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Posts Tagged ‘Retaliation’

State Department watchdog details political retaliation against 'disloyal' staffers

Friday, August 16th, 2019

Nahal ToosiTop officials in the State Department bureau that deals with international institutions engaged in “disrespectful and hostile treatment” of staffers, including harassing some over suspicions that they were “disloyal” due to their suspected political views, a federal watchdog says.

At least one top career employee was forced out of her position for inappropriate reasons, while others found themselves stripped of their duties because of their superiors’ political biases, according to the watchdog.

The findings were contained in a report published Thursday by the State Department inspector general’s office. The report, obtained in advance by POLITICO, is the first of two from the inspector general that explores allegations that President Donald Trump’s political appointees retaliated against career State Department employees. The second report is still being drafted.

Thursday’s report singles out the assistant secretary of State for the department’s Bureau of International Organization Affairs, Kevin Moley, as failing to stop the misbehavior despite numerous complaints. It also contains a raft of examples of alleged inappropriate actions by Mari Stull, another senior political appointee in the bureau, who has since left.

Stull and Moley were said to have “frequently berated employees, raised their voices, and generally engaged in unprofessional behavior toward staff,” according to the report.

The majority of the employees the inspector general’s office interviewed “either directly experienced hostile treatment or witnessed such treatment directed at others. In fact, one IO employee told [the Office of the Inspector General] that working with Ms. Stull involved ‘six to eight hostile interactions per day.’”

The report has been eagerly anticipated by Democrats in Congress. On Thursday, Rep. Eliot Engel of New York, the chairman of the House Foreign Affairs Committee, called its findings “offensive” and said that Moley should “resign or be fired.”

Engel added that he and his colleagues “won’t stop until this culture of impunity is ended and everyone responsible faces stiff consequences.”

Moley did not immediately reply to a request for comment, but in a response to the investigation, which the inspector general included in his report, he said the misbehavior attributed to him “does not represent the person I am or have ever been.” He also insisted that many of the alleged incidents had been mischaracterized.

Stull, who served as a senior adviser to Moley, could not immediately be reached for comment. She declined the inspector general’s interview request during the investigation. Because she was no longer a federal employee — she left the State Department in January — she was not required to cooperate.

Stull, who was known to describe herself as “the Vino Vixen” because of her past keeping of a wine blog, was also alleged in past media reports as having tried to keep lists of career government staffers she considered disloyal or loyal to the president.

The report did not appear to directly address that allegation, but it noted that many of the bureau’s staffers said Moley and Stull “made positive or negative comments about employees based on perceived political views.”

For example, several career employees reported that throughout her tenure at the department, Ms. Stull referred to them or other career employees as “‘Obama holdovers,’ ‘traitors,’ or ‘disloyal.’”

Moley, however, insisted to the inspector general’s office that “the only occasion on which he heard Ms. Stull make such remarks was in reference to former political appointees whom she believed were converted to career employees.”

Career government staffers are sworn to serve in government in a nonpartisan fashion, no matter who or which party controls the White House. But many of Trump’s political appointees believe there exists a “deep state” among the career staffers that is determined to thwart the president’s agenda.

The Bureau of International Organization Affairs deals with institutions such as the United Nations. That description alone made it a target of scorn among some top Trump political appointees because of the Republican president’s general disdain for multilateral institutions.

In Stull’s case, it may not have been all about ideology. Investigators wrote that they found evidence that she tried to retaliate against two employees of the bureau who she determined had failed to help her deal with a legal issue in one of her past jobs.

Stull had previously worked at the U.N.’s Food and Agriculture Organization, and had filed an administrative claim regarding her time there. While still at the FAO, she tried to enlist a staffer in the State Department bureau to help with her case. The employee, after talking to his manager, consulted with legal advisers, who told him it was best not to intervene.

The report describes how, after joining the bureau, Stull went out of her way to undermine and complain about that employee and his manager.

“Ms. Stull’s criticism of these employees and her attempts to remove job responsibilities from the employee whose assistance she sought appear likely to have been based on her belief that the individuals did not provide her with sufficient assistance in her private employment dispute,” the report states.

In at least one case, the report says, there’s strong evidence that Moley forced out a high-ranking staffer — a principal deputy assistant secretary with an excellent record and extensive experience — after she raised concerns to him about Stull’s behavior and morale issues in the bureau.

“The circumstances of Assistant Secretary Moley’s removal of the PDAS suggests that he undertook a personnel action based on non-merit factors, namely, her articulation of concerns about Ms. Stull’s conduct,” the report states.

In another case, Moley and Stull are accused of deciding not to fill a bureau role that dealt with human rights because they did not like the leading candidate for the role, possibly because of the person’s relationship with the LGBTQ community. The person’s past work dealing with the U.N. agency that deals with Palestinian refugees was also said to have bothered Stull, who felt the agency was anti-Semitic.

Stull and Moley didn’t appear to understand or be willing to follow established chains of command at the State Department. They would assign duties to staffers without going through supervisors, for instance, or get upset if they weren’t immediately copied on certain papers, even though staffers were following standard procedures on when to route papers to them.

“For example, in April 2018, Ms. Stull asked a mid-level employee, without going through the employee’s supervisors, for information about another nation’s contributions to the UN,” the report states. “Ms. Stull did not believe the data provided was accurate, called the work product ‘garbage,’ and threw it at another employee.”

In one case, Moley is said to have implied, in an email, that the reason he needed to offer clearance on a document was to make sure it reflected the Trump administration’s position.

In another case, multiple witnesses said Stull and Moley had berated a junior employee over a document-routing issue, making her cry. Moley told investigators that he’d never raised his voice at an employee, and that the only time he had heard Stull raise her voice was to him.

Employees alleged that Stull even criticized some of them for clearing certain documents before she’d joined the bureau. “Two employees told OIG that Ms. Stull’s inappropriate conduct had become so pervasive that employees were afraid to put their name on any clearance pages,” the report states.

Moley, meanwhile, “criticized employees when they told him that official travel that he planned in May 2018 did not qualify for first class accommodations under the department’s travel policies and accused them of ‘not fighting hard enough’ to meet his demands,” the report states.

Stull appeared especially fixated on the career staffers’ political views, even though such employees are supposed to serve in a nonpartisan fashion. Some staffers told investigators that “Stull made positive comments about some specific career employees because they reportedly made contributions to Republican candidates.”

Stull also berated an employee because she’d accompanied a delegation of members of the Congressional Black Caucus to the United Nations. The bureau’s staffers routinely accompany such delegations regardless of its composition, the report notes. But Stull “expressed displeasure with her for accompanying the Congressional Black Caucus delegation because it consisted of only Democratic members.” She accused the employee of trying to “thwart” Trump’s agenda, the report says.

The staffer soon found herself stripped of many of her responsibilities; she eventually left the State Department.

Inspector General Steve Linick recommended that the department develop a “corrective action plan” to fix the leadership deficiencies in the bureau. He also recommended that the department consider other moves, including “disciplinary action” against Moley.

The State Department has agreed on both counts.

Linick has been investigating allegations that Trump appointees had targeted career staffers for political retaliation since spring 2018. His other cases include ones involving the alleged actions of aides to former Secretary of State Rex Tillerson. They include one case exposed by POLITICO in which a career staffer of Iranian descent was ousted from a top policy role.

Linick’s investigation grew to cover the international organizations bureau after a June 2018 report in Foreign Policy about Stull, whom career staffers accused of deeply hostile behavior, including compiling loyalty lists.

The report issued on Thursday is based on thousands of emails and other documents, as well as investigators’ interviews with more than 40 people, including Deputy Secretary of State John Sullivan. Secretary of State Mike Pompeo is not listed as having been interviewed.

“Nearly every employee interviewed by OIG raised concerns about the leadership of IO and the treatment of staff,” the report states.

The report, in a footnote, says Stull sent the inspector general’s office a letter in August 2018 that raised concerns “regarding fraud, waste, and abuse, as well as allegations that she had herself experienced retaliation as a result of her efforts to address these concerns.”

Investigators have looked separately into Stull’s claims, but they noted that the probe that led to the soon-to-be-released report did not uncover information to corroborate her allegations.

Many staffers said that they approached Moley with concerns about sinking morale, but that he would minimize it, according to the report. Moley told investigators no employee had ever brought such concerns to him.

“When individuals raised concerns with Ms. Stull about her treatment of employees, she asserted that she was herself the victim of harassment and informed at least one employee that raising such concerns was pointless because the Trump administration ‘has my back,’” the report states.

The report details several attempts by the State Department’s top leaders to get Moley and Stull to adjust their behavior, but it appeared to have limited effect, according to the report.

“Approximately 50 of 300 domestic IO employees have departed IO since Assistant Secretary Moley took over its leadership, and nearly all of the former employees who OIG interviewed stated that poor leadership of the bureau contributed to their decision to depart,” the report states.

This article was originally published by Politico on August 15, 2019. Reprinted with permission. 

About the Author: Nahal Toosi is a foreign affairs correspondent at POLITICO. She joined POLITICO from The Associated Press, where she reported from and/or served as an editor in New York, Islamabad, Kabul and London. She was one of the first foreign correspondents to reach Abbottabad, Pakistan, after the killing of Osama bin Laden. Prior to joining the AP, Toosi worked for the Milwaukee Journal Sentinel, where she mostly covered higher education but also managed to report from Iraq during the U.S. invasion in 2003, as well as from Egypt, Thailand and Germany.

OSHA Weakens Workers’ Protections Against Retaliation for Reporting Injuries

Friday, October 12th, 2018

The Occupational Safety and Health Administration issued a memo Thursday weakening workers’ protection against employer retaliation for reporting injuries and illnesses.

Section 1904.35(b)(1)(iv) of the Obama administrations 2016 “Electronic Recordkeeping Rule” told employers that “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

According to Deborah Berkowitz, former OSHA policy director under the Obama administration:  “Protection from retaliation when reporting an injury is a core worker right enshrined in both the OSHA law and OSHA regulations. It is outrageous that this Administration is trying to roll back these core protections and allow industry to further hide injuries and illnesses. ”

This is the same recordkeeping regulation that requires some employers to send in their injury and illness logs to OSHA, information that the Obama administration had planned to use for research, targeting inspections and publish on OSHA’s website. OSHA is currently proposing to repeal the second part of that regulation that would require employers to send in more detailed information.

Background

The Bureau of Labor Statistics (BLS) reports that around 3.7 million workers are seriously injured in the workplace every year. But the BLS and other researchers have shown wide-spread underreporting of injuries and illnesses — mainly because employers discourage workers from reporting — making the true toll to be two to three times greater—or 7.4 million to 11.1 million.

During the comment period leading up to issuance of the 2016 regulation, workers and researchers testified and submitted evidence about how employers discouraged reporting by retaliating against workers for reporting injuries and illnesses. The feared that the regulation would increase such retaliation and called for OSHA to strengthen protections beyond the weak language in Section 11(c) of the Occupational Safety and Health Act.

Protection from retaliation when reporting an injury is a core worker right enshrined in both the OSHA law and OSHA regulations. It is outrageous that this Administration is trying to roll back these core protections and allow industry to further hide injuries and illnesses.  — Deborah Berkowitz, former OSHA Policy Director

Employer associations like the Chamber of Commerce hated OSHA’s anti-retaliation language and some are particularly upset that OSHA didn’t include repeal of that language in their current attempt to weaken the regulation.

Of course, they would never admit to actually wanting to retaliate against workers from reporting, so they focused their opposition on two areas where retaliation was common that OSHA emphasized in the preamble to the regulation: rate-based incentive programs that discourage workers from reporting injuries, and post-injury drug tests that employers often require with the intent of discouraging workers from reporting injuries or illnesses.

The memo that OSHA issued did not change the wording of the regulation; it just affected how effectively OSHA inspectors would be able to enforce the language.

Incentive Programs

Workers described common employer incentive programs where an employer would offer some kind of prize to a group of workers that would then be withdrawn if a worker reported an injury. As the preamble described:

An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety. The USW provided many examples of employer incentive policies that could discourage reporting of work-related injuries and illnesses.  One employer had a policy that involved periodic prize drawings for items such as a large-screen television; workers who reported an OSHA-recordable injury were excluded from the drawing.

The American College of Occupational and Environmental Medicine noted that many of its member physicians reported knowledge of situations where employers discouraged injury and illness reporting through incentive programs predicated on workers remaining “injury free,” leading to peer pressure on employees not to report.

A 2012 GAO study found that rate-based incentive programs, which reward workers for achieving low rates of reported injury and illnesses, may discourage reporting.

Incentive programs are based on the “blame the worker” theory of accident prevention. That theory states that if only workers would be more careful, there wouldn’t be as many injuries. And offering workers a prize will encourage them to be more careful. Actually, most workplace incidents are caused by unsafe conditions — machines without guards, slippery floors, lack of fall protection, etc. — not worker carelessness.

Giving out prizes or bonuses doesn’t prevent injuries – it discourages injured workers from reporting their injuries.  Workers don’t need bonuses to work safely, they need safe workplaces.”   — Dr. David Michaels, former OSHA Assistant Secretary

As former OSHA director David Michaels explained, “No one avoids getting hurt simply to get a prize at the end of the week or a bonus at the end of the year. Giving out prizes or bonuses doesn’t prevent injuries – it discourages injured workers from reporting their injuries.  Workers don’t need bonuses to work safely, they need safe workplaces.”

The OSHA regulation didn’t prohibit all incentive programs. Those incentive programs that reward workers, for example, for activities “such as identifying hazards or participating in investigations of injuries, incidents, or “near misses” were perfectly acceptable. Only incentive programs based on injury or illnesses rates were prohibited if they led to underreporting of injuries or illnesses.

OSHA Deputy Assistant Secretary Dorothy Dougherty issued a memo in 2016 laying out for OSHA inspectors how this language was to be enforced.  The memo stated that the anti-retaliation language:

prohibits taking adverse action against employees simply because they report work-related injuries or illness. Withholding a benefit—such as a cash prize drawing or other substantial award—simply because of a reported injury or illness would likely violate section 1904.35(b)(1)(iv) regardless of whether such an adverse action is taken pursuant to an incentive program. Penalizing an employee simply because the employee reported a work-related injury or illness without regard to the circumstances surrounding the injury or illness is not objectively reasonable and therefore not a legitimate business reason for taking adverse action against the employee.

Consider the example of an employer promise to raffle off a $500 gift card at the end of each month in which no employee sustains an injury that requires the employee to miss work. If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury.

Return to Blaming the Worker

The new memo, issued last week under the signature of Kim Stille, Acting Director of Enforcement Programs, stated instead that “Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting.” [emphasis added]

How would an employer ensure that precautions are taken to ensure that employees feel free to report an injury or illness, even if the incentive program results in withholding a prize or bonus because of a reported injury? According to the OSHA memo:

An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

So how is that going to work exactly?

A worker suffers a serious cut on his hand while working on an unguarded machine the day before the lottery for a new riding mower ends.  Fearing that his co-workers will hate him for causing them to lose a chance for the prize, he sticks his bloody hand in his pocket and heads to the local urgent care to have it sewed up, telling them that he did it while working on his car.

Even if OSHA finds out that the incentive program caused the worker to hide the injury, the employer is now home free if there was also a program that rewarded workers for attending safety meetings that identify unsafe conditions in the workplace.

Or they’re safe if the employer conducted a training program that emphasized that they really, really, really wanted employees to report injuries, and they would never in a million years consider retaliating against them (Oh, and if you and your buddies lose the chance at winning the riding mower because you cut your hand, well that’s a shame. Better be more careful next time.)

 

Drug Testing

When developing the regulation, OSHA also compiled evidence that drug testing had been used by employers to discourage injury and illnesses reporting. For example, drug tests were sometime ordered for injuries that couldn’t have been caused by intoxication, such as musculoskeletal injuries that are “often caused by physical workload, work intensification, and ergonomic problems.” The preamble to the regulation therefore referenced as impermissible drug tests administered “irrespective of any potential role of drug intoxication in the incident” and used to deter proper reporting.

OSHA’s original 2016 memo instructed inspectors very clearly that the regulation does not “prohibit drug testing conducted under a state workers’ compensation law or other state or federal law” nor does it prohibit employers from drug testing employees who report work-related injuries or illnesses “so long as they have an objectively reasonable basis for testing.”

The regulation “only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.”

And the 2016 policy put a heavy burden of proof on the agency, stating that “OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason.”

In addition, the drug testing had to measure actual impairment, which meant that OSHA would only permit tests for alcohol use, which is the only drug test that can actually measure impairment.

Furthermore:

Drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.

Employers objected to OSHA’s “intrusion” into their right to drug test employees any time, for any reason. After all, they argued, they should be able to do anything to achieve a drug-free workplace — whether or not employees were using drugs at work or impaired at work, and whether or not the drug testing caused workers to hide their injuries.  And some erroneously warned that the anti-retaliation language would conflict with other laws that mandated or allowed drug testing in certain situations.

The new policy leaves this policy mostly unchanged on paper — allowing drug testing in the same situations it was allowed before — where required by other laws and permitting it when used “to evaluate the root cause of a workplace incident that harmed or could have harmed employees” as long as all involved employees are tested, and not just those who were injured.

But actual enforcement of the language for retaliatory drug testing will inevitably be weakened because the new memo removes language prohibiting drug testing for obviously unrelated injuries or illnesses like musculoskeletal injuries, and removes language prohibiting post-injury drug test except for alcohol.

And the burden of proof for inspectors will now be even higher. Instead of showing that the employer required drug testing just “because the employee reported a work-related injury or illness,” the new burden of proof is to show that “the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

So is an employer home free if they swear that the drug testing was not intended to penalize anyone, but just to “promote safety and health,” (even if it had the effect of discouraging employees from reporting?)  We shall see.

Will this memo be enough to satisfy employers who don’t like the anti-retaliation language? Unlikely. In response to OSHA’s recent proposal to roll back on section of the recordkeeping rule, several employers submitted testimony calling for repeal of the entire regulation — including the anti-retaliation language.

These are Trump Times, after all. It’s the least they can expect.

This blog was originally published at Confined Space on October 12, 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).

What activities are protected from whistleblower retaliation?

Monday, July 30th, 2018

Federal employees have strong — but not unlimited — whistleblower protections. There is too much at stake if you have built a career working for the U.S. government. Before you report wrongdoing or exercise employment rights, you of course want to be sure you won’t jeopardize your job, your benefits and your career.

Namely, it is important to know which activities are specifically protected from retaliation. Some protections are universal for all federal employees, and other whistleblower rules are agency-specific.

Protected whistleblower activities under federal employment law

The follows actions and activities are protected from termination and other forms of whistleblower retaliation:

  • Reporting to your employer a criminal act, law violation, fraud, waste or mismanagement of government funds, abuse of authority, substantial and specific danger to public safety, or threats to the integrity of scientific research such as censorship or manipulation of data
  • Refusing to engage in an unlawful practice, if you have informed your employer that you believe it violates the law
  • Cooperating with internal investigations, including testifying, assisting the investigation or preparing to do so.
  • Testifying before Congress, the EEOC or any federal or state proceeding (or preparing to)

Up to one-third of whistleblowers experience some retaliation

This is a simplified and not exhaustive list of protected activities under the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act. An attorney who specializes in federal employment law can advise on the procedures and protections specific to your agency and your circumstances.

Under the WPEA, you are protected if you report wrongdoing to a supervisor or coworker who participated in the unlawful activity. You are also protected if others have previously reported the same or similar wrongdoing.

You are not protected from adverse employment actions that are unrelated to your disclosures. But all too often, demotions, revocation of security clearance or other adverse actions are veiled and trumped-up retaliation for bringing scrutiny to unlawful activity. And that is exactly what the federal whistleblower laws are designed for.

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

Can an employee on FMLA leave from work attend a night concert?

Monday, October 9th, 2017

A federal court in Texas has dismissed a claim of FMLA discrimination and retaliation by a woman who was fired after attending a Beyoncé concert while she was on personal medical leave. The railroad employee claimed that the company interfered with her rights under the Family and Medical Leave Act and illegally terminated her. The employer countered that she was fired for abusing the leave policy and failing to communicate with her managers per FMLA rules.

The Northern District of Texas judge shut down the woman’s claim with Beyoncé-like finality. But it raises the legitimate question of whether people on medical leave or family leave are entitled to enjoyment of life or expected to sit at home and recuperate in stoic solitude.

Employee’s actions during leave raised eyebrows

The Texas case, Jackson v. BNSF, involved a woman who was under pressure at work. Shortly after management placed her on a performance improvement plan, Ms. Jackson notified her boss that she was taking disability leave for an unspecified medical condition.

The Family and Medical Leave Act allows up to 12 weeks of unpaid leave for a personal health crisis or to care for a seriously ill family member. The employer is not entitled to full details or veto power. But the employer is entitled to ask for status updates and a schedule of when the employee expects to be in and out of the office.

At the beginning of her leave, Ms. Jackson was unresponsive to repeated inquiries about business matters, according to the court documents. A few weeks later, Jackson was spotted by a co-worker at the music concert. In fact, Jackson was watching Beyoncé from the employer’s corporate suite at the stadium.

The employer suspected her leave was an abuse of FMLA policy if not downright fraudulent. When asked to explain her presence at the concert, she did not respond. When pressed again, she emailed that her doctor had not cleared her to discuss work. When given an ultimatum to check in with her manager by a cutoff date, she did not respond. The company moved to terminate, and Jackson later filed suit for FMLA violations and retaliatory discharge.

What is the expectation of employees under FMLA leave?

The employee must give 30-day notice if the leave is foreseeable, or notice “as soon as practicable” if unforeseen. The employee must give the employer sufficient explanation of the nature of the leave. In the case above, Ms. Jackson told her bosses she was under a doctor’s care and was “not well to return to work.” A doctor could conceivably back up such a scenario.

By dismissing Jackson’s claim, the federal judge skirted the question of whether an employee who was not well enough to work could be well enough to attend a concert. Her disability leave, according to court documents, was ostensibly related to a “mental breakdown” over her workload and performance review. Returning to the workplace might have triggered anxieties that after-hours entertainment would not.

People on medical leave or family leave are not precluded from buying groceries, going to church, attending soccer games or otherwise “living their life.” But what about taking a long-planned family vacation while on leave from work? Or continuing with Wednesday night bowling league as a respite from caring for Mom during the day? Or seizing the golden opportunity to see “Queen Bey” from a luxury suite while on disability leave.

Such gray areas may merit legal advice from an employment law attorney. But one moral of the story for anyone on FMLA leave is to stay in communication with the employer. Once that dialogue is closed, the relationship may become highly adversarial.

This article was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 9, 2017. Reprinted with permission.

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

Fox News faces new legal trouble for sexual harassment

Tuesday, June 20th, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Day in the Life of a Day Laborer

Friday, June 16th, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Most of the men are gone, but not him.

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

Comey’s Testimony Underscores Need for Strong Whistleblower Protections

Wednesday, June 14th, 2017

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

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

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

Intimidate and Silence the Whistleblower

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

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

Retaliate Swiftly and Severely Against the Whistleblower

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

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

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

Badmouth the Whistleblower and Their Work History

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

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

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

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

Attack the Whistleblower’s Credibility

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

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

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

Create a Post-Hoc Justification for Firing the Whistleblower

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

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

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

Focus on the Whistleblower’s Alleged Misconduct

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

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

Sue the Whistleblower and Initiate a Retaliatory Investigation

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

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

Why Whistleblowers Deserve Strong Legal Protection

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

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

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

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

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

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

Groundbreaking Bill in Illinois Would Give Temp Workers Equal Pay and Rights as Direct Hires

Monday, February 13th, 2017

Sweeping legislation introduced in the Illinois state legislature last month would dramatically improve pay, benefits and working conditions for almost a million of the state’s temp workers toiling in factories, warehouses and offices.

The Responsible Job Creation Act, sponsored by State Rep. Carol Ammons, aims to transform the largely unregulated temporary staffing industry by introducing more than 30 new worker protections, including pay equity with direct hires, enhanced safety provisions, anti-discrimination measures and protection from retaliation.

The innovative law is being pushed by the worker centers Chicago Workers’ Collaborative (CWC) and Warehouse Workers for Justice (WWJ), which say it would restore the temp industry to its original purpose of filling short-term, seasonal labor needs and recruiting new employees into direct-hire jobs.

Across Illinois, there are nearly 850,000 temp workers every year. Nationally, temp jobs are at record highs, with more than 12 million people flowing through the industry per year.

“Instead of temps just replacing people who are sick or coming during periods of higher production, they’re actually becoming a permanent staffing option,” says CWC executive director Tim Bell. “There’s nothing ‘temporary’ about it.”

Mark Meinster, executive director of WWJ, says there has been “an explosion” of temp workers in recent decades, especially in manufacturing and warehousing. “Those sectors are part of large, global production networks where you see hyper competition and an intense drive to lower costs. Companies can drive down labor costs by using temp agencies.”

CWC activist Freddy Amador worked at Cornfields Inc., in Waukegan, for five years. He tells In These Times the company’s direct hires start off making at least $16 an hour, but later get raises amounting to $21 an hour. As a temp, however, Amador was only making $11 an hour after five years on the job.

“As a temp worker, you don’t have vacation days, sick days, paid holidays”—all of which are available to direct hires, Amador says.

In These Times reached out to Cornfields to comment on this story. It did not immediately respond.

“Once a company is using a temp agency, it no longer has to worry about health insurance, pension liability, workers’ comp, payroll and human resources costs,” Meinster explains. “It also doesn’t have to worry about liability for workplace accidents, wage theft, or discrimination because, effectively under the law, the temp agency is the employer of record.”

This arrangement drives down standards at blue-collar workplaces, Bell says. “The company itself doesn’t have to worry about safety conditions because these workers aren’t going to cost them any money if they’re injured.”

“The safety for temp workers is really bad,” Amador says. “Temp agencies send people to do a job, but nobody trains them. Sometimes temp workers are using equipment they don’t know how to use, and they’re just guessing how to use it. I’ve seen many accidents.”

Under the new bill, temps like Amador would receive the same pay, benefits and protections as direct hires.

“This is landmark legislation,” Bell says. “There’s nothing like it in the United States.”

Last year, the Center for Investigative Reporting found a pattern of systemic racial and gender discrimination in the temp industry nationwide. Industry whistleblowers allege that African-American workers are routinely passed over for jobs in favor of Latinos, who employers consider to be more exploitable.

Discrimination can be hard to prove because staffing agencies aren’t required to record or report the demographics of who comes in looking for work. As Bell explains, applications often aren’t even filled out in the temp industry, but rather “someone just shows up to go to a job.”

The new bill would require temp agencies to be more transparent about their hiring practices by recording the race, gender and ethnicity of applicants and reporting that information to the state.

Furthermore, the bill includes an anti-retaliation provision that says if temp workers are fired or disciplined after asserting their legal rights, the burden is on the company and temp agency to prove that it was not done in retaliation.

“There’s this fundamental imbalance in the labor market that leads to a whole range of abuses and then non-enforcement of basic labor rights,” Meinster explains. “The changes we’re proposing in this bill get at addressing that structural issue.”

To craft the bill and get it introduced, CWC and WWJ received research and communications support from Raise the Floor Alliance, a coalition of eight Chicago worker centers. The Illinois AFL-CIO, National Economic and Social Rights Initiative, National Employment Law Project, Latino Policy Forum and Rainbow Push Coalition are among the legislation’s other supporters.

Though the Illinois government is still paralyzed by an unprecedented budget stalemate between the Republican governor and Democratic legislature, organizers are optimistic about the bill’s prospects.

“There’s potential for huge movement around this bill,” Bell says, citing the popularity of the presidential campaigns of Bernie Sanders and Donald Trump, which both touched on the theme of economic insecurity. While Trump focuses on jobs fleeing the country, Bell notes that “jobs here in this country have been downgraded.”

“We need to be talking about job quality, not only ‘more jobs.’ Both are important,” Meinster says. He believes existing temp jobs “could and should be good, permanent, full-time, direct-hire, living wage jobs with stability, respect and benefits.”

The author has worked with WWJ in the past on issues related to the temp industry.

This blog originally appeared at Inthesetimes.com on February 9, 2017. Reprinted with permission.

Jeff Schuhrke is a Working In These Times contributor based in Chicago. He has a Master’s in Labor Studies from UMass Amherst and is currently pursuing a Ph.D. in labor history at the University of Illinois at Chicago. He was a summer 2013 editorial intern at In These Times. Follow him on Twitter: @JeffSchuhrke.

Where do we draw the line on political speech in the workplace?

Monday, November 7th, 2016

17547163106_3874c2b4d7_k_2This year’s election has stirred up a lot of controversy, arguably more than the most recent elections. Everyone is talking about the election, whether it is in person or online. Sex, politics, religion, money; these are things we were told not to talk about, especially at work. But now, in this new age of technology, even if we don’t talk about it at the office people can still find out our views if we post online. What rules apply to the workplace and where do we draw the line?

 

Political speech

There seems to be a fine line between what type of political speech is and is not acceptable in the workplace. Federal Law prohibits government employers from restricting free speech in the workplace because of the 1st Amendment. However, private employers do not have the same restriction. In some states, employers may be able to express their political beliefs as long as they are not coercing any employees to vote for or contribute funds to a specific candidate. However, encouraging donations is fine. Other places only allow a company to express its beliefs by expressing its views on which side of each issue is best for the future of the company. Are employees held to the same standard?

What can employees talk about at work? Friends talk about politics outside of work, but what if you are friends with your coworkers? Some employees may be fine with talking about politics with each other. However, if these conversations happen at work where other employees can hear them, they might be offending someone. Employers can regulate as they see fit through their own workplace policies but there aren’t any laws governing this. Some might think offensive political speech would amount to a hostile working environment. However, federal and state laws do not consider political speech as a basis to prove a workplace is hostile. Should employees be able to talk about politics that deal with workers rights, like health care, minimum wage laws, and working conditions? Do employers have the right to restrict this type of speech through their policies? And what happens when someone’s views differs than the boss’s?

Retaliation and discrimination

There are only a few states with laws prohibiting retaliation against employees for their political beliefs. Employees may be fired or passed up for promotions just for having opposing political beliefs from their boss. Even if an employee doesn’t talk about their beliefs at work, an employer can use what they find on the Internet against you. If you post political speech on Facebook, Twitter, Instagram, or any other form of social media, your employer can find out about it. But what about your coworkers, can they discriminate against you?

A recent article talked about coworkers using political speech to harass a Hispanic woman. They changed her computer screensaver to pictures of Trump. They also told her to go back to Mexico and called her an illegal immigrant, even though she was born in America. This woman was eventually fired and told, “Illegal immigrants can’t vote or work. Good luck finding a job.” Is this political speech enough to consider the workplace hostile, even though the law doesn’t recognize this as a basis for discrimination? This woman and her lawyers are not taking that chance. They are filing a lawsuit against the company for racial discrimination, which is actually recognized by federal and state law. How do we stop these things from happening when race becomes such a major topic in political debates?

Solutions

If political speech is so controversial, why not ban it from the workplace? Do we ban all of it or just what may cause employees to feel uncomfortable? Many private companies have their own regulations, but how do they efficiently regulate it? Employees donate money and time to political campaigns, post to social media, and vote outside of work on their own time. Now that we can access technology anywhere, should employers ban political speech online during work hours? Should certain websites be blocked or monitored?

What about voting privileges? Most states require employers to allow employees to take time off work to vote. Some states are stricter than others by restricting how much time can be taken off work, the amount of notice required, or by including exceptions, but employers must comply. If they have to let employees vote during work hours, can they really regulate anything else they do during this time?

For more information about voting rights in each state visit WorkplaceFairness.org.

Angelic Papacalos is a law student at American University Washington College of Law and an intern for Workplace Fairness.

L.A. Port Strike Today Over Federal Contractor Wage Theft

Thursday, November 3rd, 2016

dave.johnson

 

“An order that creates a culture of legal compliance could have a transformative impact on American industry.” George Faraday, Legal and Policy Director at Good Jobs Nation

 

Truck drivers and warehouse workers working for federal contractors at the Port of Los Angeles are striking for 48 hours to draw attention to wage theft and other violations. These workers work for companies that contract with the federal Department of Defense. They say they have been misclassified as “independent contractors”, had their wages stolen and have been retaliated against for exercising the right to organize.

The workers are doing this because President Obama’s Fair Pay & Safe Workplaces Executive Order protecting low-wage workers on federal contracts from wage theft and other labor law violations takes effect today. Contractors are supposed to start reporting whether they are found in violation of wage theft and other labor laws and regulations. Later the government can use this information in the decision process for awarding contracts.

On a press call discussing today’s strike, Jaime Martinez, a port worker, explained that he has worked for K&R, a federal contractor, for 19 years. “We are on strike today for issues including respect and and wage theft. We earn very low wages, with no benefits and no workers compensation because we are classified as independent contractors.”

Obama’s Fair Pay and Safe Workplaces Executive Order

July’s post, Obama’s ‘Fair Pay and Safe Workplaces Executive Order’ explained,

President Obama’s executive order cracks down on federal contractors who break hiring, health and safety, and wage laws. It also prohibits employers from requiring mandatory arbitration agreements with employees of federal contractors, in order that workers can get their day in an actual court instead of being forced to appear in front of an arbitrator picked and paid for by the company when there is a dispute involving the Civil Rights Act or related to sexual assault or harassment.

Specifically, the new rules require companies that bid on federal contracts to disclose wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights violations from the prior three years. Federal contractor hiring officers are to take serious violations into account before awarding contracts. These officers will be issued guidelines on whether certain violations “rise to the level of a lack of integrity or business ethics.”

This Is A Big Deal

According to Good Jobs Nation this will affect a large number of workers around the country,

  • A U.S. Senate investigation revealed that federal contractors were responsible for nearly one-third of the largest U.S. Department of Labor penalties for wage theft and other legal violations;
  • A report by the National Employment Law Project found that 1 in 3 low-wage federal contract workers are victims of wage theft; and
  • An analysis by the Government Accountability Office showed that known legal violators have continued to receive lucrative federal contracts because of lax government oversight and enforcement.

“Creates A Culture Of Legal Compliance”

Companies with federal government contracts employ 1 in 4 American workers. Thanks to this executive order they will have to demonstrate a record of labor law compliance, including wage and hour and health and safety laws. On the press call discussing today’s strike Good Jobs Nation’s Legal and Policy Director George Faraday said, “An order that creates a culture of legal compliance could have a transformative impact on American industry.”

Fair Pay Hotline And Website

Also today, Good Jobs Nation is launching the first-ever national legal hotline – 1-844-PAY-FAIR – for federal contract workers to report law-breaking. Information is also available at goodjobsnation.org/payfair,

If you are a worker on a federal contract and you believe that are not receiving the pay and benefits owed to you under federal laws – like the Service Contract Act or the Davis Bacon Act – contact Good Jobs Legal Defense at 1-844-PAY-FAIR or click below.

This post originally appeared on ourfuture.org on October 25, 2016. Reprinted with Permission.

Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

 

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