Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘worker’s rights’

Are we thinking about work-life balance the wrong way?

Wednesday, November 6th, 2019

It’s one of the great struggles of modern life: finding a precise, perfect balance between work and life. And, according to Amy Howe, our obsession with finding that elusive equilibrium is part of the problem.This interview was originally published by Politico on November 6, 2019. Reprinted with permission.

“I don’t even love the term [‘work-life balance’] because it implies that on any given day or week, that you have to have perfect balance,” Howe said in an interview for POLITICO’s Women Rule podcast. “What I’ve come to realize over time is it’s a long game. There are times in your life that you’re not going to have balance, and that’s okay. I’ve made some very conscious choices not to.”

Howe, the president and COO of Ticketmaster North America, joined the company in 2015 after more than 14 years working as a business consultant at McKinsey. When she started at McKinsey, roughly 10 percent of the partners were women — and Howe was determined to join and expand their ranks.

“When I first joined McKinsey, I wasn’t married, and so those were the years to just kind of buckle down and invest, and I’m really glad I did.” said Howe. “I made partner when I found out I was pregnant with my first child — and those are two points in your life that if you think you can control either of those, you’re kidding yourself.”

Over time, Howe and her husband — himself a successful CFO at a large company — had three children. And as their family grew, the calculus changed about what a fulfilling work life looked like.

“I had made partner and had all three of our children while I was at McKinsey, and juggled it really well for a while,” said Howe. “And then, after a certain period of time, for me, my barometer was, ‘Is this working for me, right, am I still having fun, am I still developing and learning, and how is that impacting my family life?’”

Howe thought candidly about what she wanted to do next, and what the right fit for her might be.

“At some point, if you’re going to do anything other than consulting, you’ve got to move over,” said Howe. “I had a feeling that I was going to love being in an operating role. … The old adage that when you’re in consulting, you tell people what to do, but you don’t really get a chance to implement your own recommendations is true.” At Live Nation Entertainment, Ticketmaster’s parent company and a former consulting client of Howe’s, she would get the chance to do exactly that.

Finding the right professional fit — including a satisfying work-life balance — is a “very personal and individual” decision, says Howe. Which may be why the unending public discourse about a perfect work-life balance is so difficult: It often treats the question as though there’s a one-size-fits-all answer.

“There’s no one right answer,” said Howe. “I have lots of friends who are incredibly talented from business school who have made very different choices, and they were right for them. For me, this has been absolutely the right decision.”

To hear more from Amy Howe, listen to the full podcast here. Women Rule takes listeners backstage with female bosses for real talk on how they made it and what advice they have for women looking to lead.

This interview was originally published at Politico on November 6, 2019. Reprinted with permission.

About the Author: Amy L Howe. Until September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.

Over the Last Week, At Least 85,000 Workers Were Out on 13 Different Strikes

Tuesday, October 29th, 2019

According to the Bureau of Labor Statistics, 485,000 U.S. workers were involved in strikes and lockouts during 2018. That’s the highest number since 1986. The data for 2019 won’t be released until 2020, but there’s a good chance that number will be exceeded, a point driven home by the fact that, over the last week, at least 85,000 workers participated in 13 different strikes across the United States.

The crest of the strike wave has primarily been ridden by school workers. About 26,000 Chicago teachers have now been on strike for 12 days, demanding that Mayor Lori Lightfoot be held accountable for her campaign promise to bolster support staff and decrease class size. The work stoppage has now lasted longer than the Chicago Teachers Union (CTU) 2012 strike, which ended up sparking its own strike wave.

“Hundreds of CTU members showed up for the Wisconsin uprising of 2010,” Chicago activist and striking teacher Kenzo Shibata told In These Times. “We learned what was possible and we continued organizing for our 2012 strike. Educators in West Virginia, Los Angeles, Oklahoma and Arizona cited us as inspiration for their strikes. The Solidarity is contagious. They’ve passed back that inspiration and we’re here as a boost of momentum to this teacher strike wave.”

On October 17, about 8,000 CPS staff workers in the city also went on strike, represented by SEIU Local 73, with union leaders reaching a tentative agreement with the city on October 27, which members still have to vote on. Workers are not back at school, however, as CPS remains shut down by the CTU strike.

In a show of solidarity, the local Teamsters union is refusing to cross the picket lines to make deliveries. “We stand behind the teachers union 100% and believe they should fight for every form of benefits and relief for the children they are seeking,” Teamsters Local 705 official Juan Campos told the Chicago Tribune.

In Mendota, Illinois, about 2 hours away from Chicago, 76 elementary school teachers went on strike October 16, looking for wages that are comparable to their neighboring districts. Classes resumed October 28 after members of the Mendota Education Association ratified an agreement.

In Dedham, Massachusetts, hundreds of teachers dealt the state its first teachers’ strike in 12 years, voting on October 24 to approve a walkout by a vote of 258-2. Teachers walked out the next day in defiance of a state order, as it’s actually illegal for public employees to strike in Massachusetts. The teachers had been working without a contract for over a year—and had attempted to negotiate one for almost two. They were looking for stronger health insurance and a contract that addresses sexual harassment.

“Right now there is a movement of workers across the country who are taking back their power at a scale we have not seen in recent memory,” tweeted Independent Vermont Senator and presidential hopeful Bernie Sanders on October 25. “I stand with educators in Dedham, Massachusetts. This takes courage.”

On October 27, it was announced that a tentative deal had been reached, and school resumed the next day. Details of the new agreement have not yet been released.

The teachers’ strike wave is also hitting the West Coast. On October 21, dozens of teachers called out sick in Berkeley, California—some of them doing so as part of wildcat strike that was unauthorized by their union, the Berkeley Federation of Teachers. The teachers have been working on an expired contract since the summer. “It was good old-fashioned organizing. It happened through the whisper network,” history teacher Alice Bynum told a local paper. They’re back at work now.

The current strike wave is certainly not limited to teachers. About two dozen sanitation workers for Republic Services in Marshfield, Massachusetts, have been on strike since August 29. They’re demanding affordable health care and a living wage. Teamsters 25, the union that represents the employees, cites Economic Policy Institute data which shows that the workers with one child are making 40% less than the state’s living wage. Republic Services’ biggest single shareholder is billionaire Bill Gates, who makes $100 million annually off dividends from his shares. Last month, two dozen of the striking workers protested outside of a Bill and Melinda Gates Foundation gala in New York City, holding signs that read, “Bill Gates treats kids like trash.” Striking employee Bernard Egan-Mulligan told New York Daily News, “We’re here because Bill Gates is a 32% stockholder in our company. We figure our shareholders would like to know what’s going on.”

The workers have now extended the strike into Indiana, as more than 70 Republic workers in Evansville have joined the picket line.

At least 50 bus drivers in northern Virginia, represented by Amalgamated Transit Union Local 689, are on strike in response to their garage being privatized as some of their services are now being contracted out. They’ve been fighting for a new collective bargaining agreement for months.

Around 1,700 ASARCO copper workers are on strike in Arizona, angry about pension freezes, health insurance costs, and a lack of raises. “For the past nine years, these workers haven’t seen a pay raise,” Teamsters Local 104 secretary-treasurer Karla Schumann told NPR. “They’re working in some of the most difficult and dangerous conditions out there, and it’s just unfathomable and untenable to do that to these guys.”

Roughly 75 workers at the luxury Battery Wharf Hotel in Boston are also on strike. UNITE HERE Local 26, who represents the workers, says its members are looking for higher wages, better pensions, protection for immigrant employees, and sexual harassment prevention. Earlier this month, the English singer-songwriter and activist Billy Bragg headlined a rally in support of the workers. “The strike at the Battery Wharf Hotel goes to the very heart of the problems in our society,” Bragg told Boston Magazine. “Working people feel they no longer have any agency over their lives.”

About 700 Service workers in Santa Clara County, California have been on strike since October 2. SEIU 521 filed more than 15 complaints of unfair labor practices leading up to the strike. In addition to complaints about poor working conditions, employees are upset with the decision to move the San Jose Family Resource Center, as well as an allegedly unsafe environment for children at the Receiving, Assessment and Intake Center.

On October 27, more than 50 fast food workers at Oregon’s Burgerville chain ended a 4-day strike after the company agreed to continue negotiations with the employees. The workers have been agitating for a living wage for the last 18 months.

The longest auto workers strike in 50 year just ended with 49,000 United Auto Workers (UAW) members returning to General Motors on October 26. The employees were able to secure small raises, partially phase out a “two-tier” wage structure, and win a better process for temporary workers to become permanent, but potential fallout and further unrest looms as the agreement includes plans to close down three factories.

Tim O’Hara is President of UAW Local 1112, where the Lordstown, Ohio plant is set to close. He told the local news that he felt betrayed by the vote. “We just wanted them to remember that what happened to us can happen to them ’cause there’s nothing in this contract that stops GM from showing up unannounced at their plant the Monday after Thanksgiving—for example, like they did to us—and telling them they’re done,” he said.

The new General Motors contract was announced just a day after over 3,600 UAW-represented workers at Mack Trucks ended a two-week strike as a result of a tentative agreement being reached.

More work stoppages could be on the horizon. Teaching assistants in Decatur, Illinois are set to strike for a new contract. About 4,000 mental health clinicians across 100 Kaiser Permanente facilities could go on strike in November over staffing shortages, and the Little Rock Educators Association has set up a fund in the event of a “collective job action.” At a recent meeting, Little Rock Education Association President Teresa Knapp Gordon said teachers didn’t want to strike, but they were prepared for anything if their current contract is allowed to expire. That’s the last thing we want to do,” she said, “But you can bet your bottom dollar that if that is what it takes to make sure our children are protected, then that’s what we will do.”

This article was originally published at In These Times on October 28, 2019. Reprinted with permission. 

About the Author: Michael Arria covers labor and social movements.

How Bernie Sanders would give power to workers in their companies

Tuesday, October 15th, 2019

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Bernie Sanders unveiled a multi-pronged plan Monday aimed at giving more power to workers in their companies, ending corporate greed, breaking up monopolies and increasing taxes on big businesses.

“For more than 40 years, the largest and most profitable corporations in America have rigged the tax code and our economy to redistribute wealth and income to the richest and most powerful people in this country,” the Vermont senator said in a statement. “The American people are saying enough is enough.”

Sanders put out the proposal as he was off the campaign trail recovering from a heart attack. He participated in a union-sponsored candidate forum Sunday via video, and said he will attend Tuesday’s Democratic debate.

What would the plan do?

Sanders wants to provide workers with an ownership stake in their businesses: Under his proposal, employees at large companies would be given 20 percent of the shares. They would also have control of 45 percent of the seats on the board of directors at corporations.

Sanders’ agenda would also raise the corporate tax from 21 percent to 35 percent, which was the rate before the Republicans passed the 2017 tax cut. He vows to review the mergers approved by President Donald Trump’s administration and undo any that were “improper,” lays out a proposal to combat offshore tax havens, and promises to treat large stock buybacks “like stock manipulation” as well.

Sanders’ aides estimated that Amazon would have paid as much as $3.8 billion in taxes last year if his policies had been in effect.

How would it work?

Companies that meet Sanders’ guidelines — ones that are publicly traded or bring in $100 million or more in annual revenue — would be required to give at least 2 percent of their stock to their employees every year, until they reach 20 percent.

Those businesses would also need to put aside 45 percent of their corporate board seats to be elected by the company’s employees.

Sanders would also create a $500 million “U.S. Employee Ownership Bank” that would give loans to workers who want to buy their businesses.

Who opposes it?

Conservatives say that raising the corporate tax would eliminate jobs, reduce wages and hurt the economy.

How does it compare?

Earlier this year, Elizabeth Warren released a plan to require that 40 percent of seats on corporate boards be elected by workers. As Warren has risen in the polls, Sanders and his aides have begun to draw contrasts between the two candidates.

Sanders’ worker ownership proposal is the latest example. His wealth tax also goes beyond what Warren called for, and he has said that his agenda to fight climate change is the “most comprehensive” ever.

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

About the Author: Holly Otterbein is a reporter.

California Flexes its Muscles to Remind Fitness Studio Owners that Fitness Trainers are Employees, not Independent Contractors

Tuesday, October 8th, 2019

Fitness Studios in California, including those that provide training in yoga, strength conditioning and stationary bike classes, have for years flourished in California by using workers classified as independent contractors.  In fact, fitness instructors working for studio owners should almost always be classified as employees.  By misclassifying workers as independent contractors, many studio owners have either knowingly or inadvertently failed to provide fitness instructors basic employment rights guaranteed in California.  As a result, these companies have saved millions of dollars in business costs.

What is the State of the Law on Worker Classification?

With respect to claims for underpaid wages, missed meal and rest periods and record keeping violations, California law is clear.  Last year’s California Supreme Court decision Dynamex v. Superior Court (2018) 4 Cal.5th 903, establishes that a worker is an employee in the eyes of the law unless an employing party establishes that, (A) the hired person is free from the control and direction of the hiring entity in connection with the performance of the work, (B) the hired person performs work that is outside the usual course of the hiring entity’s business, and (C) the hired person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.  This is the “ABC Test” for determining whether a worker is an independent contractor or employee in California.  Very few fitness salons can satisfy Part B of the ABC Test. Providing instruction to salon clients is squarely inside “the usual course of the hiring entity’s business.”

In September 2019, Governor Gavin Newsom signed Assembly Bill 5 into law.  AB 5 codifies the Dynamex decision and the ABC Test for most workers.  In other words, the California Legislature and Governor Newsom believe so strongly in the correctness of the Dynamex decision, that they passed AB 5 into law, which makes the ABC Test the standard of evaluating whether a worker is an employee or an independent contractor.  Read together, AB 5 and Dynamex establish that nearly all fitness instructors in California working for fitness studios are employees and not independent contractors.  Not only now, but in the past as well.  Though the Supreme Court did not state that the ABC Test must be applied retroactively, courts across California have determined that it is, and now in AB 5 the Legislature has clearly stated that the ABC Test must be used in all applicable cases brought before the courts of California, past, present and future.

What are the Consequences of Worker Misclassification?

The adverse consequences of worker misclassification in the fitness industry in California have been significant.  One of the most widespread and detrimental effects of worker misclassification is that many studio owners have avoided their duty to pay the price of conducting business in California that is required of other businesses that do not rely on misclassified workers.  Non-compliant studios have operated and continue to operate as if they were exempt from California’s strict employment laws.  They are not.

Here are just a few of the economic costs fitness studio owners have avoided:

  • Workers Compensation Insurance: By failing to provide workers compensation insurance to instructors, studio owners have avoided the cost of insurance premiums paid by compliant businesses.
  • Off-the-Clock Work: By paying misclassified instructors on a flat rate basis only for the time they are running classes, studio owners have avoided paying their instructors for the time they spend on class planning activities.  By failing to pay for prep time, fitness studio owners routinely retained money that was due their employees.
  • Rest Breaks and Nonproductive Time: “Flat rate” wages are classified as piece rate wages under California law. Piece rate employees in California are entitled to be paid separately for rest breaks (every 3.5 hours) at their regular rate of pay (20 minutes during an eight-hour day), and they are entitled to be paid for nonproductive time before and after teaching classes, for team meetings and for the time spent in advanced training programs required by the studio owners at least at minimum wage.  By failing to pay for these additional work hours, fitness studio owners in California have pocketed millions of dollars that should have gone to their instructors.
  • California and Local Sick Leave Laws: Studio owners have avoided the cost of providing paid sick leave to their workers.
  • Uniforms: To the extent salon owners have required instructors to buy and wear studio-specific attire, especially apparel with studio logos, salon owners have violated California law relating to the purchase and maintenance of work uniforms.
  • Record Keeping: By misclassifying workers, studio owners have avoided the cost of buying payroll systems that are needed to track worker time, including the nonproductive time of their piece rate workers.
  • Payroll Taxes: Studio owners have avoided paying the employers’ share of payroll withholding, including the cost of paying into the unemployment insurance system in California.  This often leaves workers unable to obtain unemployment benefits when their work for a fitness studio ends.
  • Discrimination and Harassment: By running their operations with misclassified workers, studio owners have failed to provide mandatory sexual harassment training to their staff, and they have failed to give workers the protections mandated under Title VII of the United States Code (barring discrimination in the workplace) and under the Fair Employment and Housing Act in California.
  • Wrongful Termination: California employees are protected from termination on grounds that violate California public policy.  To the extent salon owners have terminated workers based on workers’ good faith complaints about how they are paid and about their worker rights, studio owners have sought to shield themselves against several California laws designed to protect employees from unfair termination practices.
  • Waiting Time Penalties: Under Labor Code § 203, an employee who has not been paid all wages due at termination, is entitled to up to 30 days of additional pay.  Labor Code § 203 provides that an employer who willfully fails to pay an employee all wages due at termination must pay the employee waiting time penalties.  Given the relatively high turnover in fitness studios, millions of dollars in waiting time penalties have been avoided by studio owners who have operated their business with misclassified independent contractors.
  • Unreimbursed Expenses: Employers are required to reimburse employees costs they incur performing their job.  For example, in the fitness studio world, instructors often are required to pay for the cost of advanced training studio owners require.  Some studios have required instructors to bring in their own music and sound systems for classes.  All of these kinds of costs are recoverable for employees under Labor Code § 2802.  Reimbursement of these costs is not required with independent contractors, however.  By misclassifying fitness trainers as independent contractors, fitness studio owners have foisted these costs onto their workers.

These are the most obvious cost savings fitness studio owners have enjoyed by misclassifying their workforce.  In the preamble to Assembly Bill 5, the California Legislature was even clearer about the impact of worker misclassification on the economic health and wellbeing of California workers:

The misclassification of workers as independent contractors has been a significant factor in the erosion of the middle class and the rise in income inequality.

It is also the intent of the Legislature in enacting this act to ensure workers who are currently exploited by being misclassified as independent contractors instead of recognized as employees have the basic rights and protections they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave. By codifying the California Supreme Court’s landmark, unanimous Dynamex decision, this act restores these important protections to potentially several million workers who have been denied these basic workplace rights that all employees are entitled to under the law.

What is Kitchin Legal Doing to Help Fitness Workers?

On September 26, 2019, Kitchin Legal filed an employment class action against Wheel House in San Francisco.  We also filed with the State of California a request to be appointed as a private attorney general on behalf of California to obtain penalties for the State and our client’s similarly misclassified co-workers.

Our client, a former spin instructor at Wheel House, was misclassified as an independent contractor by the company.  Though Wheel House paid her a flat fee for teaching spin classes, it failed to pay her any wages for the trainings the company required her to undergo.  In the lawsuit, out client alleges Wheel House failed to pay her for the many hours she spent preparing for each class, which Wheel House expressly called “home work.”  By misclassifying its workforce as independent contractors, she alleges, Wheel House failed to provide workers compensation coverage for her and other instructors, failed to provide paid medical leave, failed to institute mandatory sexual harassment training and protections, and failed to maintain employment records required under California law.  The complaint can be viewed on the San Francisco Superior Court website’s online site:  https://www.sfsuperiorcourt.org/online-services [Enter Case Number CGC-19-579541.]

In the coming year, I expect to see dozens of lawsuits filed against fitness studio owners in California.  Given the clarity of the law today, this seems inevitable. As studio owners across California begin to reclassify their fitness instructors as employees, I believe we will begin to see some of the benefits promised to fitness instructors and many others by both the California Legislature and the California Supreme Court.  Fitness workers will begin to receive “the basic rights and protections they deserve under the law.”

 

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. You can visit his website: www.kitchinlegal.com

The Powerful New Idea in Elizabeth Warren’s Labor Platform

Friday, October 4th, 2019

Image result for Shaun Richman

On Thursday, Elizabeth Warren released her long-awaited labor platform, titled “Empowering American Workers and Raising Wages.” The plan provides unions with a long wish list of badly needed reforms and new powers. It also makes a solid case that, like Bernie Sanders, she would be the labor movement’s biggest booster in the White House in generations.

Several other candidates, including Julián Castro, Beto O’Rourke and Amy Klobuchar, have also recently put out lengthy labor plans, which provide examples of how (and how not) to stand out from the pack when the baseline position of most Democrats in repealing the Taft-Hartley Act.

The biggest innovation in Warren’s platform is a private right of action in the federal courts against employers who violate the National Labor Relations Act.

Currently, only employers are able to take their complaints directly to the federal courts, against a union picket line, boycott action or other alleged violation of the 1947 Taft-Hartley Act. Warren would enable a union or an affected employee to sue an employer who commits an unfair labor practice (say, cutting a union activists’ hours, making threats or spying on secret union meetings) and seek injunctive relief—and even compensatory damages. Such a change would even the playing field in a significant way.

Warren is also proposing some activist anti-trust strategies to empower workers who are deemed to be independent contractors to better organize—and to shut down corporate mergers that will harm employees’ pay and work rules.

In the platform, Warren also reiterates her proposal for employee representation in corporate governance. A Warren administration would aim to make billion-dollar corporations set aside 40% of their executive board seats for employee representatives. While not new to her platform, it is a surprisingly radical idea that hasn’t received enough attention.

Like Sanders, Warren calls for a new federal framework for sectoral bargaining. The goal is to give unions the tools to equalize wages and benefits across multiple firms in an industry. Since individual employer-based collective bargaining is a huge part of the self-image of members and leaders alike of what unions do, both candidates are intentionally vague about the specifics of their proposals, and they are equally clear that unions will have a strong role in shaping the final legislation.

Still, the labor proposals from Warren and Sanders each signal their preferred approach.

I read Sanders platform as an embrace of wage boards, a throwback to an early New Deal model in which tripartite industrial boards voted on wage and working standards, and imposed them on all employers across an industry. As I’ve written previously, this is a framework that could put a union in every workplace in America, but, to be clear, it is not collective bargaining as we know it.

Warren’s proposal seems to be adding an overlapping representational structure to the NLRB process. Workers at individual workplaces might still vote for union representation at their firm only and negotiate collective bargaining agreements as we currently do. Meanwhile, certified unions could utilize some new process to certify a sectoral bargaining unit that would force employers to negotiate together over a specified scope of bargaining. This change would enhance union power (and unions may prefer it), but—even with card check and beefed-up NLRB enforcement—it would remain difficult for unions to dramatically expand their reach into many new workplaces.

The biggest disappointment of Warren’s labor plan is her studious avoidance of a just cause right to your job, as Sanders has proposed. A just cause law would put the onus on an employer to justify a termination. Just cause would give workers the power to say no to requests that fall outside the bounds of their duties or propriety, and it would give unions new tools in organizing and new modes of representation.

Instead, she proposes to amend the law in at least nine sections to outlaw non-compete and forced arbitration clauses and some of the most egregious forms of gender and wage discrimination. The fact that her platform contains a ridiculously long list of categories of workers whose protections against workplace discrimination belie the notion that universal protections are not essential.

Moreover, if a Warren administration successfully passes anti-discrimination protections for LGBTQ and pregnant workers, the law would still put the onus on the worker who suffered the discrimination to prove that their termination was for discriminatory reasons and not one of the many other excuses an employer will offer in defense.

In essence, this is the difference between the two most pro-labor candidates in the Democratic field. Elizabeth Warren approaches the issue of rights at work as a problem solver, and wants to enhance the institutional role of worker representation to restore a degree of macroeconomic balance. Bernie Sanders aims to radically alter the balance of power in the workplace.

Both platforms are excellent, and largely overlap on the remainder of reforms to the NLRA and other federal agencies that are supposed to protect workers from corporate exploitation, and both candidates can clearly be relied upon to prioritize workers’ rights issues once in office.

As for Castro, O’Rourke and Klobuchar, they also agree on an emerging consensus around fighting employee misclassification and overtime protection, raising the minimum wage and passing  the Protecting the Right to Organize (PRO) Act, which would essentially overturn the anti-union Taft-Hartley Act, add card check under some circumstances and impose meaningful financial penalties for employers who violate their employees’ rights

Castro makes a major issue out of granting union rights for farm and domestic workers—racist exclusions from the NLRA that cast a pall over the New Deal. Granted, almost every other candidate also supports this, but Castro stands out in terms of emphasis.

Klobuchar, on the other hand, is demonstrably going through the motions on workers’ rights. She endorses a long list of other people’s bills with no emphasis and nothing original. This shouldn’t come as a surprise from a politician who apparently thinks it’s funny to treat her own employees poorly. For readers who are worried that the candidates are just paying lip service to unions during the primaries but won’t follow through, Amy Klobuchar is what a Democrat who really doesn’t care about workers looks like. Compare and contrast with the others.

The biggest surprise is O’Rourke, who has one of the best labor platforms in the field. Like Pete Buttigieg, O’Rourke has clearly been taking advice from some of the smartest thinkers on how to restore union power, but unlike that other centrist from central casting Buttigieg, O’Rourke embraced some of the boldest solutions. Most interestingly, on the choice between wage boards and certified sectoral bargaining, O’Rourke’s team asks, “Why choose?” Under his formula, the wage boards would address big-ticket items across entire industries and take them out of competition, while the sectoral bargaining would empower unions to negotiate over the detailed minutia that workers also want to address in a contract.  O’Rourke’s plan would give unions multiple strategies to end the corporate race to the bottom over pay and working conditions.

The “Yes and…” Labor Platform

Warren’s proposal for a private right of action in ULP cases is the biggest new addition, and should remain on unions’ reform agenda no matter who wins the nomination. But it is not without controversy. The federal courts have historically been where the most damage to workers’ rights have been inflicted, and many union attorneys will be apprehensive about losing control of strategy over marginal cases that could produce bad case law. I would argue that we’ve been fighting this anyway (and not exactly producing a stellar track record of wins), so why not cut to the chase and fight for our rights in the courts? Why let a Republican NLRB add layers of obstruction?

Beto O’Rourke’s “yes and” approach to sectoral and industry-wide worker representation should also inspire us to think about the opportunities of a new president and Congress differently. Labor activists have tended to approach previous opportunities for reform as a narrow window to win one thing, and the arguments over which ‘one thing’ will save us have been paralyzing.

But the crisis of economic inequality and its corrosive effects on our democracy require a host of reforms, and even centrist Democrats get that. We need overlapping systems of worker power, union representation and employee protections. The labor movement has now been presented with a rich collection of reform proposals. We should say yes to all of them.

This article was originally published at In These times on October 4, 2019. Reprinted with permission. 

About the Author: Shaun Richman is an In These Times contributing writer and the Program Director of the Harry Van Arsdale Jr. Center for Labor Studies at SUNY Empire State College. His Twitter handle is @Ess_Dog.

Warren proposes sweeping plan for 'empowering American workers and raising wages'

Thursday, October 3rd, 2019

Sen. Elizabeth Warren has released her plan for empowering American workers and raising wages, and, like Sen. Bernie Sanders’ workplace democracy plan, there is a lot here—and the sheer scope of the changes Warren proposes again reminds us of how effective the corporate and Republican war on workers has been over the past few decades. In a country that treated workers right, there wouldn’t be this many big changes to propose.

Warren identifies five broad goals, under which she organizes dozens of specific proposals:

  • Extending labor rights to all workers
  • Strengthening organizing, collective bargaining, and the right to strike
  • Raising wages and protecting pensions
  • Increasing worker choice and control
  • Expanding worker protections, combating discrimination, and improving enforcement

Extending labor rights to all workers includes passing legislation to protect farm workers and domestic workers, who are left out of key current labor laws (because they were predominantly black workforces at the time those laws were passed); ending misclassification of workers as independent contractors, as California recently passed a law to do; defining companies like McDonald’s as joint employers of the workers in their franchise restaurants and in other ways broadening the joint employer standard; allowing graduate students and some people currently defined as supervisors to unionize; cracking down on exploitation of undocumented workers; and more.

Warren’s proposals for strengthening organizing, collective bargaining, and the right to strike include prohibiting state-level “right to work” laws; passing majority sign-up for union organizing and passing the Protecting the Right to Organize Act; cracking down on intimidation and interference by employers and by state and local officials; using antitrust laws to expand rights for gig economy workers; and expanding the National Labor Relations Board’s enforcement power. She’d protect workers’ right to strike by banning permanent replacement of strikers, protecting the right to engage in repeated short strikes (like the one-day strikes favored by Fight for $15), doing away with secondary boycott restrictions, and more.

Warren would also promote sectoral bargaining, in which workers in an industry can bargain across multiple employers. “Each individual firm may have a strong incentive to resist collective bargaining if it believes it will raise costs and put the firm in a worse position relative to its competitors,” her plan says. “But if every firm is bound by the same bargaining outcome, their relative standing remains. That creates conditions for a more successful bargaining process.”

A $15 minimum wage, including for tipped workers and workers with disabilities, is a big part of Warren’s plan to raise wages and protect pensions. But that’s not all. She would also reinstate the Obama administration plan to raise the threshold for overtime pay eligibility—the Trump administration rolled that plan back significantly while still claiming credit for having raised the overtime threshold above Bush-era levels—and, just as she pledges to use antitrust law to protect gig economy workers, she’d use federal authority to “reject mergers if they create labor market consolidation that will drive down wages.” She’d support apprenticeships and project labor agreements, key policies for the building trades, and she’d strengthen pensions. Warren also addresses a question that skeptics of Medicare for All often raise, noting that health care is often a sticking point in union contract negotiations—a sticking point that could be eliminated by Medicare for All—but pledging, “In both the transition to Medicare for All and its implementation, my administration will work closely with unions and multiemployer health insurance funds to protect the gains they have made and to draw on their experience providing quality health care to working people.”

But wait, that’s not all. In the name of increasing worker choice and control, Warren would require that “American companies with $1 billion or more in annual revenue must let employees elect no less than 40% of the company’s Board members.” She’d enable workers to move more freely between jobs by banning noncompete agreements and no-poaching clauses. She’d do away with forced arbitration and class action waivers. In the name of expanding workplace protections and combating discrimination, Warren would promote fair scheduling laws and stronger safety protections, push to knock down anti-LGBTQ discrimination in the workplace, prohibit policies that are technically race-neutral but really discriminatory, such as allowing employers to ban workers from having dreadlocks, and press for protections for disabled and pregnant workers. But all the good policies in the world don’t help workers if they’re not enforced, so Warren would also strengthen enforcement.

Like I said, it’s a lot. Much of what Warren proposes, of course, would need to be passed through Congress, which is yet another reason we need Democrats to retake the Senate. But significant chunks of it could also be done through executive action and using the federal contracting process to move some major employers.

This article was originally published at Daily Kos on October 3, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor. Laura at Daily Kos

How Have Health Workers Won Improvements to Patient Care? Strikes.

Monday, September 30th, 2019

On September 20, 2,200 nurses represented by the National Nurses United (NNU) went on a one-day strike at the University of Chicago Medical Center. The Chicago nurses were protesting unsafe working conditions and forced overtime—and had been in contract negotiations with the hospital for months. The Medical Center has just spent $269 million on a hospital expansion that it, insists, represents an “ investment to improve our community’s health.”

In response to the strike, the Medical Center’s top officials went on a P.R. offensive, accusing  striking nurses of engaging in “shameless behavior,” and insisting they are recklessly endangering their patients.

Nothing could be further from the truth, says Astria Johnson, an Emergency Room nurse who has worked for the hospital for 10 years. “This strike is about providing safe patient care. I can’t do that when I am assigned four patients, two of whom are intensive care (ICU) patients and two of whom are very sick. Someone may be on a ventilator to breathe for them.  Someone may be septic and require intravenous antibiotics and require constant monitoring.  Some people are getting their first diagnosis in the ER and I can’t educate them about their disease or medication.”

In response to the strike, management locked nurses out of the hospital for four days. The nurses went back to work Wednesday morning, and bargaining is expected to continue now that they’re back on the job.

Healthcare professionals like Johnson do not view striking as their first option.  Most spend years going through “the proper channels,” speaking with management, and engaging in endless internal negotiating sessions to resolve patient care problems.  When they do finally go public with their concerns, their actions often result in improvements to patient care.

In California for example, the California Nurses Association (CNA), the organization that was the founding member of NNU, spent 13 years fighting and winning the first—and thus far only—legislated safe nurse-to-patient staffing ratios in the country: In 1998, California Government Pete Wilson vetoed a safe staffing bill that was passed by the legislature.  In 1999, after more intense lobbying and activity by the CNA, legislation was passed and signed into law by Governor Gray Davis. Ratios were finally implemented in 2004. According to one study, in California, mandated ratios had a positive impact on patient deaths as well as nurse burnout.

Other healthcare workers have gone on strike to address vexing patient care issues. Since 2010, the National Union of Healthcare Workers (NUHW), which represents 4,000 psychologists, social workers, and other mental health clinicians at Kaiser Permanente in California, has mounted a campaign to publicize and remedy a critical shortage of mental health workers at the state’s largest HMO.  In 2011, the NUHW filed complaints to the California Department of Managed Health Care (DMHC) charging Kaiser was violating a regulation that requires that HMOs must see mental health patients within 10 business or 14 calendar days of their request for an appointment. The complaint was accompanied by a 34 page report entitled “Care Delayed, Care Denied.”

In 2012, the NUHW went on strike to expose Kaiser’s failure to hire sufficient mental staff and give patients access to timely care.  These mental health workers pushed the DMHC to take action to fulfill its mandates to protect patients.  In March of 2013, the DMHC released the results of its investigation. It found that up to 40 percent of patients at various Kaiser facilities experienced appointment delays that violated California law. In June of 2013, the state of California fined the system $4 million, issued a cease-and-desist order against Kaiser, and ordered the HMO to correct the problems. In 2015, a follow up survey by the DMHC, based on a sampling of hundreds of individual patient charts, revealed that, in Northern California alone, 22 percent of patients suffered excessive appointment delays. The DMHC called the violations “serious.”

In 2015, one of these serious violations resulted in the death of, 83-year-old Barbara Ragan, according to her husband Denny Ragan. Barbara had worked for Kaiser herself for more than two decades. She’d been seeking mental health care from Kaiser and, according to her husband, faced lengthy delays for treatment and ultimately died by suicide.  Kaiser has said it is not responsible for Ragan’s death and insisted that she had received adequate care.

In 2017, the state ordered follow-up inspections to make sure Kaiser was in compliance with state laws and regulations. As a result, Kaiser has also hired hundreds more therapists.

Even though the union’s actions have played a role in forcing Kaiser to improve patients’ access to an initial visit or assessment, workers say problems continue when it comes to providing follow-up care. “Kaiser has not hired enough staff so that, after an initial telephone appointment, patients get needed follow-up care.  Today patients have to wait up to two months for a follow up in person visit,” says Kirstin Quinn Siegel a Licensed Marriage and Family Therapist at Kaiser Richmond. “People who have been suffering in silence, perhaps for years, and finally call to get help should be seen immediately not in two months.”

After experiencing delayed care, another Kaiser patient, 19-year-old Elizabeth Brown, died by suicide in 2018. Kaiser has declined to comment to the press about Brown’s care.

Peter Ly, a psychologist on the Child Team at San Jose Kaiser, says that “A teenager struggling with depression, or who is self -harming or has suicidal thoughts needs to be seen right away and then consistently every week or two.  We can’t do it.  We are asked to put people into groups when what they need is individual one-on-one therapy.”

That’s why he and roughly 4,000 other workers went on a five-day strike in December 2018.  Former Congressman Patrick Kennedy (D, RI) the sponsor of the mental health parity and addiction Equity Act flew to California to join striking therapists on the picket line.

“We do not go into this work to make money,” says Susan Whitney, a marriage and family therapist at Kaiser in Bakersfield. “There is no cap on our caseload.  In order to help patients we keep accepting more and more of them. We can’t take lunch or even bathroom breaks.  We don’t act until we and our patients are at the breaking point.  And our number one concern is “how will this affect patient care?”

In a response to union allegations, Kaiser has issued a public statement insisting that, “Kaiser Permanente is committed to finding solutions and creating a model for mental health care that meets the growing demand for mental health care and responds to the shortage of qualified professionals.”

But according to Whitney, “We’ve been going through official Kaiser channels for years and the only way we’ve seen any enforcement or improvement is when we go public and enlist the support of patients, community leaders and political representatives.”

In July of 2019, Kaiser  announced that it had added 300 more mental health staff statewide and was continuing to recruit staff. NUHW members have proposed that they participate in decisions about where new staff are assigned both geographically and to which clinical teams.

In 2004, two researchers investigated management claims that healthcare workers represented by unions jeopardize patient care.  Michael Ash and Jean Ann Seago found instead that patients on cardiac units in hospitals where RNs were represented by labor unions had a reduced cardiac mortality rate.  They concluded that, “The protections offered by unionization may encourage nurses to speak up in ways that improve patient outcomes but might be considered insubordinate and, hence, career-jeopardizing without union protections.”

What was true 15 years ago is even more so today as healthcare corporations consolidate through hospital mergers and acquisitions, gain more power, and act to protect the bottom-line rather than patient care.

This article was originally published at Inthesetimes on September 30, 2019. Reprinted with permission.

About the Author: Suzanne Gordon is a healthcare journalist and researcher.  She is the co-author of Safety in Numbers: Nurse to Patient Ratios and the Future of Healthcare (Cornell University Press) and most recently, Wounds of War: How the VA Delivers Health Healing and Hope to the Nation’s Veterans (Cornell University Press).

California Senate passes landmark bill cracking down on gig economy abuses

Wednesday, September 11th, 2019

This is huge. The California state Senate passed Assembly Bill 5, which will rein in gig economy abuses, in a 29 to 11 vote. App-based companies like Uber, Lyft, and DoorDash tried to negotiate an exemption for themselves, but legislators held firm and the bill—which needs to be re-passed by the state Assembly and then signed by Gov. Gavin Newsom—includes those key players in the gig economy.

AB5 puts into law a 2018 California Supreme Court decision imposing stricter tests on whether a worker can be counted as an independent contractor. Under that decision and under AB5, companies can’t call workers independent contractors if the work they do is central to the company’s mission or if the company substantially directs their work. That applies not just Uber drivers and food delivery workers but to port truck drivers, janitors, manicurists, strippers, and some tech workers.

Once it becomes law, AB5 is expected to affect more than a million California workers, and could set a model for other states. AB5 “finally asserts one set of standards for determining employee status for all workers, putting an end to the chaos of poverty and despair gig bosses created in their pursuit of profits at any cost,” said New York Taxi Workers Alliance Executive Director Bhairavi Desai. “Now all workers—from nail salon workers, to delivery workers, to app drivers—will have employee protections if their work is part of the core services of the company that employs them.” She went on to call for “the same clarity for employee status here in New York State.”

”Today the so-called gig companies present themselves as the innovative future of tomorrow, a future where companies don’t pay Social Security or Medicare,” said state Sen. Maria Elena Durazo, a longtime labor leader turned elected official. “Let’s be clear: there is nothing innovative about underpaying someone for their labor.”

”Misclassification is an attempt to weaken the power of workers, including the thousands of truck drivers in California who deserve a living wage and full rights as employees. With this vote, the California Senate has taken a strong stand with workers who should earn a living wage and have the protections to which they are entitled,” Teamsters president Jim Hoffa said in a statement.

The California Assembly and Newsom are expected to put AB5 into law without drama. But Uber, Lyft, and DoorDash are vowing to add drama by pouring nearly $100 million into a ballot initiative trying to get themselves exempted from the law.

This article was originally published at Daily Kos on September 11, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor.. Laura at Daily Kos

The lessons of Trump's 'purely reactionary' labor board, this week in the war on workers

Monday, September 9th, 2019

The National Labor Relations Board recently gave businesses the go-ahead to misclassify employees as independent contractors. In the wake of that and other horrible decisions, former board member and current AFL-CIO general counsel Craig Becker writes that the NLRB is “the administrative state, remade in Trump’s image.” So how does that look?

Trump’s NLRB is “purely reactionary. It has no vision of how the law should promote healthy and productive labor relations, but seeks only to erase the recent past.” Literally, weeks after starting his job, the agency’s general counsel asked for the files on every major decision of the Obama era so that they might all be overturned. Next, Becker writes, “while Trump claims to speak for American workers, he has staffed the NLRB with longtime frontmen for their corporate employers.” And they’re refusing to recuse themselves from cases in which their former law firms represented employers.

Third, according to Becker, “despite the president’s rhetoric, his NLRB is not deregulating but, rather, selectively regulating—that is, regulating unions but not employers.” Trump’s political appointee is overturning huge numbers of decisions made by career attorneys … when they decide against prosecuting unions. And fourth, “Trump’s NLRB has contempt for procedural norms and fairness.” That means reversing precedent without giving public notice to hear from people who might be affected.

Overall, what this spells out for the NLRB, and for the Trump administration more generally, is that “laws are being used to silence and oppress the very people they were intended to protect—workers, borrowers, consumers.“

This article was originally published at Daily Kos on September 7, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor.. Laura at Daily Kos

A Worker’s Place Is in the Museum

Thursday, August 29th, 2019

Not many museums have mounted a collection of photographs and ephemera that chronicle the history of worker organizing and the labor movement. That’s not surprising. Museums and their special exhibits are underwritten by foundations, corporations and the very rich—funders that, by and large, are not known for their concern for those who toil for a living and seek to better their lives through union representation.

The annual Met Gala, the high-society benefit for the Metropolitan Museum of Art’s Costume Institute, has revolved around couturiers like Coco Chanel and Alexander McQueen or sartorial themes from camp to Catholicism. Television viewers have yet, however, to see celebrities like Lady Gaga done up in a McDonald’s uniform or other industrial-designed attire walk the red carpet across David H. Koch Plaza—the $65 million gift to the Met from David H. Koch.

All of which makes City of Workers, City of Struggle: How Labor Movements Changed New York a rare and radical gem of a show.

One enters this special exhibit at the Museum of the City of New York through a montage of photographs of demonstrators holding placards that read: “Abolish Slavery,” “We Want Respect for Workers,” “Put Black Men to Work or Stop Construction,” “Mt. Sinai Workers Can’t Live on $32 a Week—On Strike” and “Carwasheros al Poder” (Power to the Carwashers).

The exhibit begins with the enslaved people of New York (40% of New York households owned one or more workers in colonial days) and continues through today’s movement of minimum-wage slaves and the Fight for $15.

If the overarching theme of City of Workersis collective action—how New Yorkers formed unions and gained better working conditions and better pay—the subtext is that cooperation among black, brown and white workers made those advances possible. In the age of Trump, that message bears repeating.

In the book that accompanies the exhibit, labor historian Joshua B. Freeman writes, “The city of New York would not exist in anything like its current form without the struggles of working people over the past three centuries.” Similar stories could be told of any number of cities across the country—cities where labor history exhibits could be mounted, if not for want of museum space, cities where the struggle of workers continues to this day.

City of Workers, sponsored by the union-friendly Puffin Foundation of Teaneck, N.J., is on exhibit through Jan. 5, 2020, at the Museum of the City of New York, just one mile north of the Met and across from Central Park. While you are there, check out Activist New York, a permanent exhibit on the city’s history of political agitation in the Puffin Foundation Gallery.

All images courtesy of the Museum of the City of New York.

 


(A few of the New York shirtwaist workers, most of whom were Jewish women, went on strike in 1909 for better pay, working conditions and shorter hours. The strike, known as the Uprising of the 20,000, targeted more than 600 garment shops and factories.)

 


(Frank J. Ferrell, a black delegate of the New York City chapter of the Knights of Labor addresses the group at their 1886 convention in Richmond, Va. When Ferrell was denied a room at a local hotel where he and his New York colleagues had a reservation, they decamped en masse for less racist accommodations.)

 


(This poster advertises a 1912 Milwaukee talk by Rose Schneidermann, a socialist feminist who had worked in the garment industry. Rose is best known for her speechthat same year to middle-class suffragettes in Cleveland: “What the woman who labors wants is the right to live, not simply exist … The worker must have bread, but she must have roses, too. Help, you women of privilege, give her the ballot to fight with.”)

(In 1882, members of the Knights of Labor and the Central Labor Union gathered in New York’s Union Square for the first-ever Labor Day parade.)

 

(In 1965, in front of Macy’s, members of the International Ladies’ Garment Workers’ Union picket Judy Bond, a “runaway plant” that had moved to the South. The union’s multi-year campaign included shopping bags that read, “Judy Bond Inc., On Strike, Don’t Buy Judy Bond Blouses.” According to the union, strikers handed out more than 3 million bags in 1963.)

 

(“Filthy Tenement House Cigar Factories” postcard, circa 1885.)

 

Amalgamated Dwellings is the oldest limited-equity housing cooperative in the U.S. Founded in 1927 in the Bronx by the Amalgamated Clothing Workers of America, the co-op was established to provide affordable housing for workers. Today, Amalgamated is home to more than 1,400 families.

 

(In 1936, in the Poconos, members of New York’s Communist-led Dressmakers’ Union (Local 22) relax at Unity House. Local 22 and Local 25 purchased the 750-acre retreat, which had formerly been a tony resort for German Jews, in 1919.)

This blog was originally published at In These Times on August 28, 2019. Reprinted with permission.

About the Author: Joel Bleifuss, a former director of the Peace Studies Program at the University of Missouri-Columbia, is the editor & publisher of In These Times, where he has worked since October 1986.Bleifuss has worked at In These Times for 24 years, including as managing editor and senior editor. He tackles the state of national and international events with a blend of critical insight and humor, and over the years has developed a niche for investigative reporting.

His reporting on environmental health issues, national security scandals and the Iran Contra affair has landed in newspapers and magazines around the country, including the New York Times, the Utne Reader, the Capital Eye and many others.

He is the co-author of the book “Was The 2004 Presidential Election Stolen?,” with Steven F. Freeman.

Before joining In These Times, Bleifuss was director of the Peace Studies Program for the University of Missouri, a features writer for the Fulton Sun in Fulton, Missouri, and a freelance journalist in Spain.

Bleifuss currently serves on the advisory board of The Public Square, a program of the Illinois Humanities Council.

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