The DOL Addresses ‘White Collar’ Slavery

*The Dept. of Labor issued the final rule on May 19, 2016. The DOL  more than doubled the salary threshold for eligibility for overtime for full-time salaried workers — lifting it from $23,660 to $47,476 per year. That means some 35 percent of full-time salaried workers, based on their pay, will now be eligible for overtime. PGB

The Fair Labor Standards Act, 29 CFR Part 541, makes it possible for employers to impose a kind of slavery on poorly-paid salaried employees who are exempt from the protections of the act because they are classified as “white collar” workers.

However, the U.S. Department of Labor this week released proposed amendments to the FLSA  “white collar” exemption provision that would, if adopted, eventually eliminate the exempt status of an estimated  21.4  million so-called “white collar” employees.

The FLSA exemption now applies to employees whose job duties primarily involve executive, administrative, or professional duties and who  earn a salary of at least $455 per week or $23,660 a year.  The DOL’s proposed regulations dramatically increase the minimum salary threshold for exempt status workers to $970 per week or $50,440 per year. This represents the 40th percentile of earnings for all full-time salaried workers throughout the United States.

Low-level white collar workers are ripe for exploitation, especially during difficult economic times when jobs are scarce.  During the Great Recession, many employers forced poorly-paid white collar workers to work endless or erratic unpaid overtime hours  to compensate for lay-offs or short staffing.  This caused predictable stress and burnout, with all of the attendant problems for individuals and families.  The “white collar” exemption is particularly brutal for single parents (mostly women) who must schedule and pay for child care.

The DOL has not updated the “white collar” salary level since 2004.  To prevent the proposed new salary level from becoming outdated, the DOL’s proposes  automatically updating the salary level each year to reflect the applicable 40th  percentile of earnings.  Continue reading “The DOL Addresses ‘White Collar’ Slavery”

Federal Agencies Study Workplace Bullying

While federal and state laws to address workplace bullying remain elusive, the U.S. government is moving forward to address the problem.

The  U.S. Merit Systems Protection Board (MSPB) recently placed “nonsexual harassment” on its research agenda for 2015-2018.  In the past, the MSPB has focused on sexual harassment but it has not previously addressed the problem of general harassment or workplace bullying. The Board states it will study ways to foster effective work environments by eliminating nonsexual harassment.

Meanwhile, the EEOC last month formed a Select Task Force to examine the problem of workplace harassment and look at ways by which it might be prevented. EEOC Commissioner Jenny Yang said 30 percent of the charges received by the EEOC each year include harassment complaints. The task force, which includes 16 members from around the country,  will hold a series of meetings, including public meetings, in the year ahead.

The Occupational Safety Health Administration signed a union agreement in 2011 that provides protection against workplace bullying to its own workforce. Unfortunately, OSHA, which is charged with insuring the safety of America’s private sector workers, has yet to extend these same protections to workers outside OSHA.

According to the MSPB: “Nonsexual harassment is particularly inappropriate when the perpetrator is a supervisor or otherwise exercises official authority over the employee,” states the MSPB.

The MSPB states that federal employees should be aware of the problem of nonsexual harassment and “cognizant of the hazards of nonsexual harassment and strategies to extinguish this behavior before it undermines the quality of their workplace.”

Specifically, the board will study:

  • How do federal employees define nonsexual harassment?
  • How prevalent is it in the federal workplace?
  • Who are the most common perpetrators and victims of nonsexual harassment?
  • What effect does nonsexual harassment have on federal workplace outcomes like retention and turnover, motivation, engagement, job satisfaction, and leader trust?
  • Do federal employees believe that appropriate action is being taken to address nonsexual harassment?
  • What strategies, both effective and ineffective, are used to address it?

The MSPB is an independent, quasi-judicial agency in the Executive branch that hears employee appeals of decisions of the Civil Service Commission, reviews significant actions of the U.S. Office of Program Management, and performs merit system studies.

There is overwhelming evidence that workplace bullying causes targets to suffer  potentially severe mental and physical health impacts.  Employers pay the price for bullying in the form of personnel turnover, low morale and absenteeism, higher health care costs and unnecessary litigation

Judicial Conference: To Whom it May Concern

The evidence has been building for years that federal courts are hostile to discrimination plaintiffs, and that corporate plaintiffs fare much better than individual plaintiffs.

The U.S. Courts were created under Article III of the Constitution to administer justice fairly and impartially.  So  it doesn’t seem right that federal judges appear to be biased, either consciously or unconsciously, against the discrimination victims and the individual plaintiffs who appear before them.

Individual federal judges are working to improve the operation of federal courts but this obviously is a systemic problem that deserves a systemic solution. Shouldn’t the entity that runs our nation’s federal court system be working to insure that our courts are independent and unbiased forums for all.

It seems the Judicial Conference of the United States runs our federal court system. The Conference describes itself as the “national policy making body” for U.S. courts and it is charged with “studying the operation and effect of the general rules of practice and procedure in the federal courts.”  The conference appears to be a 16-member body (with two observers) that is run by Chief Justice John G. Roberts. It includes the Chief Judge of the Court of International Trade and a district judge from each regional judicial circuit. There are no citizen representatives.

How do you contact the Judicial Conference? The web site of the Judicial Conference lacks  contact information, stating: “Requests for consideration of items by the Judicial Conference of the United States or one of its committees should be directed to the Director of the Administrative Office of the United States Courts.” There is no contact information or link to the Administrative Office of the U.S. Courts but I did a web search and found it here.

Nothing on the AOC landing page indicates how to contact the director of the AOC or what other individual(s) might receive a complaint about apparent systemic discrimination in federal courts. At the bottom of the page there is a “contact us” tab that leads to the AOC’s Washington D.C. address, the phone number of the “Public Information Officer” and a “Send us a Message” form. The “Send us a Message” form states: “Have a comment about Find a broken link? Need help finding a publication or statistics? Send us a message by filling out the form below. If you’d like a response, be sure to include your email address.”

I don’t have a comment, didn’t find a broken link and I’m not trying to find a publication. My problem deals with the nationwide apparent systemic unfairness of our federal courts toward discrimination victims and the apparent preferential treatment accorded to corporations. I want to know what, if anything, the leadership of our nation’s federal courts is doing to insure that these courts are independent and unbiased forums for all. Still, I left the following message on the AOC’s web site;

To Whom it May Concern:

I don’t have a comment, haven’t found a broken link, and don’t need a publication or statistics. I am contacting your because I think there is a major systemic problem in our federal court system that has existed for years. There is significant research showing that federal judges dismiss employment discrimination cases at a far higher rate than other types of cases, and that they accord preferential treatment to corporate plaintiffs. This doesn’t seem fair. What, if anything, are you doing to address this? Oh, I guess I do want a statistic after-all. What is the racial composition of the conference?  Thanks! Patricia G. Barnes

I might have directed them to my book, Betrayed: The Legalization of Age Discrimination in the Workplace, which contains several suggestions for improving federal courts, but I don’t want to seem impudent.

AOC Public  Information Officer, Karen Redmond said the Judicial Conference ordinarily addresses issues that are brought to its attention by the various federal circuits.  She said American citizens who have a problem normally go to the federal circuit court in their geographical area to seek redress.

Frankly, I won’t hold my breath waiting for the  answer from the Judicial Conference.  I get the feeling from its web site that the Judicial Conference isn’t keen on citizen input. But if I do get a response, I’ll be sure to tell you.

More Evidence Fed. Cts Hostile to Individual Plaintiffs

New evidence shows that a 2009 ruling by the U.S. Supreme Court that allows judges to dismiss cases based on their “common sense” has led to a sharp increase in the dismissal lawsuits filed by individuals  but virtually no change in the dismissal rate of lawsuits filed by corporations.

The New York Times this week reported the results of a new study by Alexander A. Reinert, a professor at Cardoza Law School at Yeshiva University in New York, who represented the losing side in  Ashcroft v. Iqbal, the case that led to the Court’s  5-4 ruling.

The study found the rate of dismissal of cases brought by individuals who are represented by lawyers has risen from 42 percent to 59 percent since the Iqbal decision. Employment discrimination and civil rights claims were hit particularly hard. Meanwhile, the rate of dismissal remained flat for corporate plaintiffs – rising only one point to 38 percent.

Prior to Iqbal, a pleading could not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.” Post Iqbal, judges may use their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge[] their claims across the line from conceivable to plausible.” When a case is dismissed at this early stage, the plaintiff is denied the opportunity to engage in discovery, which may be necessary to elicit facts  to support a claim.

Iqbal is a Pakistani Muslim who was picked up on immigration charges in the aftermath of the Sept. 11 attacks.  He claimed he was subjected to humiliating searches and vicious beatings during his detention and filed a lawsuit against then Attorney General John Ashcroft and then-FBI Director Robert S. Mueller III. The court dismissed Iqbal’s complaint, denying him the opportunity to obtain court documents and statements through pre-trial discovery.

Other studies also show that a pro-business majority on the U.S. Supreme Court has made it much more difficult for victims of employment discrimination – especially age discrimination plaintiffs – to sue their employers.

New Blog on Age Discrimination in Employment

Age Discrimination in Employment .com

My interest in the problem of age discrimination in recent months has increasingly dominated this blog, which I created about five years ago to address the separate and equally important issue of workplace bullying and abuse.  Therefore, I have created a new blog called Age Discrimination in Employment.  Recent articles from this blog on the topic of age discrimination, and  future articles about age discrimination, will be posted at Meanwhile, this blog, When the Abuser Goes to Work, will continue to feature articles relating to general workplace discrimination, bullying and abuse.

Fair Pay for White-Collar Workers

Secretary of Labor Thomas Perez has submitted a proposed rule addressing employer abuse of the white-collar overtime exemption in the Fair Labor Standards Act (FLSA) to the Office of Management and Budget (OMB) for review.

The FSLA was passed in 1938 and established the 40-hour workweek. The white-collar exemption allows employers to deny overtime compensation to executive, administrative, professional, and outside sales employees.

President Obama issued a directive last March ordering Perez to proposed a revision of the FLSA  “white-collar exemption” to address employer abuse and to increase to the rule’s salary basis test which has not been changed since 2004.

The details of Perez’ proposal have not been disclosed. He is expected to recommend increasing the number of people entitled to overtime wages by making it more difficult to qualify for the white-collar exemption.

Continue reading “Fair Pay for White-Collar Workers”

The AARP’s Role in White House Conf. on Aging

What is the White House Conference on Aging (WHCOA) … Really.

Is it a serious examination of the problems facing older Americans that occurs once every decade, or is it a public relations opportunity?

At its fourth regional forum on Monday, the WHCOA held a panel discussion on retirement security that featured a panel of  bureaucrats who failed to even mention age discrimination. That’s like talking about California’s drought without mentioning climate change. A spokesperson for the Obama administration promised the President would protect Social Security and said the administration is working to make the process of retirement savings easier and more transparent. No one is asking why so many older Americans  are poor and struggling

Numerous attempts in recent months to contact Nora Super, executive director of the WHCOA, to urge her to address employment discrimination based on age have failed to elicit any response whatsoever. Why does the WHCOA seems to be focusing upon soft issues like “healthy aging.”

On its web site, the AARP says it is “co-sponsoring” and “co-planning” the WHCOA’s regional forums, along with a lobbying group called Leadership Council of Aging (LCAO), which describes itself as a coalition of 72 of the nation’s leading organizations serving older Americans. The contact person for “all questions” regarding the LCAO is Nicholas Barracca at I emailed that address on Monday and received an unsigned reply stating that the AARP is the “current chair organization” of the LCAO, which rotates chairs each year among five different organizations. I inquired again about the LCAO’s source of funding and Barracca replied that the LCAO is funded through membership dues.

At some point, it is fair to ask whether there is a conflict of interest with respect to the AARP’s dominating role in the WHOA forums.  The AARP is one of the largest private health insurers in America, earning nearly twice the amount from the sale of so-called “Medigap” plans than it receives in membership dues. There are five taxable, for-profit companies linked to the AARP brand:  AARP Insurance, AARP Services, Inc., AARP Global Network LLC, AARP Properties LLC, and AARP Financial, Inc.  It’s not illegal for the AARP to use its reputation as a neutral advocate for older Americans to sell its products to older Americans but surely the AARP should not be “co-planning” the White House’s once-every-decade examination of the plight of older Americans. That’s just common sense.

Continue reading “The AARP’s Role in White House Conf. on Aging”

It’s Time for a New Magna Carta

It’s time for a new Magna Carta.

Eight hundred years ago, an English monarch averted a Civil War by affixing his name to the Magna Carta, a 1215 document that contained concessions to England’s barons after years of arguments over royal power. The Barons were exasperated at the king’s arbitrary rule and high taxes.  The significance of this ancient document is that citizens are entitled to certain basic rights under the law and that no one is above the law. The Magna Carta was a major step toward forming modern democracies and influenced early American colonists and the formation of the U.S. Constitution in 1789.

Now, eight hundred years later, America has strayed from a basic tenet of the Magna Carta – that the government should be accountable to the people.

One reason that America is such an unequal society today is the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission. That 5-4 decision made it unconstitutional to ban free speech through the limitation of independent communications by corporations, associations and unions. This decision legalized super-PACs that secretly accept unlimited sums of money from corporations and spend the money to boost a specific candidate, often through negative television advertisements targeting the candidate’s opponent. The point of these PACS obviously is to influence the outcome of elections and the policies that are enacted by candidates who are elected to serve as politicians and judges.

According to Politico, the conservative billionaire Koch brothers are expected to spend at least $889 million to support GOP candidates in the upcoming presidential race and it is likely that equally obscene sums will be secretly funneled into the election campaign to support Democratic candidates.  The Koch brothers operate multi-national companies involved in transportation fuels (i.e. the oil industry), building and consumer products, electronic connectors, fibers, fertilizers, membrane filtration and pollution control equipment. Does anyone think their motive for spending $889 million is purely altruistic?

A new Magna Carta is needed to clarify that government must be accountable to people and not to artificial legal entities that are structured to advance business interests.

The Magna Charter was signed on June 15, 1215 at Runnymede on the banks of the Thames River in England.  One of most important and lasting provisions of the Magna Carta is a provision prohibiting the government from arresting without cause “free men”  (This did not include women or poor people).

The evidence that politicians today do not represent actual people is not hard to find.  In my book, Betrayed: the Legalization of Age Discrimination in the Workplace, I argue that older workers are subject to epidemic, unaddressed age discrimination that is literally built into our law.  The problem got much worse in 2009 as a result of a U.S. Supreme Court decision, which Congress has never bothered to fix.

CT Dismisses Case of Potentially Fatal Work Schedule

A federal appeals court in Maine has upheld the dismissal of a lawsuit filed by a department store clerk with type 1 diabetes who quit because she feared her erratic work schedule could actually kill her.

This is yet another example of how difficult it is for disabled employees to prevail in a lawsuit filed under the Americans with Disabilities Act.

Kohl’s Department Store adopted a new schedule in 2010 that required Pamela Manning to work so-called swing shifts where a night shift is followed by an early shift the next day. Manning told Kohl’s the erratic schedule was endangering her health.  At Kohl’s request, Manning submitted a letter from her endocrinologist stating that Manning’s health was suffering and she needed a predictable day shift to better manage the disease.

When Kohl’s refused Manning’s request for a steady and fixed shift, Manning walked away from the full-time job that she had held for approximately four years.  The U.S. Equal Opportunity Commission filed a lawsuit against Kohl’s for violating its duty under the Americans with Disabilities Act for failing to provide Manning with reasonable accommodations so she could continue to work

In a split decision, a three-judge panel of the U.S. Court of Appeals for the First Circuit in Maine acknowledged Kohl’s refusal to provide Manning with a set shift but said it could not “ignore” the fact that Kohl’s had offered to discuss “alternative reasonable accommodations.”  The court notes that its record is devoid of any “facts” regarding other accommodation Kohl’s was prepared to offer but blames this on the EEOC for telling Manning not to continue discussions with Kohl’s.

The EEOC claimed that Kohl’s effort consisted of disingenuous “empty gestures”  and the dissent accused Kohl’s of engaging in a “negotiating tactic that is unfair to disabled employees who reasonably believe that they confront imminent serious harm if an accommodation is not provided.”

In a meeting with store officials, Manning offered to work a set day or mid-day shift, even on weekends.  After Kohl’s rejected her offer, Manning told them she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours.  As Manning was cleaning out her locker, a store official asked her to consider undefined alternative accommodations. Ten days later, a store official telephoned Manning and suggested she consider alternative accommodations for part-time and full-time work. However, the official said she would have consult with Kohl’s corporate office about any specifics.  Kohl’s terminated Manning’s employment a week later

The majority said Kohl’s had made an “earnest attempt” to discuss other potential accommodations with Manning and that  Manning had failed her duty to engage in good faith discussions with Kohl’s.

Continue reading “CT Dismisses Case of Potentially Fatal Work Schedule”

Amazon’s Xmas Gift From U.S. Supreme Court

The nation’s high court ruled unanimously this week that warehouse workers aren’t entitled to pay for the half hour they spend being screened for theft at the end of their work shifts.

It’s another blow against low-wage workers by the most  pro-business, anti-employee U.S. Supreme Court in recent history.

The opinion, authored by Justice Clarence Thomas, held that the time the workers spent waiting to be screened isn’t an integral and indispensable part of their jobs. Thomas writes the workers were hired to take products off the shelves and package them for shipment to Amazon’s customers, not to go through security screenings. The Court ruled the screenings “are not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment.”

The ruling, in the case of Integrity Staffing Solutions, Inc. v. Busk, allows the company to force workers to stand in line without pay at the end of each shift to go through the humiliating process of emptying their pockets and walking through metal detectors.  And the company has no incentive to reduce the wait-time by adding staff to expedite the process.  Integrity Staffing Solutions operates two warehouses in Las Vegas and Fernley, NV, that serve as storage and order-filling facilities for the online retail giant

Two of Integrity’s hourly workers sued the company after it began requiring all workers to go through screening before they left the premises, a policy designed to deter theft of goods. The workers alleged they could spend 20 to 25 minutes in unpaid time waiting to leave their shifts because there weren’t enough screeners.

The high court’s ruling reversed a decision by the U.S. Court of Appeals for the Ninth Circuit, which held that Integrity must pay overtime for the screening process because the after-work review was a job requirement that was for the company’s benefit.

The Court ruled that the U.S. Congress passed the Portal-to-Portal Act of 1947 to  exempt employers from liability under the Fair Labor Standards Act  of 1938 for claims based on “activities which are preliminary to or postliminary to” the performance of the principal activities that an employee is employed to perform.  “The security screenings at issue are noncompensable postliminary activities,” ruled the Court.

Thomas notes in his opinion that the U.S. Solicitor General and the U.S. Department of Labor agreed with the Court that the screenings were “noncompensable postliminary activities.”

Of course, Congress could act in response to the Court’s decision and require employers to pay workers for time they are required to spend at work.  Hah!

Meanwhile, around 500 workers at two of German’s Amazon warehouses went on strike Monday morning to protest their pay and working conditions. Union supporters believe the company is misclassifying workers in order to underpay them, and the strikers hope to force the company to raise its starting pay from the current level of nearly $12 an hour. When the Communication Workers of America tried to unionize 400 workers in 2000, Amazon closed the call center they were targeting.

Bah Humbug.