Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘lawsuits’

HR Has Never Been on the Side of Workers. #MeToo Is More Proof.

Monday, January 8th, 2018

After human resources was informed in 2014 that Emily Nestor, former front desk assistant for the Weinstein Company, was allegedly sexually harassed by Harvey Weinstein, company officials reportedly informed Nestor that any complaints would be directly reported to Weinstein himself. 

And when Helen Donahue, a former Vice employee, complained to human resources in 2015 that Jason Mojica, the head of Vice News at the time, had non-consensually groped her, she says she was told by then-human resources director Nancy Ashbrooke to “forget about it and laugh it off.”

Engineer Susan Fowler says that when she complained to Uber’s human resources department that a manager had propositioned her for sex, she was instructed to either move to a different job at Uber or continue working for her alleged harasser. A manager later threatened to fire Fowler for registering the complaint with human resources, she claims.

As #MeToo testimony shines new light on these industries’ cultures of rampant sexual violence, the complicity of human resources is a thread running throughout several stories of predation and retaliation. While some have presented HR departments as a solution, the above experiences make clear that HR is at best a distraction from the real solution to workplace abuse: collective organizing led by, and accountable to, workers themselves. As unions and worker organizations have long recognized, workplace abuse will not be corrected by benevolent management—it must be defeated by worker power.

Presented as neutral arbiters, human resources departments in fact report to management and function to shield bosses from repercussions. They emerged from early anti-union efforts and social-control initiatives implemented by notorious industry titans like the Ford Motor Company—and today often house top-down efforts to undermine worker solidarity and protect companies from lawsuits. Some labor historians and organizers tell In These Times that the present climate offers an opportunity to dispense of the falsehood that human resources departments exist to protect workers.

“Human resources departments exist primarily to keep the employer from being sued,” author and longtime labor organizer Jane McAlevey tells In These Times. “While they may play functional bureaucratic roles, the chief purpose of HR departments in my experience—after a lifetime in the labor movement—is to protect the company, not workers. Obviously they will be totally ineffective to address the sexual harassment crisis in this country.”

As Weinstein and others of his ilk now fall from grace, any effective postmortem must examine human resources among the structural foundations that uphold powerful men as they perpetrate large-scale harm.

“Treating labor as a commodity”

According to the anti-harassment policy of the Society for Human Resource Management, human resources departments are in place to help employers “prevent, correct and discipline behavior” that qualifies as “unlawful discrimination or harassment of any kind.”

Yet, the history of human resources departments tells a different story.

Elizabeth Anderson is a professor of Philosophy and Women’s Studies at the University of Michigan and author of Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It). She tells In These Times that the roots of modern-day human resources can be traced to initiatives like the Ford Motor Company’s “Sociological Department,” established in 1914. With its introduction of a $5-per-day pay rate, deemed a boost at the time, the company established codes of conduct to ensure that workers were sufficiently orderly and worthy of this sum. The Henry Ford, an organization that oversees a museum in Dearborn, Mich., describes this program:

The Sociological Department monitored employees at home, as well as on the job. Investigators made unannounced visits to employees’ homes and evaluated the cleanliness of the home, noted if the family had renters, checked with school attendance offices to determine if children were attending school and monitored bank records to verify that employees made regular deposits. Sociological Department investigators also assisted workers’ families by teaching wives about home care, cooking and hygiene.

“They really said they were going to govern workers’ lives,” says Anderson, explaining that such efforts were often aimed at “Americanizing European immigrants.”

In the 1920s and 1930s, the Australian sociologist Elton Mayo oversaw a series of experiments at Hawthorne Works, a Western Electric factory in Cicero, Ill. Researchers examined the impact that changes in conditions—for example, brightening and dimming lights—had on workers’ productivity. He concluded that workers perform better when researchers show interest in them—that the perception of attention and interest can itself boost output. The principle that attention is a key workplace motivator became the bedrock of the field of “human relations.” This field influenced companies to create human resources departments to give the appearance that workers are cared for and tended to.

But Peter Rachleff, a labor historian and executive director of the East Side Freedom Library in St. Paul, Minn., tells In These Times that there is a significant gap between appearance and reality.How can you get more of this commodity for less? How can you get more labor produced by that commodity? That’s the grounding of human resources,” he says.

“Where union busters set up camp”

Early human resources departments also had other aims. Peter Cappelli, professor of management at the University of Pennsylvania’s Wharton School, tells In These Times that human resources departments emerged as “a more serious development with the rise of unions. Companies started to see them as a way of keeping unions out. They put in place practices that would buy out discontent.”

“These departments are not set up by the government, and their job is not to protect employees,” emphasizes Cappelli. “These are private organizations.”

With a spate of anti-workplace-discrimination laws and orders passed in the 1960s, including the Civil Rights Act, the focus of human resources shifted to protecting companies from lawsuits. “The idea was [companies] could shield themselves, and workers could be obliged to report their complaints to the internal process,” explains Anderson. “You get a huge incentive for larger corporations to set up human resources departments to shield themselves from liability.”

Today, human resources departments often operate in concert with efforts to undermine unions and other forms of worker organizing. In just one example, the National Labor Relations Board filed a complaint against Tesla in August 2017 charging that the company’s security guards and human resources personnel directly intimidated workers at a Fremont, Calif., factory for distributing pro-union materials—and ultimately forced them to leave the premises. The complaint states that a human-resources official “interrogated” an employee about “the employee’s Union and/or protected, concerted activities and/or the Union and/or protected, concerted activities of other employees.”

As McAlevey puts it, “The human resources department is the traditional place where union busters set up camp—the office out of which union-busting firms will run union-busting campaigns.”

Of course, the absence of a human resources department is not a good in itself, and abolishing HR wouldn’t fix the problem. As Aída Chávez reported January 5 for The Intercept, The New Republic, AlterNet and The Nation Institute “had no real HR when abuses occurred” (Full disclosure: This author is a prior employee of AlterNet and formerly received reporting funding from The Nation Institute’s Investigative Fund.)

While noting that “such departments are no panacea,” Chávez argues that “the absence of any HR department at many small news outlets creates a unique vulnerability for employees, whose fates may rest entirely in the hands of their often charismatic leaders or founders.”

And indeed, the problem of retaliation and intimidation encompasses the vast majority of industries, with or without HR. A 2003 study referenced by the federal U.S. Equal Employment Opportunity Commission “found that 75 percent of U.S. workers who spoke out against workplace mistreatment faced some form of retaliation.”

Organizers have long argued that the solution to workplace harassment lies in building collective solidarity among workers—and tilting the balance of power away from institutions that are under the control of management, including but not limited to human resources.

There is no shortage of organizing efforts lighting the way. The Coalition of Immokalee Workers (CIW) highlights its worker-led Fair Food Program as a bottom-up strategy to protect some of the most vulnerable workers in the United States from a plethora of workplace atrocities, including sexual violence and slavery. The program includes a 24-hour, independent worker-complaint hotline, and worker-led political education and organizing programs. Through broad-based campaigning, CIW has forced 14 food industry giants to join their labor agreement.

From the fields to the factories, union and worker center members engage in day-to-day efforts to protect each other, by staging direct actions, organizing and enforcing contracts, and extending support and solidarity, in the many forms that takes. As McAlevey puts it, “What changes is if you have a union.”

This article was originally published at In These Times on January 8, 2018. Reprinted with permission. 

About the Author: Sarah Lazare is web editor at In These Times. She comes from a background in independent journalism for publications including The Nation, Tom Dispatch, YES! Magazine, and Al Jazeera America. Her article about corporate exploitation of the refugee crisis was honored as a top censored story of 2016 by Project Censored. A former staff writer for AlterNet and Common Dreams, Sarah co-edited the book About Face: Military Resisters Turn Against War.

This Year's Top Five Reasons They're Attacking "Greedy" Trial Lawyers and "Frivolous" Lawsuits

Tuesday, June 14th, 2016

Arthur BryantWhen corporations or the government value money over lives and safety, injure people, or discriminate against them, the courts are where they can be held accountable. But corporate and government wrongdoers don’t want to be held accountable.

That’s why, for decades, they’ve been waging a massive propaganda campaign to demonize trial lawyers, litigation, juries, and our system of justice. They’re trying to poison public perception by attaching toxic adjectives to everything that could make them pay. They attack “greedy” trial lawyers, “frivolous” lawsuits, “runaway” juries, and “jackpot” justice— and call our legal system a “lottery”—because they don’t want justice to be done.

Each year, Public Justice counters this self-serving, corporate PR campaign by making sure people know the truth. We recognize the lawyers who made the greatest contribution to the public good by trying or settling a case as finalists for our nationally-prestigious Trial Lawyer of the Year Award.  This year’s finalists, listed alphabetically by case name below, will be honored—and the winner will be announced—at Public Justice’s 34th Annual Gala & Awards Dinneron Sunday, July 24, at the Millennium Biltmore Hotel in Los Angeles.  Their cases show what trial lawyers and lawsuits can do — and why they’re really being attacked.

Andrews v. Lawrence Livermore National Security

In 2008, Lawrence Livermore National Laboratory was taken over by a private company, Lawrence Livermore National Security (LLNS), controlled by the Bechtel Corporation and the University of California. LLNS promised to save the federal government $50 million annually. To do so, it then fired more than 400 of the lab’s most senior workers, including many top scientists and researchers. It gave them one hour to pack up their belongings and return their badges before they were “perp-walked” out of the lab.

Gary Gwilliam and his team at Gwilliam, Ivary, Chiosso, Cavalli & Brewer and Omar Habbas of Habbas & Associates would not let this stand. They sued on behalf of 130 workers, litigated for more than seven years, and won a $2,728,327 jury verdict for breach of contract and breach of implied covenant of good faith and fair dealing for five test plaintiffs. They then negotiated a $37.25 million settlement for 129 of the 130 plaintiffs—the equivalent of over three years’ salary for each. When the defendants insisted that the settlement be confidential, the plaintiffs’ counsel refused—because the public had a right to know the disastrous effects of the government’s attempt to privatize a national lab.

Fox v. Johnson & Johnson

Johnson & Johnson (J&J) is famous for its healthcare and hygiene products, which have become staples in American homes. Consumers trust that J&J will ensure that its products are safe and alert them to any potential dangers it knows. A deadly breach of that trust led to the death of Jacqueline Fox, who used two of the company’s talc-based feminine hygiene products—J&J’s Baby Powder and Shower to Shower Body Powder—daily for over 35 years.

Jere Beasley and his colleagues at Beasley, Allen, Crow, Methvin, Portis & Miles, along with attorneys from Onder, Shelton, O’Leary & Peterson, LLC, The Smith Law Firm; and Ferrer, Poirot & Wansbrough proved J&J knew that long-term use of talc had been linked to ovarian cancer, but never disclosed that fact—even after the company’s talc supplier began warning of its dangers.  In the first case holding the company liable for talc-caused injuries, the jury awarded $10 million in compensatory damages and $62 million in punitive damages. The case laid the groundwork for the 1,200 similar suits J&J is currently facing.

Jones (Varden) v. City of Clanton
and similar cases

Every night in America, about 500,000 people sit in jail because they cannot afford to pay bail—the largest pretrial detainee population in the recorded history of the world. These detainees, who have not been tried yet and are often held for minor, non-violent offenses, constitute 60 percent of the U.S. jail population and cost counties $9 billion in 2011 alone. While they’re held, they can lose their jobs or homes, be beaten or attacked, or simply fall prey to unsanitary and depressing conditions. So many plead guilty, regardless of whether they committed the crime, just to get out and go home.

Alec Karakatsanis of Equal Justice Under Law in Washington, DC, along with counsel from Dawson Law Office, McGuire & Associates, ArchCity Defenders, the Roderick & Solange MacArthur Justice Center, and William P. Quigley used litigation to start ending this practice. In a series of lawsuits first filed on behalf of Christy Dawn Varden, a mother of two held in jail because she could not afford to pay bail, they argued that keeping a person in jail because she could not pay bail—without an inquiry into her ability to pay—was unconstitutional. The U.S. Department of Justice agreed. Their lawsuits stopped unconstitutional poverty jailing practices in Clanton, AL; Ascension Parish, LA; Velda City, MO; Moss Point, MS; Similar lawsuits have been filed in dozens of other cities.

Linde v. Arab Bank

The Anti-Terrorism Act (ATA) of 1990 allows people who were injured by acts of terror abroad to bring civil suits in federal court. Linde was a mass tort consolidation case with 117 plaintiffs who were injured in suicide bombings and attacks in Israel, 40 wrongful death cases, and 440 family members of those injured or killed. The plaintiffs charged that Arab Bank administered a Saudi-funded universal insurance plan for the benefit of Palestinian terrorists killed, injured, or apprehended by Israeli security forces. For years, branches of the Saudi charity authorized payments ranging from $140 to $5,316 to terrorists and their families.

Michael E. Elsner and two of his colleagues at Motley Rice, C. Tab Turner of Turner & Associates, and lawyers from Osen LLC; Sayles Werbner;Stone, Bonner & Rocco; Heideman, Nudelman & Kalik; MM-Law; Kohn, Swift & Graf; Zuckerman Spaeder;  AG International Law; and Peter Raven-Hansen worked for over a decade to bring the case to trial.  In September 2014, a federal jury held Arab Bank liable. In August 2015, three days before the trial on damages was supposed to start, the parties reached a confidential settlement. This is the first case to hold a financial institution liable under the ATA. It and related cases aim to curtail the flow of money to terrorist organizations by holding financial institutions that aid them responsible.

Reckis v. Johnson and Johnson

In 2003, seven-year-old Samantha Reckis came down with a fever that her parents treated with over-the-counter Children’s Motrin, made by J&J and its subsidiary, McNeil-PPC. After two doses, she developed a rash that spread from her face to her trunk. After several more doses, Samantha’s body was covered in blisters and she was diagnosed with a potentially deadly adverse drug reaction called Toxic Epidermal Necrolysis (TEN). The affliction left Samantha legally blind and in need of a lung transplant. She suffered moderate brain damage and was left unable to bear children. When she was discharged, she weighed just 30 pounds.

Bradley M. Henry and his co-counsel at Meehan, Boyle, Black & Bogdanow, along with Robert S. Peckof the Center for Constitutional Litigation, helped the Reckis family get justice. They sued J&J, proving the company had known since the 1980s—and failed to warn customers—that Motrin and other ibuprofen-based products were causally linked to Stevens-Johnson Syndrome, a life-threatening skin condition, and TEN, which has a 40% mortality rate and almost always leads to blindness and other severe life-long ailments. The jury awarded Samantha and her family $63 million, which grew to $112 million over three years as J&J fruitlessly appealed all the way to the U.S. Supreme Court.

Public Justice honors these lawyers because of their extraordinary work fighting injustice, taking great risks (trial lawyers don’t recover any fees unless they win), and accomplishing great things. The short paragraphs above are just summaries of these teams’ incredible work. Fore more details, including the names of all the finalists, click here.

But let’s be clear. These cases exemplify what lawsuits and trial lawyers do. That’s why Corporate America and irresponsible public officials keep talking about “frivolous” lawsuits and “greedy” trial lawyers. It’s a lot easier than talking about their outrageous misconduct, their fear of liability, and their hope for immunity for their wrongdoing.

Don’t let them get away with it. Share this with others. Spread the word.

The problem isn’t “frivolous” lawsuits or “greedy” trial lawyers. The problem is the injustice we need lawsuits and trial lawyers to expose, remedy, and prevent.

This blog originally appeared on Public Justice on June 13, 20016. Reprinted with permission. 

Arthur H. Bryant, Chairman of Public Justice, has won major victories and established new precedents in several areas of the law, including constitutional law, toxic torts, civil rights, consumer protection, and mass torts. The National Law Journal has twice named him one of the 100 Most Influential Attorneys in America.

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