far from South Africa’s mines; workers have been routinely exposed to toxins with appallingly minimal physical protection. In a Reuters investigation published in March, a mine worker interviewed in Lesotho, who had worked for Gold Fields for more than three decades before being laid off in 2008, explained the do-it-yourself safety protocol:

“The only safety gear they gave us was gloves,” said 55-year-old Tele Nchaka… “We didn’t have masks. To stop the dust, we just had old T-shirts that we used to make wet.”

The impact of the gold miner litigation could be massive: According to Hausfeld, “between 320,000 and 500,000 black southern African gold miners have contracted silicosis and other occupational lung diseases in prior decades. The highest recorded rates of TB in the world have been found in the gold mines of South Africa and the disease figures have remained unconscionably high for decades.”

The next step for the current plaintiffs is to press forward with certification as a legal “class” and move toward a trial. The structure of the litigation leaves the door open for more workers to join the suit down the line, and some experts anticipate an explosion of claims due to the size of the workforce, the widespread presence of migrant workers from countries like Botswana and Malawi, and the prevalence of silicosis.

As with many other countries, including the United States, the health threats plaguing mine workers aren’t so much a product of lax laws; regulatory conditions have somewhat improved in recent years. The problem, says Lewis, is systemic failure of enforcement:

There is no lack of knowledge on how to prevent occupational lung disease. [It’s] not so much that the laws are weak, but that they’re not enforced. And so in reality they become weak and the workers don’t get the protection they deserve and that they need. And I think that’s true around the world.

This is the tragic subtext to many of these mine safety crises–from the chokehold of black lung in Appalachia to the Chinese mine explosions that regularly bury workers alive. The laws on the books aren’t applied on the ground, and workers are generally left at the mercy of the regulatory bodies that lack the staff and institutional capacity to hold employers accountable or prevent future hazards.

The claimant at the head of the compensation lawsuit that led to the breakthrough ruling, Thembekile Mankayi, died just before the court issued its decision in March 2011, as a result of respiratory illness attributed to his work at an underground mine near Johannesburg. Mankayi had toiled for Anglogold from 1979 to 1995, but although his career spanned through the fall of Apartheid, his body ultimately expired before he could see justice served in a democratic South Africa.

But some redemption may be on the horizon for many others sickened by the mines if the legal system finally provides them fair compensation. Under a neoliberal economic regime, South Africa’s mines remain haunted by the ghosts of Apartheid. But at least for some of the workers whose bodies bear the scars of that history, justice is no longer so far out of reach.

This blog originally appeared in Working In These Times on September 12, 2012. Reprinted with permission.

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

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