Support for American Workers is Hard to Find

Who is standing up for the rights of American workers?

GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.

Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983.  Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.

It may be an understatement to say that advocacy of worker rights  does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.

Under the Democratic administration of President Barack Obama,  the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit.  Also, mediation is completely secret so other potential litigants are kept in the dark.  Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age.  The EEOC received more than 20,000 age discrimination complaints in 2016; it  filed only TWO lawsuits with “age discrimination claims.” Continue reading “Support for American Workers is Hard to Find”

AN OPEN LETTER TO U.S. LABOR SECY. THOMAS E. PEREZ

DEAR U.S. DEPARTMENT OF LABOR SECRETARY THOMAS E. PEREZ:

I see that you have given your imprimatur to a new hiring initiative by more than a dozen major American corporations that seems on its face to blatantly violate the Age Discrimination in Employment Act of 1967.

Starbucks, Microsoft and Walmart, among others, recently announced the “100,000 Opportunities Initiative” to hire 100,000 16- to 24-year-olds by 2018. The program appears to be an end run around the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits age discrimination in hiring.

You are quoted in a press release  on Starbucks’ web site as stating, “The corporate leaders championing the 100,000 Opportunities Initiative recognize that promoting career opportunities for youth is a win-win, and I hope more employers will follow their lead.”

The press release states the initiative includes apprenticeships, internships, training programs, and “both part-time and full-time jobs.”  The ADEA unambiguously states that it is unlawful for an employer “to fail or refuse to hire” any individual “because of such individual’s age.”

The corporations are couching the initiative as a well-intentioned effort to help young people “who face systemic barriers to jobs and education.”  Yet, federal law does not allow employers to discriminate because of supposedly good intentions.

 The Obama Administration and the DOL should support programs that, for example, prepare high school drop-outs for careers rather than sanction age discrimination by America’s largest corporations.

As I’m sure you know, younger workers do not have a monopoly on systemic barriers to jobs and education. The unemployment rate is high at both ends of the age spectrum but older workers often are forced out of the workplace by age discrimination. Many are dumped into a financially ill-advised “early retirement” as a result of disproportionate long-term, chronic unemployment. A recent report by AARP found that half of the people in the U.S. between the ages of 45 to 70 who lost their job during the last five years are still not working. Older workers who are forced to retire at age 62 incur at least a 25 percent cut in Social Security benefits for the rest of their lives.  Age discrimination literally consigns many older Americans (especially women and minorities) to a life sentence of  poverty or near poverty .

It is unfortunate that the corporations participating in this initiative  refer indirectly to President Barack Obama’s 2010 executive order establishing the Pathways “Recent Graduates” Program, which permits federal agencies engage in age discrimination. The press release announcing the “100,000 Opportunities Initiative” begins this way: “Top U.S. – Based Companies Create Pathways to Economic Opportunity for Young Americans.”  This executive order arguably operates as a legal exemption to the ADEA for federal sector employers but  does not permit private sector corporations to violate the ADEA.

You may ask – why would older workers want entry-level jobs? Author Michael Gates Gill wrote a best-selling book in 2007 entitled, “How Starbucks Saved My Life.”  At age 53, Gill found himself chronically unemployed after being laid off from a high-paid job at an ad agency. He had no health insurance and was diagnosed with a brain tumor. His salvation was a job as an entry-level employee at Starbucks. Today, as a result of the 100,000 Opportunities Initiative, Gill would find a sign on Starbucks’ door stating: Older Workers Need Not Apply.

Please reassess your support for the 100,000 Opportunities Initiative, which really is just a pragmatic effort by big corporations to recruit and train young workers without having to bother with older workers who are disproportionately represented in the ranks of the long-term unemployed.

I understand you are a former civil rights attorney. I am sure you know that age discrimination is no different from any other type of employment discrimination. Age discrimination, like discrimination on the basis of race, sex or religion, is founded on false and harmful stereotypes, fear and animus directed toward a discrete group. I can’t imagine the DOL would support an initiative by America’s biggest corporations to hire only whites, men or Christians.  It is no more acceptable to support discrimination against older workers.

Respectfully, Patricia G. Barnes, J.D., author of Betrayed: The Legalization of Age Discrimination in the Workplace.

Hockey Faceoff Raises Bigger Questions

This is an era that is challenging the violent foundations of America’s major sporting institutions.

On a broader scale, it also is testing the extent of an employer’s responsibility to its employees.

This week, ten former hockey players for the National Hockey League (NHL) filed a federal class action lawsuit alleging the NHL failed to protect them from concussions and injuries that allegedly contribute to dementia and other brain ailments later in life.

The NHL lawsuit follows the settlement  last August of a similar lawsuit against the National Football League in which the NFL agreed to pay $765 million to settle claims from former players alleging the NFL failed to protect them from brain damage caused by repeated concussions.

Off the field or rink, if an employer knowingly permits working conditions that cause employees to suffer serious injury, the employer might be investigated and perhaps even prosecuted by federal authorities. (i.e.  prosecution of Massey Coal Mine official, 2012).

The Occupational Safety and Health  Act requires employers to provide their employees with work and a workplace free from recognized, serious hazards.  The Occupational Safety and Health Administration regularly investigates employers who fail to provide workers with proper safety equipment, resulting in injuries.

Why are injuries that stem from working in a mine or with heavy machinery more serious than injuries that result from playing a professional sport?  Professional sports may be big business but they are fundamentally just entertainment. Shouldn’t the U.S. Department of Labor hold all employers to the same standard?

Unnecessary Violence

I attended hockey games in the 1990s because I enjoyed watching the skill of players on ice skates handling a hockey puck  traveling 100 miles per hour down the ice.  But each game featured  players slammed violently against the plastic partitions and bloody battles over nothing more than macho posturing. I stopped going because it was too violent.

One of the players I watched in Pittsburgh was Bradley Aitken, who is a named plaintiff in the NHL  lawsuit.

It never occurred to me that Aiken and other players were potentially incurring permanent brain damages  but, according to the lawsuit, the NHL did know and still did nothing to protect the players.

The  NHL made it a penalty in 2010 to target a player’s head but still permits fighting and body checking.  Many hockey teams employ “enforcers” whose main job is to fight or violently body-check opponents.

“The NHL’s active and purposeful concealment of the severe risks of brain injuries exposed players to unnecessary dangers they could have avoided had the NHL provided them with truthful and accurate information and taken appropriate action to prevent needless harm,” the lawsuit says.

The players seek damages and court-approved, NHL-sponsored medical monitoring for the players’ brain trauma and/or injuries.

Bill Daly, the league’s Deputy Commissioner, issued a statement Monday: “ … [W]e are completely satisfied with the responsible manner in which the league and the players’ association have managed player safety over time, including with respect to head injuries and concussions.”

The NHL lawsuit was filed in United States District Court for the District of Columbia on behalf of players who retired on or before February 14, 2013.

 

Liability and School Shootings

Who should pay for the dead and injured?

Remember the days when reporters interviewed bystanders after an incident of gun violence who exclaimed: “I never thought it could happen here!”

That comment was oddly absent on Monday when a student shot a teacher and two classmates at a public middle school in Sparks, NV.  The shooter then killed himself. The teacher died of his wounds. The two boys who were shot were sent to a local hospital in critical condition.

When I was going to middle school, a school shooting would have been a bona-fide shock. That was before the tragedies at Columbine High School and Sandy Hook Elementary School. The sad reality is that few people today –at least those who read the news occasionally –  are truly surprised when a shooting occurs anywhere.

It’s often overlooked that a school shooting in a form of workplace violence for the employees of a school system.

The Occupational Safety and Health Act (Act) requires employers to furnish employees with a place of employment that is free from recognized hazards that cause or are likely to cause an employee’s death or serious physical harm.

At some point, the prevalence of gun violence at schools and other public facilities may give rise to a question of liability.

Officials said that one patrol officer was assigned to provide security at the middle school, as well as at least five elementary schools at various locations in the town. Is that reasonable in today’s climate of gun violence?  Police are routinely assigned to provide security at high schools. Was the town and school system negligent for failing to provide better security at the middle school?

A school shooting is not like an act of God – an earthquake, hurricane or tornado.  Because of the lack of sane gun control laws in America, it is entirely predictable that school shootings will occur and that teachers (as well as the children they teach) are at risk.

As I write this, police have yet to disclose any details about the identity of the school teacher. Was he a family breadwinner?  Did he have children who will want to go to college some day? Was he a son caring for elderly parents?

Should the spouse and children  or parents left behind pay for the economic loss resulting from the death of this beloved family member,  now gone because of a senseless act of gun violence? Should the town and its financially hard-pressed school system pay?  Or should gun owners and gun manufacturers pay?

Given the pathetic lack of action by the U.S. Congress, it could be that courts ultimately will have to address the issues of liability stemming from school shootings.  Of course, there’s little reason to think the courts will do a better job than the U.S. Congress given the reality of  partisanship and  the hunt for campaign contributions to judicial elections that cost millions.

According to the U.S. Department of Labor, the cost of workplace violence to an organization is “staggering. It is impossible to overstate the costs of workplace violence, because a single incident can have sweeping repercussions.”  The DOL cites, among other things, the loss of life or physical or psychological repercussions felt by the victims as well as the victim’s family, friends, and co-workers, and the loss of productivity and morale that sweeps through an organization after a violent incident.

Lots of Work for New Labor Secretary

Perez Faces Daunting Obstacles

Labor Secretary Tom Perez pledged this week to aggressively defend workers rights in a speech to the AFL-CIO but it may be a bit early to break out the balloons and confetti.

For one thing, Perez, who was appointed by President Barack Obama in July, has little power to overcome some of the daunting obstacles facing both the labor movement and American workers generally.

Research earlier this year documented what many casual observers already knew – the U.S. Supreme Court is, in fact,  the most anti-employee rights court in modern U.S. history.

In the past two years, the Court has issued decisions that make it far more difficult for plaintiffs to prevail in employment discrimination lawsuits, retaliation lawsuits and class action lawsuits. See One-Two Punch by Anti-Worker Court and Wal-Mart Doges Bullet.

Congress has done little or nothing to repair these devastating blows to worker rights.

Congress has not even addressed the Court’s absurd 2009 decision in Gross v. FBL Financial Services  to treat plaintiffs in age discrimination lawsuits less favorably than plaintiffs in race or sex discrimination lawsuits.

Finally, Congress’ so-called budget compromise – the sequester  – threatens to devastate the U.S. Department of Labor, which faces a potential budget cut of up to 26 percent in 2014.

Still …  Let the wind be at his back as Perez defends collective-bargaining rights, aggressively enforces wage laws and takes steps to improve workplace safety.

He also plans to crack down on employers who unlawfully misclassify workers as contractors instead of as employees and extend wage protections—such as overtime pay—to groups like home health-care workers who now have limited protections. Mr. Perez also said the DOL also will focus on job-training skills, calling he agency the “Department of Opportunity.”

And there’s no time like the present!

Union membership is down from a high of 20 percent in 1983 to 11.3 percent in 2012 (of which only 6.6 percent are private sector workers).

 

NFL Settlement Raises Legal Question

What Did the NFL Know?

The National Football League Thursday agreed to pay $765 million over 20 years to settle claims that it hid evidence about the dangers of head trauma suffered by NFL players.

Should that end the matter? Of course not. 

NFL players are employees. 

Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”

 Courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.

 The NFL owners had a legal duty to protect the players when they became aware (or should have become aware) of the devastating brain damage being suffered by their players on the field. At that point, the NFL and NFL team owners should have acted to “abate the hazard.”  Professional football is entertainment and there are many feasible ways the NFL could have made the game safer.   

As a result of the settlement, the NFL may be able to avoid the legal discovery process which would have included the deposition of  league officials and doctors about what they knew and when they knew it.  The settlement, however, does not prevent federal authorities from looking into whether  the NFL recognized the risks and still subjected players to serious physical harm. 

To allow the NFL to bury this matter under a rug through a private legal settlement would be akin to the federal government ignoring coal mine owners in West Virginia who failed to properly tunnel or vent a coal mine that caved in and resulted in  catastrophic loss of life. 

 Workplace Fatalities

The U.S. Department of Labor (DOL) reported last week that  4,383 workers died from work-related injuries in 2012 – that’s  3.2 workers  per 100,000 full-time equivalent workers. In a recent press release. DOL Secretary Thomas Perez said: “No worker should lose their life for a paycheck.”

The DOL’s list of  workplace fatality statistics probably didn’t include Kansas City Chiefs linebacker Jovan Belcher who fatally shot his girlfriend last December and then drove to Arrowhead Stadium and committed suicide in front of his coach and general manager. Or Junior Seau, a retired linebacker for the New England Patriots who fatally shot himself in the chest in at his California home last May.

 The deaths of Belcher and Seau were the latest to raise an alarm about head trauma suffered by  players on the football field. A  2012 study by Boston University School of Medicine of 35 former football players (33 had played for the NFL) found that 34 showed signs of brain disease before their deaths.  Dozens of athletes donated their brains to be studied by the medical school, which found a link between head injuries suffered in the heavy-impact sport and degenerative brain disease.

The Minimum Wage & Women

Women 60 % of minimum wage earners

I was waiting at the supermarket for a short, overweight woman wearing tight blue pedal-pushers to self-bag a mountain of groceries.  

The cashier, a woman in her mid-30s with pulled back hair and dark eye makeup, could not ring up my groceries until there was room on the counter.

 “Why is it so busy?” I asked.

“It’s the first of the month. Food stamps,” said the cashier..

I noticed her eye makeup had migrated  below her eyes forming a shadow. She was tired.

 “Have you been going at this fevered pace all day?” I asked.

“Yeah and this is my second job,” she said. “I’ll put in sixteen hours today.”

Suddenly she brightened. “But I am looking forward to taking a week’s vacation in ten days –  from one job, anyway.  It’s the first vacation I’ve had in years. I’ll find out what it feels like to do nothing again.”

Nothing?

Since when is having only one job a vacation? 

 Minimum Wage

The U.S. Department of Labor is engaged in a “myth busting” informational campaign regarding increasing the federal minimum wage – which is now  $7.25 an hour.

Most people think that it is mostly teenagers who earn the mininim wage. That’s wrong.

 A cashier who works 16 hours a day and considers having just one job a “vacation” is more representative of the minimum wage worker than a high school student earning pocket change.

According to DOL, 60 percent of those earning the minimum wage are women – fewer than 20 percent  are teenagers. And minimum wage workers brought home 46 percent of their household’s wage and salary income in 2011.

The minimum wage has not increased since 2009 and it has declined by 7.3 percent in buying power.

Hardworking Americans earning the minimum wage cannot afford to buy basic necessities and support a family –  never mind  health benefits and a pension.  Many Americans are working multiple jobs just to keep out of poverty.

There is a lot of ignorance about the impact of raising the minimum wage. The DOL and the Economic Policy Institute say that raising the minimum wage does not hurt small business or economic growth. Check out the following DOL graphic:

 

MWRaise-graphic1 

Good Jobs Replaced with Temp Work

One sector of the labor market is booming but there isn’t much cause for celebration.

 The U.S. Department of Labor recently reported that the number of  “temps”  in the United States has jumped more than 50% since the recession “officially” ended four years ago to nearly 2.7 million — the largest number since 1990.

Temps are temporary workers who typically receive low pay, few  (if any) benefits and scant job security.  Needless to say, temps are seldom in a position to demand decent working conditions and, of course,  don’t qualify for unemployment compensation when they are dumped by the employer.

The number of Americans in the tenuous temp workforce rises to almost 17 million when you factor in freelancers, contract workers and consultants. That’s about 12 percent of the labor force.

Careerbuilder, the internet jobs web site, reports there are 17 job areas where temp work is growing fastest, including team assemblers, office clerks, home health aides, and maintenance and repair workers.

Somewhat surprisingly, the CareerBuilder list includes some sectors that rarely used temps in the past, including computer programs, accountants and auditors, registered nurses, electricians and business operations specialists.

 An Associated Press survey of 37 economists in May found that three-quarters thought the increased use of temps and contract workers represented a longstanding trend.

Last year, this blog reported on a study by the Center for Economic and Policy Research (CEPR) that found fewer than a quarter of American workers have a “good job” today compared to the past, largely because of policy decisions that have undercut labor.

 According to the CEPR study,  Where Have All the Good Jobs Gone, a good job is defined as one that pays at least $37,000 per year, has employer-provided health insurance and an employer-sponsored retirement plan.

 The CETR blamed the decline in good jobs on policy decisions, rooted in politics, that have resulted in a drastic loss of workers’ bargaining power and the restructuring of the labor market since the end of the 1970s.

Readers are encouraged to visit ProPublica, a web site featuring journalism in the public interest, to read more about the treatment of temps in American workforce.

Wage Theft Goes Unpunished

If you rob a liquor store and get caught, you may serve time in prison.

But nothing much happens when an unscrupulous employer steals money from an employee’s paycheck.

That’s the sad conclusion of a national report recently released by the Progressive States Network (PSN), entitled,  Where Theft is Legal: Mapping Wage Theft Laws in the 50 States.

The PSN report finds that state laws are grossly inadequate to combat the epidemic of “wage theft” by unscrupulous employers in the United States. Some states levy no fines at all for wage theft, according to the report, while most others invoke penalties smaller than a speed­ing ticket.

 Wage theft is the systemic non-payment of wages that owed to workers.

The PSN estimates that more than 60% of low-wage workers suffer wage violations each week. On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year.  For low-wage workers, that amounts to 15% of their annual income, at average earnings of $17,616 per year.

The problem also costs states millions of dollars each year in lost revenue.  Yet, according to PSN, the vast majority of states have few, if any, protections against wage theft.   “Our comprehensive survey of state laws … reveals that 44 of the 50 states (plus Washington, DC) do not receive passing grades on combat­ing the wage theft epidemic,” states the PSN report.

Even states that ranked highly in the PSN survey –  New York and Massachusetts –  received barely passing grades.

Two states — Alabama and Mississippi — scored zero points in the survey, indicating they essentially offer workers no protection at all against wage theft.

Wage theft typically occurs when employers misclassify workers as exempt employees under federal or state wage and hour laws to avoid paying overtime. For example, a cashier may be called a manager even though he or she has no management duties.. Or employers fail to pay workers the minimum wage or cheat them of earned benefits.  Subcontracting employers often try to shirk their responsibilities under wage-and-hour law by claiming that a temp agency or another inter­mediary is actually the sole employer responsible for wage payment.

The PSN reports the ability of the federal and state governments to enforce wage and hour laws has sharply declined in recent years.

The U.S. De­partment of Labor (USDOL) has only one enforcement agent for every 141,000 workers, down from one per 11,000 workers in 1941.  The PSN reports that state revenue shortfalls and layoffs have resulted in less than 15% of the enforcement coverage offered by state agencies several decades ago.

In 2008, the National Employment Law Project (NELP) and a team of advocates, policy groups, and academic research centers surveyed workers in Chicago, Los Angeles and New York and  found:

  •  64% of low-wage workers experience wage theft each week.
  • 26% are paid under the legal minimum wage.
  • 76% of workers owed overtime go unpaid or underpaid.

Since the NELP report, New York passed the Wage Theft Prevention Act of 2010, which is considered to be the strongest state law in the country, with beefed up anti-retaliation provisions, requirements for notification, and a remedy that allows workers to recover damages.

Founded in 2005, the PSN provides coordinated research and strategic advocacy tools to state legislators and their staffs, empowering these decision-makers to adopt progressive policies.

How the Justice Dept. Gets Away With It

 The U.S. Department of Justice is advertising for experienced, licensed “volunteer”  attorneys to work for a year or two without pay alongside Assistant U.S. Attorneys, who earn a starting salary of more than $75,000.

If such an  advertisement was placed by a private employer, it would raise questions of legality? How does the Justice Dept. get away with blatant exploitation of workers?

The Fair Labor Standards Act (FLSA) requires employers to pay workers the minimum wage and overtime except in a few limited circumstances – those who volunteer for religious, charitable, civic or humanitarian non-profit organizations and (you guessed it) individuals who volunteer to perform services for a state or local government agency.  The only time a for-profit employer can get away without paying a worker is when the worker is a so-called “intern,”

All of this comes at a time of high unemployment for lawyers, particularly graduating law school students.

The Wall Street Journal did a story on Sept. 2, 2011 stating there currently is less than one opening for every 100 working attorneys. Unemployment is a serious problem for attorneys, just as it is for every other occupation right now.  The unpaid “volunteers”  displace regular employees. Also, there is just something downright hypocritical about the situation. How can federal prosecutors go after employers who violate the FLSA with a straight face?

Finally, there is a great deal of “classism” in our society. We bemoan the immigrant farm worker who is cheated by the big farm corporation but it’s OK for some reason to exploit attorneys?  Is it some kind of misguided vanity that allows the bar to look at a situation such as this and fail to see the problem?

Without the  FLSA exemption, the use of unpaid Special Assistant U.S. Attorneys (SAUSA) would clearly violate the FLSA.

The SAUSA does not qualify as an intern because training is not the primary purpose of the SAUSA; because the government derives benefit from the SAUSA’s work; and, the SAUSA is doing the work of a regular employee and replaces regular employees.

The SAUSA is already a trained, licensed, experienced professional.  In fact, they have to have “outstanding” academic records and “superior” research and writing skills.   The SAUSA works alongside paid Assistant U.S. Attorneys doing legal research, drafting briefs, conducting hearings and trials, and attending judicial proceedings .  The “volunteer” gets nothing except the dim, uncertain hope of future employment.

Imagine a situation where a SAUSA, who is working for nothing, prosecutes a for-profit employer for failing to pay just wages and overtime.

The DOL issued a “fact sheet” last year listing the circumstances that dictate whether or not an intern must be paid. Essentially, a for-profit institution does not have to pay an employee whose work serves only his or her own interests.  The DOL listed six criteria to determine whether a worker is a bona fide intern:

  1. The internship is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

There is little question that a SAUSA does not qualify as an “intern” and that is probably why the SAUSA is not called an intern.

Ironically, the Justice Department advertisements assure that it is an “Equal Opportunity/Reasonable Accommodation” employer.

(Note: this is Part II of a story written on Sept. 7, 2011, Justice Department Seeks Law-Unteers)