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News and Issues Blog: Today's Workplace

Outten & Golden LLP

Your source for the latest developments in workplace rights and employment law, "Today's Workplace" is the blog (weblog) written by Paula Brantner, Executive Director of Workplace Fairness. In each entry, Paula focuses on legal and political information relevant to employee rights and fairness issues in the workplace.

Tuesday, July 26, 2005
Blog Roundup: Major Union Schism
You may be aware of what has happened over the last few days at the AFL-CIO Convention, where the Service Employees International Union (SEIU) and the International Brotherhood of Teamsters (Teamsters) have announced their plans to leave the Federation, as the AFL-CIO is commonly known. SEIU and the Teamsters head a new coalition of dissident unions, known as the Change to Win Coalition, joined by the United Food and Commercial Workers (UFCW), Laborers International Union of North America (Laborers), UNITE HERE (the textile, garment, and hotel employees), and the United Farm Workers (UFW). As the events unfold in Chicago, some very capable bloggers are on the story. Rather than take sides or attempt to analyze all that has happened in this complex situation as it unfolds, we'll present some of the best commentary out there from the blogosphere, highlighting some blogs worth noting even when they're not writing about this subject.

Jonathan Tasini's Working Life: Jonathan is a long-time labor writer and former head of the National Writer's Union. His commentary, written from the floor of the Convention, is among the most knowledgeable and insightful out there.

They Are Out!!!
But, here’s the most immediate question that the delegates cannot ignore: How does the AFL-CIO replace the $20 million that it will lose with the disaffiliation of these two huge unions? Do the Federation officers have a plan for increasing the per capita taxes at this convention? Because if they don't, then, severe cuts will need to be made--on top of the large staff cuts that just took place in the past couple of months.

I don't see how President Sweeney, on the eve of his certain re-election, can avoid giving the convention delegates a straight answer about how the Federation will survive financially without major steps being made.
More on the Money Hole

Yesterday, I suggested that the delegates need to be told specifics about the money issue....This is the big elephant in the room--and it has to be noticed before it leaves a huge dump for affiliates and central labor bodies to clean up.

Monday--First Thoughts

From the coalition's standpoint, they see it as a matter of a gap of principles and programs for the future. It wasn't just the difference in dollars between what should be invested in organizing versus politics--which, at the AFL-CIO level, wasn't a huge difference. It was, as they see it, a difference in how to redefine the purpose and power of the AFL-CIO, both by streamlining what it did and also giving it more authority to hold member unions accountable, particularly for organizing strategies. Is there a labor book to be written, "You Just Don't Understand!!!"


Tim Nesbitt: Oregon AFL-CIO: Tim is also reporting from the Convention floor and has some thoughtful things to say.

Searching for a "More Perfect Union"
Last November, as this debate was heating up, I compared our union movement to our country before we had a strong central government:“When it comes to organizing, our unions have to agree on where they want to concentrate their efforts. Workers will be better served if we coordinate more and compete less. But our Articles-of-Confederation structure, in which unions have the autonomy of separate states but only limited agreements on their territory, hasn’t been conducive to concentration, much less coordination. Planting a flag in an unorganized workplace shouldn’t be the way for a union to lay claim to new organizing opportunities. We need agreement on a new map for organizing in the global economy, new strategies for contesting corporate power and commitments to help each other win, industry by industry.” To continue the analogy to the AFL-CIO’s constitutional convention that began today, we just learned that four states decided not to send delegates, and two of those states decided to set up their own government. So it appears that our unions will soon have two models of governance to choose from.
A Fighting Union Movement

The debate was a mixture of hope and hard feelings, alarm and reassurance, recrimination and rededication – laced with more energy than I’ve witnessed at any union gathering since I had to duck chairs at a New York City taxi drivers’ meeting in 1968. But it was less a debate about program and more about approach, not at all about where we need to go and all about how to get there. Most of all, it seemed to be a contest of wills: Who wants it more passionately? And passions ran high on both sides.


TPM Cafe's House of Labor Blog: This is a group blog on labor topics, which features great postings from Nathan Newman and others.

Nathan Newman: Not Such a Big Deal
In a contrarian mood, I think people are making too much of the "split" in the labor movement, as if labor hasn't continually been in internal tussles between unions, whether they were in or out of the same labor federation. Yes, a few unions won't be paying dues to the AFL-CIO. And as for fears this will disrupt unity in political operations among unions, there has never been coordination except when individual unions want there to be.
Bill Fletcher: Why the split is a big deal

the great Un-debate showed an amazing capacity to ignore the rank & file, and particularly to ignore the issues and involvement of trade unionists of color. i find this especially damning for those labor leaders who have positioned themselves as visionaries. If the base is not in the vision, except as the object of the work of 'great leaders,' what sort of movement are we building?


Now for the Official Word from the warring camps:

AFL-CIO: blog, Convention news, President Sweeney speech
Proposal: Strengthening Our Union Movement for the Future

Unite to Win: blog, news, Anna Burger statement (Coalition Chair), Andy Stern statement (SEIU President)
Proposal: Restoring the American Dream

Comments: Post a Comment
Happy Birthday, Dear ADA
Today, July 26, 2005, marks the 15th birthday of the Americans with Disabilities Act. Like many teenagers, the ADA can give people fits. It continues to go through some growing pains, and there's frustration that it's not all grown up. But it also has a distinct personality of its own. And it has unselfishly given back to others in its short life. Let's hope the ADA survives to become a productive adult, given all the abuse that it's taken along the way. Enough with the tortured teenager analogies...let's see what's going on!


Who's having a party?

The Kidspace Children's Museum in Pasadena, that's who. Well, actually, you missed it already -- it was held on July 9. But the museum thought it was important to celebrate with events geared toward the "integration and education of all children," in order to "bring able-bodied and disabled children together." (See Whittier Daily News.) And we're not talking whacking the pińata while blindfolded: instead, there was a soccer challenge, where players wore goggles that simulated different types of vision, a sign language workshop and a wheelchair basketball demonstration with the Fast Breakin' Lakers, a wheelchair basketball team sponsored by the Los Angeles Lakers.


Walk A Mile In My Wheelchair

In Reading, Pennsylvania, the group Abilities in Motion is sponsoring a walk around town: in a wheelchair. Able-bodied participants can experience what Adrienne Greth went through:



I never realized exactly how different it is for someone to be in a wheelchair and maneuver around the streets of reading. It's not just the physical aspect- it's the aspect of construction of the road and the bumps in the sidewalks and that sort of thing and that's a challenge for me.
(See WFMZ-TV transcript, video clip (Real Player required))


Harkin-ing for Shoes

Sen. Tom Harkin, chief sponsor of the ADA, tells about his personal inspiration for moving the law forward: his deaf brother Frank, "was sent far from home to a "school for the deaf and dumb" (yes, people routinely used this offensive term - and worse), and later was offered just three job possibilities: baker, printer's assistant or cobbler." Thanks to Harkin's efforts, as well as many others in Congress:


Fifteen years after the act's passage, the physical impacts of ADA's quiet revolution are all around us. Sidewalks are equipped with curb cuts allowing access for people using wheelchairs. New buildings are outfitted in countless ways, with ramps, wide doors and large bathroom stalls, to accommodate people with disabilities. Service animals are welcome in restaurants and shops. For those of us who are able-bodied, these changes are all but invisible. For a person with a disability, they are transforming and liberating. So are provisions in ADA outlawing discrimination against qualified individuals with disabilities in the workplace and requiring employers to provide "reasonable accommodations."
Enough with the revolutionary talk, though...as one wheelchair user told Harkin during the campaign to pass the law, "Senator, I know that's important. But I just want the freedom to go out and buy a pair of shoes, just like anybody else." (See Des Moines Register op-ed.)


Progress is Slow

While no one wants to go back to the pre-ADA days, for some, there is not enough to celebrate. "For employment, the ADA has not been a real success at all,'' said Rachel Urquhart, executive director of the Arc of Kent County. "Too much bad case law was made by people bringing wrong ADA claims, and they have watered down the strength of the act for the people who have true disabilities.'' (See MLive article.)

The courts are to blame, says UPenn law professor Louis S. Rulli: "The courts have construed the employment provisions very narrowly. In a series of decisions by the U.S. Supreme Court and other leading federal courts they have cut back the reach of the ADA. They've interpreted the statute in ways that were not intended." Part of the reason is based on hostility to the ADA, he says. "People view it as giving the disabled an added advantage over other workers in the workplace -- akin to affirmative action analogy -- that somehow by accommodating people with disabilities we're giving them an advantage over people who are not disabled, and as a result there's been a limiting of the (employment) provisions of the ADA in the courts." (See Ventura County Star.)


Let's Keep Moving Forward

Statement of House Democratic Leader Nancy Pelosi:


The 15th anniversary is a call to renew our efforts to realize the promise of the ADA and work to restore its full protections which have been stripped away by recent court decisions. We must implement policies intended by the ADA, so that individuals with disabilities can obtain jobs for which they qualify. Full and equal access for individuals with disabilities to education, governmental services, public accommodations, transportation, housing, and the right to vote must be secured. Our work is far from finished. Even as we maintain our hard-fought gains and prevent harmful proposals, we must continue to advance the rights of all. It is our journey and our obligation as Americans.

Now I looked for a statement by Speaker of the House Dennis Hastert, and I didn't find one. Supporting the ADA isn't a partisan activity: after all, who signed the ADA 15 years ago but George Herbert Walker Bush?


More Information:

Workplace Fairness: disability discrimination
Short-Changed: hidden barriers: discrimination

Equal Employment Opportunity Commission (EEOC):
Facts About the Americans with Disabilities Act
The ADA: Your Employment Rights as an Individuals with a Disability

Sam Bagenstos: The Disability Law Blog

Comments: Post a Comment
Monday, July 25, 2005
"Treating People Decently is Sometimes a Competitive Advantage"
We often quote Paul Krugman of the New York Times in this blog, and include his articles in the Workplace Fairness daily newsletter, In the News (free if you're not already a subscriber), because his analysis is just so right. His latest, "Toyota, Moving Northward," echoes a point made a week ago by another Times article about Costco: How Costco Became the Anti-Wal-Mart, which is that "treating people decently is sometimes a competitive advantage." At Workplace Fairness, we're not such raging lefties that we think a company has to go bankrupt while bending over backwards to favor its employees, and we applaud the CEOs and politicians out there who feel the same way.

The announcement last month didn't make too many people here in the United States very happy: a new Toyota plant, producing RAV4 mini-SUV's, will open in Ontario, Canada, instead of the United States. It wasn't for lack of trying: many U.S. states had courted the plant with large financial incentives, and made visits to Japan to try to land the deal. (See The Detroit News to read about Michigan's efforts.) In the end, the decision was made on the basis of two major areas where the Canadians were deemed to have the edge on the US: education and health care.

When it comes to education, the industry buzz is that Canadian workers are better trained than their counterparts. "The level of the workforce in general is so high [in Ontario] that the training program you need for people, even for people who have not worked in a Toyota plant before, is minimal compared to what you have to go through in the southeastern United States," said Gerry Fedchun, president of the Automotive Parts Manufacturers' Association, whose members will see increased business with the new plant. (See Canadian Press article.)

You can try to dismiss Fedchun's remarks by calling him a crazy Canuck, but he's not the only one saying that. Another article claims that when Nissan opened its assembly plant in 2003 in Canton, Miss., its work force wasn't as trained as its officials had thought. (See Knoxville News Sentinel article.) And in Alabama, trainers had to use "pictorials" to teach some illiterate workers how to use high-tech plant equipment. (See Canadian Press article.)

As for health care, Toyota's not the only automaker wishing for the Canadian system of universal health care. Canadian Industry Minister David Emmerson said that Canadian workers on average are $4 to $5 an hour cheaper to employ than Americans, mostly due to Canada's health care system. (See A Simple Formula.) For every vehicle produced in 2004, GM spent $1,525 on employee health care. That expense adds to the sticker price of each automobile and creates a competitive disadvantage with foreign automakers. (See Times-Tribune article.)

But until we have a system of universal health care in this country, with some questioning whether that will ever happen, the solution is not to provide your workers with no education, training, or health benefits. Companies are starting to find that "it's better to pay your workers a decent wage and offer them decent benefits because in return, you end up with a more efficient, more productive workforce." (See A Simple Formula.)

Costco is leading the way, at least among companies willing to talk openly about their business strategy as it relates to their employees. (See New York Times article.) And it seems to be working. Last year, Business Week compared Costco to Wal-Mart to conclude that

[B]y compensating employees generously to motivate and retain good workers, one-fifth of whom are unionized, Costco gets lower turnover and higher productivity. Combined with a smart business strategy that sells a mix of higher-margin products to more affluent customers, Costco actually keeps its labor costs lower than Wal-Mart's as a percentage of sales, and its 68,000 hourly workers in the U.S. sell more per square foot. Put another way, the 102,000 Sam's employees in the U.S. generated some $35 billion in sales last year, while Costco did $34 billion with one-third fewer employees.
(See Business Week article.)

Wall Street grouses that Costco is too generous to its employees. Says analyst Emme Kozloff, "He [CEO James Senegal] has been too benevolent. He's right that a happy employee is a productive long-term employee, but he could force employees to pick up a little more of the burden." Senegal begs to differ: "This is not altruistic. This is good business." Stockholders agree: Costco's stock price has risen more than 10 percent in the last 12 months, while Wal-Mart's has slipped 5 percent. Costco shares sell for almost 23 times expected earnings; at Wal-Mart the multiple is about 19. (See New York Times article.)

As long as America isn't investing in its workforce, and our government isn't working on health care solutions, here's the outcome we can expect, according to Krugman.
[T]he result of international competition will be to give Canada more jobs in industries like autos, which pay health benefits to their U.S. workers, and fewer jobs in industries that don't provide those benefits. In the U.S. the effect will be just the reverse: fewer jobs with benefits, more jobs without.
(See "Toyota, Moving Northward.") We look forward to the day when more CEOs, like Costco's Sinegal, recognize that the best way to compete in the global economy is to treat workers better instead of worse. But we have to ask, how many jobs must be lost in the meantime?


More Information:

Workplace Fairness: Short-Changed
profits before people: the income gap
critical condition: healthcare

Comments: Post a Comment
Wednesday, July 20, 2005
Blog Roundup: Supreme Court Nominee John Roberts
Everyone and their first cousin is now commenting on U.S. Supreme Court nominee John Roberts, and the ink being spilled (or should I say the pixels being generated) is likely to be plentiful for a while. Rather than generating even more commentary, I'm going to bring you what others are saying about John Roberts, especially as it relates to employment issues. There will be plenty of time for careful and thorough analysis, and most certainly the the employee rights advocates at the National Employment Lawyers Association (NELA) will be a part of that. But for now, there's some reasonably insightful commentary out there already, and this will save you from getting out your hip-waders.

NELA's President Janet Hill had this to say, upon release of the nomination:
NELA is reviewing Judge Roberts’ record, and we expect the Senate to fulfill its constitutional duty to conduct a thorough and independent review of his qualifications, background, and constitutional philosophy. There is no need to rush to a decision on a nominee. Justice Sandra Day O’Connor has said her resignation will be effective upon the confirmation of her replacement. There is time for the confirmation process to take its course and to guarantee that the next Justice will protect the rights and freedoms of every American.
(Press Release, July 20, 2005)

NELA is also urging that Roberts' confirmation process demonstrate that he has:
· A record of commitment to the progress made on civil rights, women's rights and individual liberties;
· Manifested a respect for the constitutional role Congress plays in protecting these rights and in ensuring recourse when these rights are breached;
· Demonstrated a commitment to enforcement of Congressional intent with respect to the laws protecting employees' rights, and does not place the interest of employers over the rights of employees;
· An open mind to decision-making with an understanding of the real-world consequences of his decisions; and
· An allegiance to the fundamental principle of an independent judiciary.
(Press Release, July 20, 2005)

Now that the nomination has been announced, many bloggers are rushing to share their two cents, and then some, about Roberts. We, of course, take a special interest in how Justice Roberts, should he assume that title, is likely to rule on cases affecting workers. Here's what some had to say about that specifically:


Jordan Barab -- Confined Space:

Desperate to divert media attention away from consiglieri Rove, President Bushed rushed out his Supreme Court nomination tonight: John Roberts. The general consensus seem to be that although Roberts is (very) conservative, he's not a right-wing wack-job, so he's probably a shoe-in. And although the right wing blogosphere is delighted, even some lefties think it could have been much worse. On the other hand, it's still early. There could be an illegal alien in the closet. Maybe he drank a beer before the age of 21 or made an illegal right turn. But, of course, the question on all Confined Space readers' minds today is: "How is John Roberts on workplace safety and labor issues?" The answer is probably not great.

(John Roberts)


Donald Castor -- All Deliberate Speed

As a Judge: So those are all the opinions (of which I am aware) that Judge Roberts has authored that touch on employment law. There's nothing that jumps out as wrong or unfair. But while this is a very small sample size (eight opinions), it is somewhat disconcerting that Judge Roberts has never authored an opinion that rules in favor of a labor union or employee. Hopefully he'll quickly learn how to do so as an associate justice.

As a Litigator:
Overall, Judge Roberts's record should be cause for concern for those who make their living representing employees. As a judge, he has consistently ruled against employees. As a litigator in private practice, he consistently represented employers. If Judge Roberts position were this one-sided on abortion, he would likely be filibustered. But since employment law doesn't quite grab headlines in the same way, this particular part of his record will likely get little attention from the press.

(Judge Roberts' Record on Employment Law) (See also, Roberts by the Numbers and A Little Clarification About Roberts)


Nathan Newman: NathanNewman.org

[H]ere's the best case scenario on Roberts. There is still a reasonable possibility that Roberts has just kept his mouth mostly shut for three decades and will emerge as a raving ideologue to the Right of Clarence Thomas. But then, there is some chance that he was mostly an ambitious guy who hitched himself opportunistically to the Right in the Reagan era and could surprise his supporters once he is on the bench.

But the most likely possibility is that he won't be surprising and here's my bet on how he will perform from the evidence. In general, he will be less of a judicial activist than O'Connor in both bad ways but also potentially good ways.

(Evaluating Roberts: Sympathy for the Devil)


Michael Fox: Jottings by an Employer's Lawyer
[Roberts] represented Toyota in Toyota Motor Manufacturing Inc. v. Williams, one of the major cases viewed as being a limiting decision interpreting the Americans with Disabilities Act. And for those Senators (e.g. Senator Leahy D-Vt) who have been so liberal in their praise of retiring Justice O'Connor, it will be interesting to see how they can bash Judge Roberts for being an advocate in that case, decided unaminously by the Supreme Court and authored by none other than Justice O'Connor.
(Now Let the Feeding Begin)

[See also A First Look at Judge John Roberts on Labor and Employment Law Issues, More on Judge John Roberts' Decisions in Labor and Employment Cases , and A More Complete List of Judge John Roberts' Labor and Employment Related Decisions, for a flavor of the management-side perspective on Roberts' employment decisions.]

Other good resources:

Goldstein and Howe's The Supreme Court Nomination Blog
NELA's John Roberts page: Confirming Justice: Roberts Nomination
Moving Ideas: Supreme Court Guide for Activists

Comments: Post a Comment
Monday, July 18, 2005
Now Where's the Good News? Coffee and Doughnuts Just Don't Cut It
Anyone who knows anything about the enforcement of legal standards in the workplace knows that immigrant workers, especially those who are undocumented, are exploited by employers who do not comply with legal requirements governing wages, dangerous conditions and uncompensated workplace injuries, discrimination, and other labor laws. Workers who attempt to remedy such abuse routinely face physical and immigration-related threats and retaliation. So what should the government's role be when it comes to addressing these problems? Can we agree on what it shouldn't be: making that situation worse by exploiting the same fears and vulnerabilities as unscrupulous employers? Yet that's exactly what the Immigration and Customs Enforcement (ICE) agency recently did in North Carolina.

In early July, 48 workers at Seymour Johnson Air Force Base in Goldsboro, North Carolina, saw a flyer for a workplace safety training. Not just any training, however, but one supposedly sponsored by the Occupational Safety and Health Administration (OSHA), at which attendance was mandatory. So they did what any good worker would do when asked to attend a required meeting (especially with free coffee and doughnuts offered): they showed up for it. However, instead of learning about how to reduce the number of workplace injuries, they learned all about hypocrisy and subterfuge.

For instead of a meeting led by OSHA bureaucrats, they encountered ICE officers who took them into custody for immigration violations (after finishing the coffee and doughnuts, of course). The 48 workers from Mexico, Honduras, El Salvador and Ukraine, who were employees of private contractors doing roofing, electrical, masonry and other construction work on the base, now face deportation. (See News-Observer article.) All because they attended a mandatory meeting to learn about health and safety issues. I guess having workers in this country who follow their employers' commands and want to learn how to avoid getting hurt or hurting others is a real problem: sounds exactly like the kind of workers we would want to get rid of.

You have to wonder who came up with this plan -- hopefully it didn't emanate from the ICE Office of Intelligence. But like every other not-so-bright idea coming from the government these days, ICE's methods were justified in the name of national security. “When individuals use false documents to hide their identity, the security and safety of our country is at risk,” said Tom O’Connell, the ICE Resident Agent-in-Charge in Raleigh. (See ICE News Release.) ICE spokesperson Dean Boyd takes it even further (or deeper, as your perspective may be): "We believe it is a very serious vulnerability when there are illegal aliens working at Air Force bases, nuclear power plants, chemical plants and airports. They have access to some of the most sensitive work sites in the U.S. Our job is to take actions to immediately remove them from positions where they can do harm." (See New York Times article.)

It gets even better: one worker who was there reported that an official stood up and said "I got good news and bad news. The good news is we are not from OSHA, and the bad news is we're from the immigration office." Not being able to give workers information that might keep them from getting killed or maimed, that's good news? You've got to be kidding me.

And if you're really partial to an Alice-in-Wonderland-like view of the world, you'll also be happy to know that ICE did things this way out of concerns for the workers' safety. About the ruse, ICE spokesperson Boyd said: "The primary reason to use tactics like this in federal law enforcement is to get people in a location where they can be arrested without running all over the place. That helps ensure the safety of these immigrants, the agents, the air base and the community at large." (See New York Times article.)

Now, any effort to get employees to cooperate with health and safety trainings is at risk, as was pointed out by Allen McNeely, head of the North Carolina Labor Department's Occupational Safety and Health division. "We are dealing with a population of workers who need to know about safety," McNeely said. "Now they're going to identify us as entrappers." (See News-Observer article.) Yet another branch of the government, the Centers for Disease Control, has identified workplace health and safety issues of major concern to foreign-born workers. Between 1999 and 2000, while the number of occupational fatalities in the country decreased, there was a 5% increase in the number of fatalities among foreign-born workers, and a 12% increase in the number of Hispanic-worker deaths (even though the Hispanic/Latino workforce grew by only 6%). (See Hispanic Health Program report.)

Finally, there's been some Administration conduct so outrageous that even the Department of Labor (DOL), headed by Administration loyalist Elaine Chao, even criticizes it. DOL, fresh from dismantling overtime in the name of reform, and rumored to be preparing something similar for the Family and Medical Leave Act, also oversees OSHA. OSHA responded to news of the sting operation with "[t]his is not something we were involved in, and we do not condone the use of OSHA's name in this type of activity." (See New York Times article.)

ICE and OSHA will have to duke it out over future stings: perhaps Jonathan Snare and Michael Garcia can arm-wrestle, or better yet, subject them to a real workplace hazard (toxic chemicals or a trench, anyone?) and see who survives longest. ICE's Boyd concedes, "We certainly understand OSHA's concerns about the use of their name," Mr. Boyd said. "We're putting in place procedures to ensure appropriate coordination." (See New York Times article.) Sounds to me like ICE can't wait to do it again, since it worked so well, and isn't terribly concerned about the ramifications.

In the meantime, workers either won't get the health and safety information they need, or they get fired for missing mandatory meetings. And they certainly won't trust any government organization to actually help them: why should they, when things like this happen? Sorry, but we agree with Confined Space: that all sounds like bad news to us, even when accompanied by coffee and doughnuts.


More Information:

Workplace Fairness: Short-Changed
hidden america: undocumented workers
in harm's way: health and safety

Confined Space: the excellent blog on workplace health and safety issues that broke this story.
OSHA or Immigration: How To Tell the Difference
NY Times Covers Impersonation Story
Betrayal in North Carolina: Unions Condemn OSHA Impersonators
Stupid and Deadly: Undocumented Workers Lured into Arrest With Promise of Safety Training
What is OSHA doing About Immigrant Worker Safety?


AFL-CIO Statement

United Food & Commercial Workers Statement

Comments: Post a Comment
Friday, July 15, 2005
Barely Staying Afloat? Just Get Another Job
With all of the evidence that wages have been more or less stagnant, especially for low-wage workers, over the last several years, the question then arises: how come our economy is as sound as it is? Who has the money to buy any of the consumer goods that are being produced for the masses? One explanation which is increasingly gaining credence is that workers who are just barely getting by are being forced to take second jobs. What happens when this development moves from being a growing trend to a societal expectation? Should the American value of "those who work hard get ahead" mean that only those who work 60 or 70 hours a week deserve to make it?

A recent New York Times article asks: How Long Can Workers Tread Water? The article reports that
The wages of typical workers are treading water, growing roughly at the same rate that inflation eats into their buying power. Last week, the Labor Department reported that average wages for production and nonsupervisory workers in the private sector, about 75 percent of the labor force, reached $16.06 an hour in June, just 2.7 percent above the level a year ago.
Yet average incomes are growing at a significantly more rapid pace, and for low-income workers, that means an extra job. The Times tells about James Barnes, who makes only $350 a week as a security guard at an office building on Madison Avenue in Midtown Manhattan (while some of the people working in that building easily make that in an hour), and has not had a raise in years. Barnes' income just jumped sharply, however, because he took on a newspaper delivery route from 3 a.m. to 7 a.m., for an extra $235 a week. That allowed him to buy an i-Pod, which some struggling to survive would definitely consider a luxury item, while others might think he more than earned it after several months of working so early in the morning.

It used to be that "working hard" was measured by productivity: "When workers produce more—either tangible products or services—in an hour of work than before, they are being more efficient and, usually, that means more profit for a corporation. Historically, increased efficiency flowed to workers in the form of higher wages." (See TomPaine.com article.) However, economists are sounding the alarm that the link between productivity and wages is broken.

Productivity has grown almost three times faster than wages since 2001. (See EPI Economic Snapshot.) During that time, 70 percent of the nation’s income growth has gone straight into corporate coffers as profits—presumably to continue to finance staggering pay and benefits for executives—a complete reversal from the previous seven business cycles when 77 percent of the overall income growth went to wages.

Corporate profits, professionals' incomes, gains from investments and executive compensation - the kind that frequently comes in the form of stock options - are all surging, supporting healthy gains in the economy. "Profit has roughly doubled in the last year on revenue growth of about 40 percent....The top-line growth was very satisfying. There's been very strong growth in the amount left for compensation of the owners and for profits." (See New York Times article.)

To simplify things a bit: due to workers' hard work, productivity has surged, but instead of passing along to workers the fruits of their labor, those at the top are just hanging onto it, don't pay any taxes on it, and spend just enough to prop up the economy. The worker then takes on a second job to get ahead, making even more money for, you guessed it, the folks at the top. The average income, both for the worker working two jobs and those reaping the benefits of all that hard work, just keeps going up, but that's all that stands between what we have now and a major recession.

So what happens when you just can't keep that up any more? When you have to step off the treadmill because you can't work any harder, and you can't work any more hours? Or because little things like sleep and family time just keep getting in the way? What happens to those who simply can't work any more hours, because of their age, their child or elder care obligations, their physical health, or even their transportation options? Will they just starve, become homeless, or die from denied access to health care?

Or will there be a significant societal upheaval first? As Jonathan Tasini comments, "Most of us would find this lopsided economic arrangement obscene just by its sheer unfairness: No matter how hard you work, you won’t get a fair return on your labor. Beyond the unfairness, it also tears at the country’s social fabric because an economic system cannot endure if it is perceived to be unfair and fails to deliver a rising standard of living." (See TomPaine.com article.)

And just why is it that so many politicians who care about family values are missing the impact that this economic development has on families? Let's assume that in a 24-hour day, that working 8 hours a day is standard, and that there is only so much time that most humans can subtract from 8 hours of sleep and still function. That leaves 8 hours in the day for everything else, including time with one's family. When a second job cuts into that time, that's directly subtracted from family time.

Yet those who bemoan the decline of the family and the erosion of moral values don't seem to be making that connection: how are parents supposed to pass along values to children they never see? How are couples supposed to avoid divorce when they have no time to maintain their marriages? As one psychologist warns, unconventional work schedules can "undermine the stability of marriages, increase the amount of housework to be done, reduce family cohesiveness, and require elaborate child-care arrangements." (See Christian Science Monitor article.)

It's no longer "those who work hard can get ahead," it's "those who work long hours might get ahead slightly." But at what cost?


More Information:

Workplace Fairness: Short-Changed
Profits Before People: the income gap
Nobody Home: work and family

Comments: Post a Comment
Tuesday, July 12, 2005
Show Me The Land of the Slackers
It's official: I come from the land of the slackers. My home state of Missouri has been crowned #1 in slacking at work in a recent survey, with a whopping average of 3 hours and 12 minutes a day spent on non-work-related tasks. What's the number one time-waster? The survey says it's "personal Internet use," with 44% of participants clicking on that response. It's a good thing it's part of my job to be on the Internet all day long, surveying the latest and greatest workplace trends and studies (like this one, of course.)

Ever on the lookout to pinpoint anything standing in the way of automatonic productivity, there are those in the business community who are quite eager to learn what workers are doing all day long when they're not devoting every last fiber of their being to their employers. Hence, a survey was born to glean what workers are really doing when they appear to be preparing reports, making their boss look good, or otherwise working productively. (See Associated Press article.)

You might expect a website like Salary.com to sponsor this kind of survey: the site bills itself as "one of the most widely recognized destinations for those seeking reliable information about employee pay levels and compensation-related best practices, trends, and policies." (See Salary.com About Us.) However, there's another firm with an interest in the results, and not because of worker productivity, but indeed quite the opposite: America Online I'm sure they're not too disappointed to learn that so much of the slack time is spent on personal Internet usage, no sirree.

Of course, the survey results might also be skewed by the fact that the survey was posted on AOL's Find a Job website and Salary.com's Salary Wizard. Is it so surprising that when you have a disgruntled employee looking for a new job -- who just happens to already be conducting personal business on the Internet -- takes part in this kind of survey, that the results turned out the way they did?

Some of the other prime time-wasters: while more than 44 percent of the 10,000# workers said the primary way they waste time at work is personal Internet use, like reading e-mail, instant messages, playing interactive games (and responding to online polls.), the second most popular was socializing with co-workers (23%). Other excuses included conducting personal business, spacing out, running errands and making personal phone calls. What surprised me about the results (aside from the Missouri = slacker correlation) was that employers already expect employees to waste at least an hour a day already, according to Salary.com's survey of HR managers. (See CNN/Money article.) However, workers nationally are taking twice as much time as their employers expect, 2.09 hours of wasted time on average, which costs companies an estimated $759 billion a year.

Before you go feeling too sorry for employers who aren't getting their money's worth, you should know that the same respondents who confessed to all that slacking, said the number one reason for doing so was "not enough work to do." The second reason was justification for the self-help remedy employed for "I'm underpaid for the work I do. Yet another top reason is also something employers should take a look at: not enough evening and weekend time. Given how the American workweek, already longer than that of most industrialized nations, keeps expanding, this shows that all that extra time spent at the office isn't necessarily benefiting the employer all that much.

But as a Missourian, I'm relieved didn't have to wait long for someone to avenge our state's honor. Governor Matt Blunt had this to say: "Nobody can match the work ethic of Missourians. This survey, which our busiest citizens did not want to waste their time on, cannot undermine decades of experience. Missouri workers are among the most productive in the world." (See Statement from Governor Matt Blunt.)

If you're not too busy to take the survey, it's still available at Salary.com. Go ahead and take it, unless you're from Missouri, in which case, it's time to "show me" that Midwestern work ethic by getting off the computer.

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Monday, July 11, 2005
When Trickle-Down Becomes a Drought
A recent New York Times column reported what shouldn't really be a surprise to those paying attention to workplace economics: "tax cuts for the wealthy made no sense as a policy for stimulating new jobs. " The idea that tax cuts will cause money to flow downwards from the wealthy who will create jobs as a result, to those working in those jobs, is as bankrupt as the people still having to wait for that trickle. Yet the Administration still clings to the notion that recovery is around the bend.

Robert H. Frank, an economist at the Johnson Graduate School of Management at Cornell University, who writes the "Economic Scene" column for the New York Times each month, decided to take on the principle that tax cuts will stimulate jobs:

The president portrayed his tax cuts as the linchpin of his economic stimulus package. He argued that because most new jobs are created by small businesses, tax cuts to the owners of those businesses would stimulate robust employment growth. His policy thus rests implicitly on the premise that if business owners could afford to hire additional workers, they would.

(See New York Times article.) So there's the premise: basic trickle-down economics, or supply-side economics, as it has been known since the Reagan Administration. The first President Bush at one point called it "voodoo economics," but his son is almost certainly under its spell.

But is it working? I'm no economics expert -- in fact, I think economics was my worst grade in college. But someone who is an expert, Frank, says it violates a very basic economic principle -- one that sounds familiar, even to someone like myself who didn't learn all that I should have about economics way back when:


The basic hiring criterion, found in every introductory textbook (including those written by the president's own economic advisers), is straightforward: If the output of additional workers can be sold for at least enough to cover their salaries, they should be hired; otherwise not. If this criterion is met, hiring extra workers makes economic sense, no matter how poor a business owner might be. Conversely, if the criterion is not satisfied, hiring makes no economic sense, even for billionaire owners. The after-tax personal incomes of business owners are irrelevant for hiring decisions.
Aren't you glad that Congress and the President are working so hard to facilitate an economic policy that would be the wrong answer to a multiple choice question in Econ 101?


More Information:

Short-Changed: profits before people: the income gap
Economic Policy Institute: The Shape of Fiscal Stimulus: Spending vs. Tax Cuts
United for a Fair Economy: Trickle-Down Economics: Four Reasons Why It Just Doesn't Work

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Tuesday, July 05, 2005
Justice O'Connor To Retire: What Does it Mean for Workers?
Last Friday, U.S. Supreme Court Justice Sandra Day O'Connor turned an otherwise ho-hum holiday news weekend into a firestorm of analysis and strategizing, when she announced her retirement from the Court. Until a new justice is seated on the Court, Americans can expect a barrage of information and speculation about a new candidate and his or her potential impact on the Court, as compared to Justice O'Connor. It is also likely that we will see a partisan battle waged that's nearly equivalent to a presidential election in nature, with so much at stake for everyone involved in the debate. Why should workers care about all of this? An analysis of some of Justice O'Connor's decisions holds the key.

Until Friday, the speculation about retiring Supreme Court justices had focused primarily on Chief Justice William Rehnquist. At the beginning of last week, when the Court had concluded its term for the year, many expected the Chief Justice to announce his retirement. (See Los Angeles Times article.) Chief Justice Rehnquist missed several months of the term while undergoing treatment for thyroid cancer, and some believed his health status would force him to retire. Chief Justice Rehnquist has the last laugh, for now, as the attention has been deflected to his soon-to-be former colleague, fellow Arizonian O'Connor (who he briefly dated while at Stanford Law School). (See Washington Post article.)

O'Connor's statement was simple and brief:

Dear President Bush:

This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor. It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.

Sincerely,

Sandra Day O'Connor
(See SCOTUS Blog posting of July 1.) The news instantly jolted Washington into awareness. Suddenly all the groups who had begun to cautiously relax when the logical point for a Rehnquist resignation announcement had seemingly passed were gearing up for a different battle than expected. (See Bloomberg article.)

The rest of the summer is likely to be filled with news of the confirmation, and the battle that is likely to ensue no matter who is selected to fill O'Connor's spot. But is this a battle mostly for inside-the-Beltway insiders? After all, the American people do not get to vote on who the next justice will be: that task is left to the U.S. Senate. Given the intense battles over judicial nominations that we've already seen in the Senate this past year alone, a cynic might question whether there are any Senators left with open minds, or whether the reaction to any nominee will be merely a partisan, knee-jerk response, designed to either support or embarrass the President, depending on which side you're on.

Whatever happens, its clear that workers have something at stake. Some have characterized O'Connor's decision-making philosophy as "pro-business," and they're not wrong: she voted to cut punitive damages, curb class-action lawsuits and enforce arbitration agreements against consumers. (See Bloomberg article.) She is considered so business-friendly, in fact, that so-called "business conservatives" (as opposed to "social conservatives" whose top priorities include abortion and gay marriage) fear that her replacement might not be as good for business interests.

Nonetheless, the first woman appointed to the Court has shown considerable sensitivity to the interests of women and minorities, which often reach the court in the guise of discrimination cases. Here's a flavor of some of her more notable employment decisions:

A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality.
Harris v. Forklift Sys. (92-1168), 510 U.S. 17 (1993).

Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.” Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) (citations omitted.)

If recipients were permitted to retaliate freely, individuals who witness discrimination would be loathe to report it, and all manner of Title IX violations might go unremedied as a result. Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished. Indeed, if retaliation were not prohibited, Title IX’s enforcement scheme would unravel.

Jackson v. Birmingham Board of Educ. (02-1672) 309 F.3d 1333 (2005) (citations omitted)

For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity....Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.

Grutter v. Bollinger (02-241) 539 U.S. 309 (2003). , affirmed.

She has written several other decisions under Title IX that have addressed harassment in a school setting (See Davis v. Monroe County Board of Educ. (1999) and Gebser v. Lago Vista, 524 U.S. 274 (1998)), and has been part of other key 5-4 majorities protecting civil rights. (See, e.g., Tennessee v. Lane (2004) (disability access to courts).

Her jurisprudence is not completely exemplary on all forms of discrimination: when it comes to age, in particular, her opinions leave some to be desired.

Moreover, the Wirtz Report correctly concluded that–unlike the classifications protected by Title VII–there often is a correlation between an individual’s age and her ability to perform a job. That is to be expected, for “physical ability generally declines with age,” and in some cases, so does mental capacity. Perhaps more importantly, advances in technology and increasing access to formal education often leave older workers at a competitive disadvantage vis-a-vis younger workers.

Smith v. City of Jackson (03-1160) (2005) (concurring in the judgment, citations omitted). See also Hazen Paper v. Biggens, (91-1600), 507 U.S. 604 (1993).

When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is....The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee--that he indeed is "close to vesting."

However, as many are now arguing, we could do a lot worse than the judicial pragmatism Justice O'Connor exemplified. (See, for example, Alliance for Justice statement.) We can only hope that whoever is appointed will be in her mold, and not further roll back the rights of disadvantaged workers.


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