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).