Workplace Fairness: today's workplace

Zimmer on Ricci

Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court�s Ricci decision from yesterday.

GOP Won't Support a Public Option

Republicans' primary objection is the Democrats' push for a public health insurance plan that would serve as an alternative to private coverage. Republicans say such a plan would cause the private insurance market to unravel.

HCAN's Health Care '09 Rally Was a Huge Success

According to Jason Rosenbaum from HCAN's blog, "10,000 people from just about every state in the Union came to DC."

Business Professors: Employee Free Choice Act Good for the Economy

Two top business experts have taken to the pages of Business Week to make the case for the Employee Free Choice Act.

Congress Hears Demands for Health Care Reform in Town Hall Meetings

Members of Congress met in town hall sessions Thursday with constituents who were on Capitol Hill to rally and demand health care reform. Read dispatches from some of the meetings.

G8 Union Leaders Issue Urgent Call to Tackle Jobs Crisis

The global union movement is issuing an urgent call for the leaders of the Group of Eight nations to tackle the deepening jobs crisis at their summit meeting in L'Aquila, Italy, next month.

How Productive Are You?

According to Gallup each of us personally admits to wasting just under an hour a day. But when asked about our coworkers, the number rises to an hour and a half.

New Supreme Court Age Discrimination Decision Will Be Gone in a Flash

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash.

Small Business Owners and Support for the Public Option

Republican opponents of serious health reform like Senator Mitch McConnell love to claim that a public option would hurt small business owners. On the ground, though, the picture is more complex and, if anything, the opposite.

The REAL Bipartisan Consensus on Health Care

Just imagine what it would be like if we had political leadership in our country that worked in harmony with the people, instead of working against them!

Workers' Rights

In looking back on growing up, I always remember 1957 and 1958 at "the two good years," They were the only years my working class redneck family ever caught a real break in their working lives, and that break came because of organized labor.

Bad Distribution of Income Led to Great Depression: History Repeats in 2008

John Kenneth Galbraith wrote The Great Crash 1929, an economic history focused in part on the men of the market who brought on the crash, in graceful and snarky prose. In his last chapter, he tells us of five major weaknesses in the real economy that made it possible for the disaster to destroy a generation. At the top of his list is the badly unequal distribution of wealth.

Michael Steele and the Demise of Working America

Back in April 2009, GOP chairman Michael Steele appeared as a guest on a republican-oriented talk radio show. A caller to the program voiced his opinion and stated he did not believe the U.S. is in a state of economic crisis. Steele laughed in agreement and claimed that "[t]he malls are just as packed on Saturday."

For Dad: Healthy Families Act Is Perfect Gift

For Father's Day, we need to ensure that Dads can stay home from work when they, their children, spouse, or parents are ill - without putting the family's economic self-sufficiency at risk. That's why, for Father's Day, we need to pass the Healthy Families Act (HFA).

Whaddya Gonna Do?

Unlike a certain organized crime family on TV, most of us do have plenty that we can do. But we are so mired in the fog of our jobs that we fail to see it.

COBRA's High Cost Bites Into Jobless Safety Net

As unemployment rises more women are turning to COBRA for health insurance coverage, but discovering it's either too expensive or not available. Women who shop for individual insurance often face higher rates due to "gender rating," a recent study found.

Union Busting Ended My Love Affair with a Beer

This past weekend when I discovered that Yuengling had illegally busted their union, I was emotionally devastated.

Now Labeled a Pandemic, Swine Flu Poses Threat to Health Care Workers

Don't forget to check out the AFL-CIO's pandemic flu site, which includes vital resources for health care workers, firefighters, educators and more.

Minimum Wage Raises Us All

A new research brief from Kai Filion at the Economic Policy Institute highlights the stimulative impact of raising the minimum wage.

Lumpers and Splitters

Lumpers try to build the biggest possible coalition to get the policies they want while splitters use wedge issues to divide and conquer the electorate.

Why Does Chamber of Commerce Favor Arbitration for Workplace Rape Victims, But Oppose It for Union Workers?

To union activists, what's especially galling is how fervently businesses embrace arbitration when it allows them to avoid being held accountable for negligence towards employees or the defrauding of consumers.

Washington Post Makes Up Competition In the Insurance Market

It's amazing how far the conservative Washington Post editorial board will go to deny the fact.

Newsworthy But Not Sexy

Unfortunately, as I see it, the press is too afraid of losing what's left of its own industry to use their platform to leverage change.

No More Delay on Paid Sick Days in NYC

Continued anxiety over swine flu is a poignant reminder that only some New York City residents can afford to stay home if they or their children fall ill.

Small Biz Group Says Health Care Reform Could Save Them $855 Billion

Health care reform that requires employers to provide health care coverage for workers or pay into a fund - known as pay or play - could save small businesses as much as $855 billion during the next few years.

Clean Energy Company Treats Workers Like Dirt

The vast majority of Covanta's U.S. plants are nonunion. And the company, which is seeking to develop new projects in Canada, China, Ireland, the U.K. and the Netherlands, intends to keep it that way.

Wal-Mart Jobs vs. Auto Jobs

The debate I took part in yesterday-well, it's hard to call it a debate when your opponent is not operating with a full deck of cards�meaning facts-on CNBC really illustrates, in the most starkest terms, the two visions of America.

GM, Healthcare, Trade, It's All Related

GM, and the rest of the U.S.-based auto industry, arrives at this crisis because of at least four problems.

FedEx Threatens to "Destroy" Members of Congress

When asked about FedEx's multi-million dollar ad campaign against the legislation that is reported to launch on Tuesday, June 9, top FedEx flack Maury Lane told U.S. News and World Report in a story posted in The White House Bulletin, "I'm going to try to destroy them."

Trying Times Call for Healthy Families Act

While many of us are working harder than ever to keep pace under the current economic pressure, workplace duties are not the only duties we have.

Worst Jobs, Part 2

Having written a column entitled Workplace911 and Working Wounded for fourteen years, as you can imagine, I hear from a lot of people with terrible jobs. Last time I addressed a few of my favorites, this week the worsts continue:

As Chamber Lobbies, Its Paid Expert Says: No Unions, No Minimum Wage Law Needed

This week, the Chamber of Commerce launches its most forceful lobbying effort yet to kill the Employee Free Choice Act and to end talk of compromise on Capitol Hill.

The Fall of General Motors and the Three Paths to the Middle Class

GM may be a shadow of it's former self for a long time to come, but if we can accomplish the overhaul of labor law and make the substantial public investment in education we need, the nation's middle class doesn't have to fail along with it.

Employee Free Choice Act: A Signature Battle for Our Future

At a session this morning on the Employee Free Choice Act, some of the people most involved in the fight to pass the bill discussed why we need it and how we're going to make it happen.

$82 Million and United for Health Care

Progressive groups are poised to spend more than $82 million to support President Obama's goal of achieving quality, affordable health care for all this year...

Worst Jobs, Part 1

We all get "stuck" once and a while at work. It's inevitable. But this blog is about the very worst jobs out there, at least according to my email.

Judge Sonia Sotomayor Confirmation: What You Can Do

Here are four things you can do right now to ensure an expedient and fair confirmation process and engage others in support of Sotomayor:

Labor Secretary Reverses Bush's Attack on Farmworker Labor Laws

Labor Secretary Hilda Solis will suspend the midnight Bush Administration changes to weaken labor protections in the nation's agricultural guestworker program.

Is Sotomayor a Reverse Racist?: Testing the Limits of Tests

Supreme Court nominee Judge Sonia Sotomayor is taking heat for being a member of the three-judge panel in Ricci v. DeStefano, a case filed by seventeen white firefighters and one Latino firefighter who were the top-scorers on a multiple-choice firefighter exam.

The Case Against the Case Against the Sonia Sotomayor Nomination

Sonia Sotomayor's performance as a federal judge had already been criticized in some quarters even before President Barack Obama on Tuesday nominated her to the Supreme Court.

AT&T v. Hulteen: A Bad Decision that Did Not Have to Be

In AT&T v. Hulteen Justice Souter authored the 7-2 majority opinion holding that AT&T's "reliance" interest in perpetuating past pregnancy discrimination trumps the right of Noreen Hulteen and her fellow plaintiffs to enjoy the same level of retirement benefits as other employees with the same longevity of service to the company.

Towards a "New Normal" in the American Workplace - A Public Policy Platform on Flexible Work Arrangements

On the heels of First Lady Michelle Obama's challenge to find ways to encourage employers to provide more flexibility to employees, Workplace Flexibility 2010, a Georgetown Law-based think tank, has released a new report outlining a comprehensive set of policy solutions to expand Americans' access to flexible work arrangements (FWAs) such as compressed workweeks, predictable schedules, and telework.

An Agreement That Isn't Good for Anyone: The Panama Trade Promotion Agreement

People and planet should come before profits, but the proposed Panama trade plan would mean greed rules.

Don't Cut Legal Corners When Starting Your Business

When you're starting a new business from scratch, there are a few things to keep in mind that will help you create the foundation for a good workplace...

Right-to-Work and At-Will Employment

The possibility of your job being terminated without cause has always been very unsettling to me. I have always felt that employers have a disproportionate amount of power over employees in this respect.

President Reiterates Call for Passage of Employee Free Choice Act; Says Compromise May Be Needed

President Obama knows the value of unions to the American economy and to American workers. He has forcefully spoken in support of workers organizing to improve their lives and staunchly supported the Employee Free Choice Act.

Happy "Recessionary" Mother's Day

Adecco Group North America's latest American Workplace Insights Survey indicates the economy is changing life at home and work, leaving moms feeling the most stress.

Let Go, A First Person Account

Recently I took a big financial hit when I was let go from a job I'd had for twelve years. I'd like to talk about it this week in a very personal way.

For Mother's Day, Let's End Pregnancy Discrimination

Forget the fancy brunches, chocolates and flowers for a moment. Mother�s Day is the perfect time to call attention to a persistent workplace issue: pregnancy discrimination.

Would You Like a Side of Swine Flu with Your Order?

Surviving the Four Kinds of People at Work

10 Steps to Ending Forced Arbitration

For those who want to help make sure the Arbitration Fairness Act is passed, the Fair Arbitration Now Coalition has set up an easy-to-use website. The site not only calculates who your member of Congress is, but places the phone call, so you don't even have to dial the number or worry if you're calling the wrong office.

Corporations Only Want Arbitration Fairness for Themselves, Not Workers

Most people don�t realize that forced arbitration is taking away their rights. Forced arbitration strips our most basic rights and makes many employee and consumer protections unenforceable.

Third Circuit Sends Wake Up Call to Employers About Discriminatory Hiring Practices

In the spirit of National Equal Pay Day on Tuesday, I wanted to share the important gender discrimination case of Donlin v. Phillips Lighting North America Corp. decided by the Third Circuit last week...

Signing a Card to Join a Group? What a Novel Idea

If you have any interest in politics you have heard by now the big news about Senator Arlen Specter switching his party affiliation from Republican to Democrat. From what I can gather, the actual process to switch parties merely requires some paperwork. That�s it!

Women of the World Unite, All We Have to Win Is 22 Cents

Today is Pay Equity Day. The National Committee on Pay Equity came up with the idea in the mid-1990s to acknowledge a day in April to remind us that it takes women a full year PLUS an extra four months of earning a salary (or a total of 16 months) to equal the amount male colleagues net in just one calendar year (12 months). That is what it means when you hear the statistic that women who work full time earn about 78 cents for every dollar men earn (See U.S. Census Bureau and the Bureau of Labor Statistics). Minority women are subject to a far greater wage gap.

Is It a Job Hunt or A Spam Campaign?

I think it�s a given that most people don�t even glance at spam before deleting it. But are there times when this accepted practice can come back to bite us? What if it�s an e-mail you sent that�s being classified as spam? And what if, heaven forbid, it�s a potential employer trashing your resume as spam? Well, maybe � probably, actually � it�s a sign that your approach to the job search could stand to be tweaked.

Are Fox and American Idol Guilty of Age Discrimination?

How come she gets to try out and she's 47? Not so in the U.S.A.

California's Salaried Workers Score a Victory

On Thursday, March 19, 2009, the Ninth Circuit Court of Appeals reversed a District Court's order and reinstated a class action lawsuit against FedEx Kinko's Office and Print ("FedEx") seeking unpaid overtime and related penalties on behalf of a class of hundreds of the company's Center Managers. This short three page decision carries monumental implications which extend far beyond the class members of this single action to reinforce the rights of all California employees who are paid on a "salaried" basis and denied compensation for their overtime work. The case filed in May 2005 alleged that Center Managers at FedEx's California Stores were improperly classified as "exempt" from overtime pay under California law on the basis that these employees met what is commonly referred to as the "managerial" exemption. Under California law, exemptions from overtime pay are narrowly construed and the employer has the burden to prove the exemption applies. For the managerial exemption to apply, the employer must prove, among other things, that the employees spend more than one-half of their work time on exempt duties and "customarily and regularly" exercise discretion and independent judgment under Cal. Labor Code § 515. The case was certified as a class action in 2006. In May 2007, FedEx moved for summary judgment asking the District Court to conclude that the entire class was exempt from overtime under California's "executive" exemption. The District Court agreed and granted Defendant's motion. The Plaintiff appealed to the Ninth Circuit seeking to have that decision overturned. The Ninth Circuit reversed the District Court's decision holding that the class members testimony and expert witnesses raised triable issues regarding whether the Center Managers were primarily engaged in management duties. The decision is important as it reinforces the heavy burden employers must meet in order to show that their employees are spending at least half of their time on exempt tasks - merely referring to those employees as "managers" is not enough. By reversing the District Court's finding for FedEx, the Ninth Circuit sent a clear message of the Court's intention to require employers who seek to circumvent overtime laws by paying their employees fixed salaries to provide substantial evidence to support these decisions - rather than merely referring to those employees as "managers". The fact that the decision was issued a mere eight days after the hearing is somewhat unusual and bodes well for the rights of all salaried employees throughout the state. In light of the ruling, the parties will be proceeding toward trial. If successful there, hundreds of FedEx Center Managers could recover compensation for years of lost wages. Employees with similar claims would be well advised to strike while the iron is hot in seeking to recover owed wages pursuant to this ruling. If you are currently working in the state of California and are not receiving overtime pay (or if you are an attorney currently representing such an employee), please visit the Scott Cole & Associates, APC website to obtain further information regarding this lawsuit.

Three Concepts That Need to Be 'Laid Off'

Memo to CEOs: Your Employees Just Aren't That Into You

Want to Commit Career Suicide? Here's How

Sicko

Here is an admission that I�ve never made in the decade that I�ve been writing professionally�I cried watching a DVD this weekend. It wasn�t a chick flick. Or a horror movie. Well maybe not a traditional horror movie, but it was still mighty scary. The movie was �Sicko.� Yep, that crazy Michael Moore�s movie that is unfortunately as relevant as when it first came out. Maybe more so. What does this have to do with a workplace blog? Since most of us get our health insurance from the same place�our job�Sicko has everything to do with work.

Your Workplace: Puzzle or Mystery?

Is the challenge you�re currently facing at work a puzzle or mystery?

Peaceful Revolution: Wal-Mart Third Attempt to Derail Largest Sex Discrimination Class Action

Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it's almost impossible. The questions presented are:

In a "mixed-motive" age discrimination case -- where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
What kind of evidence needs to be presented -- direct or circumstantial -- to prove a "mixed-motive" case?
Does the discriminatory reason need to be a "substantial reason" or "a motivating reason" for the employee to prevail?
Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. ("CRA"); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

In the 1989 Price Waterhouse decision, the plaintiff Ann Hopkins presented direct evidence (as opposed to circumstantial evidence) that she was discriminated against when she was denied a promotion to partnership. The defendant basically said that even though it may have discriminated, it would have reached the same result anyway in denying Ms. Hopkins her promotion.

In it's fractured decision, the Supreme Court came up with a new way of proving discrimination in what it called a "mixed-motive" case. Simply said, this new method of proof set forth a complicated and confusing burden shifting framework.

After the Price Waterhouse decision, courts began allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor.

In other words, the unintended consequence of the decision was that employers were getting off the hook in the face of direct evidence of discrimination.

As a result, Congress overturned that portion of Price Waterhouse when it enacted the Civil Rights Act of 1991. In so doing, it specifically lowered the standards for employees in "mixed-motive" cases. Theoretically, the CRA makes it easier for employees to win these cases. Under the Act:

the employer is not absolved of liability in "mixed-motive cases" even if it proves it would have made the same decision anyway, but damages to the employee are restricted.

in order to take advantage of the mixed-motive theory and shift the burden to the defendant, the plaintiff must �demonstrate� that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice

The legislation was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully prove the illegal motivation. The issue of what kind of evidence was required was decided by the Supreme Court inDesert Palace, Inc. v.Costa in 2003. According to that decision, Congress intended the term "demonstrate" to mean that an employee could prove his or her case bydirect or circumstantial evidence. As the Court stated:

Title VII�s silence with respect to the type of evidence required in mixed-motive cases . . . suggests that we should not depart from the �[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.� ... That rule requires a plaintiff to prove his case �by a preponderance of the evidence,� . . . by using �direct or circumstantial evidence,� Postal Service Bd. of Governors v. Aikens,460 U.S. 711, 714, n. 3 (1983).

You would think that would settle it but there's always a wrinkle, and the wrinkle for Mr. Gross is that the CRA applies to Title VII and does not specifically mention the Age Discrimination in Employment Act . As a result, according to FBL Financial, neither the CRA nor the Desert Palace decision apply to Gross' case. Paul Secunda from the Marquette University Law School Faculty Blog points out that conservative justices like Scalia, Thomas, Roberts and Alito may jump on this argument.

One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

The flip side is that disparate treatment claims under the Age Discrimination in Employment Act (which is what this is) are always interpreted identically to claims brought under Title VII (which prohibits discrimination because of race, color, religion, sex, or national origin) on issues like the ones before the Court. Gross' argument is that there would be no reason not to interpret the ADEA consistently with Title VII and no reason not to do so in this case. That is in fact what many courts have done. (ie the Sixth Circuit Court of Appeals in Blair v. Henry Filters) If anyone wants more, better, or different analysis of the Gross case, there are lots good pieces on it (SCOTUSBLOG, Ross Runkel's Law Memo are two) Whatever the outcome, as a practical matter I don't think it will change the way employees and their lawyers go about proving age discrimination cases:

Plaintiffs are going to present all the evidence they have whether it's direct or circumstantial, or both.

Most of us who represent employees have never seen the benefit of getting a "mixed motive" instruction even when we have direct evidence of discrimination because it's too confusing to the jury.

It's just a much easier and better standard for employees in discrimination cases to have to prove by a preponderance of the evidence, whether direct or circumstantial, that age, race, sex, religion, national origin, or disability was a motivating factor in the adverse employment decision.

For sure, the decision will be interesting to Supreme Court observers to see how the justices line up on this one. Other than that, it's not very interesting at all, but since it's not often that an age discrimination cases hit the Supreme Court, it's got to be talked about even though I am the first to admit --it's mostly academic. Image: www.visitingdc.com Crossposted from Ellen Simon's blog Employee Rights Post. About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

Supreme Court Hears "Mixed-Motive" Age Discrimination Case

Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it's almost impossible.

The questions presented are: 1. In a "mixed-motive" age discrimination case -- where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway? 2. What kind of evidence needs to be presented -- direct or circumstantial -- to prove a "mixed-motive" case? 3. Does the discriminatory reason need to be a "substantial reason" or "a motivating reason" for the employee to prevail? 4. Which party bears the burden of proof? The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. ("CRA"); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent. In the 1989 Price Waterhouse decision, the plaintiff Ann Hopkins presented direct evidence (as opposed to circumstantial evidence) that she was discriminated against when she was denied a promotion to partnership. The defendant basically said that even though it may have discriminated, it would have reached the same result anyway in denying Ms. Hopkins her promotion. In it's fractured decision, the Supreme Court came up with a new way of proving discrimination in what it called a "mixed-motive" case. Simply said, this new method of proof set forth a complicated and confusing burden shifting framework. After the Price Waterhouse decision, courts began allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor. In other words, the unintended consequence of the decision was that employers were getting off the hook in the face of direct evidence of discrimination. As a result, Congress overturned that portion of Price Waterhouse when it enacted the Civil Rights Act of 1991. In so doing, it specifically lowered the standards for employees in "mixed-motive" cases. Theoretically, the CRA makes it easier for employees to win these cases. Under the Act: * the employer is not absolved of liability in "mixed-motive cases" even if it proves it would have made the same decision anyway, but damages to the employee are restricted. * in order to take advantage of the mixed-motive theory and shift the burden to the defendant, the plaintiff must �demonstrate� that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice The legislation was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully prove the illegal motivation. The issue of what kind of evidence was required was decided by the Supreme Court inDesert Palace, Inc. v.Costa in 2003. According to that decision, Congress intended the term "demonstrate" to mean that an employee could prove his or her case bydirect or circumstantial evidence. As the Court stated: Title VII�s silence with respect to the type of evidence required in mixed-motive cases . . . suggests that we should not depart from the �[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.� ... That rule requires a plaintiff to prove his case �by a preponderance of the evidence,� . . . by using �direct or circumstantial evidence,� Postal Service Bd. of Governors v. Aikens,460 U.S. 711, 714, n. 3 (1983). You would think that would settle it but there's always a wrinkle, and the wrinkle for Mr. Gross is that the CRA applies to Title VII and does not specifically mention the Age Discrimination in Employment Act . As a result, according to FBL Financial, neither the CRA nor the Desert Palace decision apply to Gross' case. Paul Secunda from the Marquette University Law School Faculty Blog points out that conservative justices like Scalia, Thomas, Roberts and Alito may jump on this argument. One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims. The flip side is that disparate treatment claims under the Age Discrimination in Employment Act (which is what this is) are always interpreted identically to claims brought under Title VII (which prohibits discrimination because of race, color, religion, sex, or national origin) on issues like the ones before the Court. Gross' argument is that there would be no reason not to interpret the ADEA consistently with Title VII and no reason not to do so in this case. That is in fact what many courts have done. (ie the Sixth Circuit Court of Appeals in Blair v. Henry Filters) If anyone wants more, better, or different analysis of the Gross case, there are lots good pieces on it (SCOTUSBLOG, Ross Runkel's Law Memo are two) Whatever the outcome, as a practical matter I don't think it will change the way employees and their lawyers go about proving age discrimination cases: * Plaintiffs are going to present all the evidence they have whether it's direct or circumstantial, or both. * Most of us who represent employees have never seen the benefit of getting a "mixed motive" instruction even when we have direct evidence of discrimination because it's too confusing to the jury. * It's just a much easier and better standard for employees in discrimination cases to have to prove by a preponderance of the evidence, whether direct or circumstantial, that age, race, sex, religion, national origin, or disability was a motivating factor in the adverse employment decision. For sure, the decision will be interesting to Supreme Court observers to see how the justices line up on this one. Other than that, it's not very interesting at all, but since it's not often that an age discrimination cases hit the Supreme Court, it's got to be talked about even though I am the first to admit --it's mostly academic. Image: www.visitingdc.com Crossposted from Ellen Simon's blog Employee Rights Post. About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

Letter to the President Elect -- Our Workplace and Asian Pacific Americans

Dear President-Elect Obama, Congratulations on the start of a new administration. As one of a handful of pan-Asian legal advocates in the nation focused on the civil and legal rights of Asian Pacific Americans, The Asian Pacific American Legal Resource Center hopes that your administration is mindful of issues that are specific to Asian Pacific Americans (APAs).

President signs Lilly Ledbetter Fair Pay Restoration Act: government now respects women and workers

In a ceremony rich with symbolism, President Barack Obama signed into law The Lilly Ledbetter Fair Pay Restoration Act on January 29, 2009. In front of a cheering throng who applauded enthusiastically when Ledbetter was introduced, the President said, �This is a wonderful day. It is fitting that the very first bill that I sign is The Lilly Ledbetter Fair Pay Restoration Act.� The president described the Act as, �upholding one of this nation's founding principles that we are all created equal and we each deserve a chance to pursue our own version of happiness.�

Rising Hope for Women

Talk about the audacity of hope - who could have imagined that barely a week into office, President Obama would sign the Lilly Ledbetter Fair Pay Act and that the Supreme Court would unanimously rule that employees who report discriminatory treatment during an internal investigation are protected from retaliation by Title VII of the Civil Rights Act in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee? But will the winds of change continue to blow when the Supreme Court considers AT&T v. Hulteen, the last case heard in 2008?

Solis Appointment Moves Out of Senate Committee

Finally, good news, as reported in The Nation: The Senate Health, Education, Labor and Pensions Committee, where the [nomination of California Congresswoman Hilda] Solis had been stalled, voted overwhelmingly on Wednesday evening to recommend confirmation of the congresswoman. Solis, a labor ally who whose confirmation process was delayed by conservative Republicans who objected to her union ties and progressive politics, got the committee O.K. on a voice vote. Only two Republican members of the committee were heard to object. A full Senate vote is likely this week, and Republican opposition appears to be crumbling.

Just Say "No" to Layoffs--CEO Patriot Pledge

These are M.A.D. economic times. That's M.A.D. as in Mutually Assured Destruction, the old Cold War strategy where no one would be left standing after that first nuke was launched. Economic experts, who agree on little else, agree on this: if our current vicious cycle of �layoffs-driving-down-purchasing-which-increases-layoffs� continues, no one will be left standing.

Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending

The economic stimulus bill passed by Congress on February 12, 2009 includes robust whistleblower protections to ensure that employees of private contractors and state and local governments can disclose waste, fraud, gross mismanagement or a violation of law related to stimulus funds. This article summarizes the key provisions of Senator McCaskill's (D-Mo.) whistleblower protection amendment to the stimulus bill (�McCaskill Amendment�).

Teen Sexual Harassment on the Job -- NOW on PBS Investigation Airs February 20

I always talk about the stories I'm working on with people I meet along the way: cab drivers, waitresses, hotel maids, TSA agents, family and girlfriends. Their response typically ranges from casually interested to intensely curious. But the response to my latest NOW report--about sexual harassment of teenage girls in the workplace--has been like no other. Nearly every woman I've spoken to instantly replies "that happened to me" or "that happened to a friend of mine." While sexual harassment is something many American women experience in the workplace, it goes mostly unreported.

New Whistleblower Protection for Consumer Product Safety Issues

On August 14, 2008, the Consumer Product Safety Improvement Act became law. Of interest to employees and their advocates is a new whistleblower provision. The Act creates a legal protection for employees who raise concerns about the safety of consumer products.

Voters rebel at 'fat cat' bailouts

Do not bail out the fat cats. Voters made that perfectly clear, and their re-election-obsessed congressional representatives took heed. Delaying a Wall Street bailout wasn't wise for the international economy, but chalk up points for the worker bees. They finally got someone's attention in Washington! Nobody bails me out if I make bad financial decisions. And, while we're at it: No more multi-million-dollar parachutes for executives who mismanage other people's money.

Help Wanted: A Secretary of Labor Who Cares About Workers

We need a Labor Secretary in the mold of Francis Perkins, whose top priority was to help the working man. In recent days, colleagues have asked me to write about the near-collapse of the economy. Although I must admit that I am still not completely clear about what all has occurred and has not occurred, I am more convinced than ever that we need a Secretary of Labor who cares about workers and who will at least try to address issues faced by workers. Unfortunately for the nation, we have a Secretary of Labor who is Missing in Action.

How Small Business Could be Reshaped After Today's Election

Today's election will be historic, no matter the outcome. Barack Obama looks poised to win fairly big or really big; and that the Democrats will make gains in both the House and Senate � although the Senate �magic 60″ number is still a far cry as of this writing. How would this scenario affect small businesses?

Employee Free Choice Act: Good for Everyone

With the election of a new president, there naturally is a lot of talk about what legislation we might expect from the Obama administration and substantial Democratic majority in Congress. High on everyone's list is the Employee Free Choice Act -- a bill that would make it easier for workers to form and join unions. But perhaps you are not convinced that unions are the solution to making things better for workers, either in your workplace or any workplace. Guess what: you should support the Employee Free Choice Act anyway, and here's why:

Obama and the Future of Labor and Employment Law

With the historic election of Barack Obama as the 44th President of the United States and the substantial gains for Democrats in the House and Senate, there is almost certainty that there will be significant labor and employment law reform in the near future. Not being a shrinking violet by any means, I would like to add my two cents about what such reform should be about. President-elect Obama should first focus on the following four broad areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, employee benefit rights, and public employee rights.

Hard Knocks in the Workplace

Many federal laws protect the rights of working men and women, but recent Supreme Court decisions have made some of these laws a dead letter, and employers know they can violate them with virtual impunity. As a result, today's workers are defenseless against certain blatant violations of their rights.

What Will First Lady Michelle Obama's Work-Life Balance Efforts Look Like?

We have heard for some time that Michelle Obama�s pet concerns on the campaign trail, which she hoped to be able to continue while in the White House � and will indeed be able to after last week�s dramatic election finish for her husband, President-Elect Barack � are helping families create a healthy work/life balance and easing the struggles for military families. It�s no wonder the former is an issue that�s close to Mrs. Obama�s heart.

Defense Attorneys Make Excuses, But the Outcome is the Same

When attending the American Constitution Society's panel following the release of Schwab and Clermont's seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Workplace Fairness: Hot or Not?

It is the oldest adage in advertising: sex sells. But when does selling products with sex go too far? In late August, LUSH Cosmetics led a protest against environmentally damaging product packaging by encouraging shoppers to go �naked� by purchasing products free of packaging. While this is a cute concept for a company whose products traditionally lack the common saran wrap sequence seen with other bath and beauty wares � the company also asked their employees to get naked to promote the cause.

Barriers to Justice: Examining Equal Pay for Equal Work (Part I)

TESTIMONY OF CYRUS MEHRI BEFORE THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE: I am asked today to provide a practitioner's perspective on employment discrimination claims in our federal courts, including pay discrimination claims. Let me say at the outset, that as a practitioner, I find Lilly Ledbetter's story to be a compelling example of what is wrong with the system. In her case, the federal courts reached a decision that is entirely out of touch with the American workplace � requiring that she file an EEOC charge based on what she did not know, nor could have reasonably known, at that time regarding pay inequity. Her hard-fought trial victory vanished, and the factual findings of the jurors who heard her evidence firsthand counted for nothing. Unfortunately, Ms. Ledbetter's experience in the federal courts is far from isolated. It typifies the uphill battle that American workers face.

Barriers to Justice: Examining Equal Pay for Equal Work (Part II)

BATTLING DISCRIMINATION IN THE WORKPLACE: THE LONG HARD JOURNEY FOR WORKERS: During the last 15 years, I have interviewed hundreds of employees in dozens of companies. Invariably, they contact counsel as a last resort after exhausting all internal channels within a company. The vast majority of employees remain extraordinarily loyal to their companies despite significant discrimination in the workplace. Many victims of discrimination do not want to believe they are discriminated against and only reach this sad conclusion reluctantly.

Developments in Workplace Protections for LGBT Employees

A significant new frontier in the employment discrimination field is finding ways to protect employees who are fired, denied a promotion, or harassed just for being lesbian, gay, bisexual, or transgender (LGBT). Already, 12 states and the District of Columbia prohibit discrimination based on sexual orientation as well as gender identity and expression. (Another eight states have legal protections only for sexual orientation discrimination.) Those laws protect not only lesbian, gay, and bisexual employees, but also transgender employees�those whose internal sense of themselves as male or female (their �gender identity�) and/or the way they express that gender identity through their appearance, clothing, or behavior (their �gender expression�) differs from the anatomical sex they were designated at birth.

Working Harder for Less Mocks the American Dream

Worsening unemployment. Millions of home foreclosures. Two-income households unable to support families. America's workers are facing economic disasters so severe, even the national media is paying attention. But the current crisis has long roots. America's working families have been suffering through what is now a generation-long stagnation of wages and rising economic insecurity. Steps must be taken immediately to shore up our flagging economy and provide much-needed assistance to working families.

The Next New Deal

In 1932, at the middle of the Great Depression, President Franklin Roosevelt swept into office with the promise of bold economic reforms. Policies implemented in The New Deal stabilized the banking system, cut skyrocketing unemployment, paid farmers and workers fair wages, and created a foundation for a generation of economic growth. A few years later, World War II strengthened America's economy, resulting in twenty years of prosperity. Sounds like fantasy-land, right?

Sharing Labor Day with Transgender Workers

In 2007, hundreds of gay-rights organizations from across the country signed a statement opposing the first gay-rights bill ever approved by a house of Congress. Why? Because the bill, the Employment Non-Discrimination Act (ENDA), prohibited job discrimination based on sexual orientation, but not discrimination based on gender identity/expression. It is likely that future ENDA proposals will include both sexual orientation and gender identity/expression as protected characteristics. When that happens, Congress will once again be following the lead that employers from coast to coast have already clearly established in affirming the equal employment rights of their transgender employees.

Labor In Exchange for One's Rights

A large and growing number of employers across the United States require current and prospective employees to sign away core constitutional rights as a condition of getting a job. "If you want to work here," millions of employees are told, "you have to agree that any disputes you have with us--even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act--will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don't like it, you can't work here.

Health Care, Labor, Economy, Prosperity

It goes without saying that a healthy worker is a better, more productive worker. Sickness not only cuts into productivity by taking an employee out of the office, but chronic, untreated conditions can sap energy, happiness, and ability, resulting in a less productive environment for both the employee and the employer. This is why in the 1940s, when businesses were competing for workers but couldn't raise wages due to wartime wage controls, health insurance was introduced as a benefit. It was a win for both sides.

Domestic Workers Lack Adequate Legal Protections

Mr. and Mrs. Ortega* worked and lived in the D.C. home of Ms. Glasson* for the last 7 years. The Ortegas each worked an average of 60 hours a week, cooking, cleaning, and driving Ms. Glasson around town. Last fall, they were fired without notice, given two weeks severance and immediately evicted from Ms. Glasson's home. Ms. Glasson was gracious enough to have a U-Haul waiting for them. The Ortegas were never paid overtime. I wish I could say that this story was uncommon or shocking, but the truth is that I hear some version of this story several times a month. To make matters worse, protecting employees like the Ortegas is difficult because domestic workers are routinely exempt or excluded from many basic workplace laws.

Remember, Remember the Fourth of May

Many people don't think about Labor Day. They see it as another day off from work. It's a day when the retail corporations offer incentives to come out and consume. Yet, even those who have an inkling of what Labor Day is and what it's about don't realize that this day masks the real defiance and spirit of the workers' movement.

Workplace Flexibility � A New Standard for the American Workplace

In today's difficult economy, we are all more acutely aware of the changing nature of work in this country. American employees are increasingly concerned about job security and losing crucial benefits--while the demands on them in a 24/7, global marketplace have intensified exponentially. Many employees are working more hours than ever before, while others--especially low-wage workers and those in the growing contingent workforce--have little or no control over how many hours they will work in any given week.

A Labor Day Attack on Farmworkers

Amid all the hype of political conventions, analysis of the Republican VP pick and Labor Day celebrations for the rest of the country, the Bush Administration will launch an attack on the nation's farmworkers. Secretary of Labor Elaine Chao and Secretary of Homeland Security Michael Chertoff, at any moment, will announce extensive changes to the H-2A guestworker program, slashing wages and reducing worker protections for hundreds of thousands of our nation's farmworkers.

On Labor Day, a New TV Campaign for the Employee Free Choice Act

Starting Labor Day 2008, workers' rights advocacy group American Rights at Work is taking to the airwaves with a national TV ad campaign for the Employee Free Choice Act.

The Dignity of Work

It's easy to forget the historic meaning of Labor Day, lost as it is in the haze of BBQ smoke, back-to-school sales and that last long weekend of summer's vacation season. In the diminished ranks of organized labor, now down to 8% of the working population, the holiday, once a celebration of victory over corporate greed and heartless work reveals nostalgia for days gone by, a nostalgia haunted by worries about the future.

Labor Day Reflections on Election Day Decisions

Labor Day is the one day of the year that honors working people � those �who from rude nature have delved and carved all the grandeur we behold,� in the words of one 19th century proponent of the holiday. These days find fewer workers delving and carving, and more of them word-processing or telemarketing. How are they doing this Labor Day?

Southern Gulag: How 20th Century Slave Labor Undermined the US Labor Movement

Let us talk this Labor Day about slave labor in the United States. No, not the antebellum kind before the Civil War but the slavery that persisted well into the 20th century, the slavery that was integral not only to the southern economy but slaves owned by northern corporations and used to break strikes and keep the South a union-free reserve. And I don't mean some metaphorical slavery, but, as Douglas Blackmon writes in his recent Slavery by Another Name, the slavery of brutal forced labor, whips, death and sexual rape of black women�in many ways worse than that of the older form of slavery.

Supreme Court Surprise

Three years ago, I was interviewed by Court TV about the John Roberts nomination. In preparation, I painstakingly reviewed his record. In so doing, I reached the unpleasant conclusion that Roberts was philosophically opposed to civil rights and other legislation for the public good which Roberts deemed to an improper exercise of congressional power.

The Importance of Labor Day: A Word from Our Co-Founder

Labor Day gives us a chance to review necessary changes in our labor/employment laws.

By Next Labor Day, Let's Have Guaranteed Paid Sick Leave

The first �labor day� celebration was a march--10,000 workers took an unpaid day off to demonstrate in New York's Union Square in 1882 to promote the union cause. Now, the federal holiday is supposed to be a day of paying tribute to the American worker and recognizing the contributions that unions have made to American prosperity. It should remind us that we didn't always have an eight-hour day, a minimum wage, unemployment compensation, pensions, or other reforms that are fundamental to the quality of life we enjoy as Americans.

CEO's Home Isn't Where Your Heart Is

Who would you rather have leading your company? Casper the friendly ghost or a Genie who can make all of the company's wishes come true (even if he does have a comb over)? Let's face it, shy and retiring just doesn't cut it when you're responsible for the livelihood of lots of people. When it comes to effective CEOs, bigger always seems better. Or does it?

Three New Studies Link Employee Engagement to Achieving Key Workplace Metrics

The Labor Day holiday implies adults in the workforce, but this day involves younger generations, too. Witness the millions of parents, and their kids, getting used to quickly changing schedules as the latter group goes back to school.

Bush Shirks Role as Top Labor Cop

Every year nearly 6,000 American workers are killed on the job and many more are bilked out of an estimated $19 billion in wages by their employers. Unfortunately, workers do not have the protections they need and deserve because President Bush's Department of Labor has failed to effectively police low-road employers, and unions--which give workers a voice on the job and help to ensure laws are followed--have been under attack and therefore shrinking in size.

Flexibility at Work: Asking it of our Leaders and Ourselves

Many of us will have seen the neat educational drawing from the 1950's: �eight hours for work, eight hours for sleep, eight hours for leisure� for a balanced life. It feels so quaint, and speaks to a phantom work-family life that is reality for few Americans.

Working Americans Want "More" and "Better"

What's the fastest growing and most heavily unionized sector of the workforce? Surprisingly, it's professionals and technicians, 23 percent of whom belong to unions, compared to only 15 percent of the entire workforce. Why are these workers � who are supposed to be prospering in the new economy � joining unions? And why would even more organize if only the right to organize was strengthened for all working Americans?

The Importance of Fair Pay This Labor Day

To many, the 2007 decision of the U.S. Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co. marked a low point for protecting women against pay discrimination in the workplace. The case held that Lilly Ledbetter, the plaintiff, could not hold her employer, Goodyear, accountable for pay discrimination that had occurred over many years under Title VII because her statute of limitations for such a claim had run out before she even knew about the discrimination. The Ledbetter decision creates an absurd result.

Inside the Minds of Unionbusters

Labor Day has become not just a time to for a parting celebration of summer, but for a hardy band of labor advocates to remind the public -- at least those who bother to listen -- of the perilous state of workers' rights and economic security. Yet if the potential appeal and value of unions is so great, why are only eight percent of the private workforce members of them?

Too Much Squeezing and Too Little Respect

If we have Mother's Day to celebrate mothers, Father's Day to celebrate fathers, and Valentine's Day to celebrate lovers, it makes eminent sense to have a day--Labor Day--to celebrate the nation's workers. Far too often the accomplishments of the nation's workers--whether it's producing the food we eat or protecting us from hurricanes--are ignored, instead of honored. Labor Day should be a day in which the nation dedicates itself to the proposition that its workers--indeed every worker--deserves respect and fair treatment.

Labor is Not a Four-Letter Word

Several years ago, an upscale supermarket opened in Princeton, where I live. The store was non-union and members of the local UFCW were picketing. Not only did virtually all of my liberal Democratic neighbors cross the picket line as if it weren't there, when I asked them about it later, they laughed at me. There was a time when Americans, or at least Democrats, understood the importance of unions. That time has passed.

Anxiety Reigns for Workers This Labor Day

The mood of the American worker in a word: jittery. This Labor Day, organized labor celebrates (if you can call it that) its 12 percent-of-the-workforce clout - 7 percent if you count only the private sector.

Labor is as Relevant as Ever

Around this time of year, it's become traditional to question labor's relevance, to take the pulse of unions and suggest that even if they once had a legitimate purpose they now are dinosaurs in a modern era. That's understandable, in light of labor's weak vital signs, but it completely misses the point, given what's happening to working and middle-class Americans.

What DOES Labor Day Really Mean, Anyway?

Of all of us currently in the throes of the Labor Day weekend, how many are thinking about what Labor Day really means? For many people, Labor Day signifies the end of summer and back-to-school time. It's the first guaranteed three-day weekend since Memorial Day, and the first holiday since July 4. The more fashion-conscious among us may be worrying about whether they can still wear white. (Apparently, that rule is loosening.) The politicos are gearing up for the home stretch of this year's election campaign season, while sports fans are welcoming football's return. (See Labor Day - Wikipedia entry.) But how many people who work for a living are thinking about what Labor Day means to them personally? Or to us collectively as a nation?

Today's Workplace is Taking Back Labor Day!

On Labor Day, September 1, Workplace Fairness will launch the Take Back Labor Day blog project right here, on the new and improved Today's Workplace blog. We hope you'll support Take Back Labor Day by visiting the blog and sharing your opinions and insights with our bloggers and our readers through the comment function. Please help us start a real conversation about workplace fairness in this country.

Making the Call for Health Care

Workplace Fairness is part of the Health Care for America Now coalition, and we want to know: where do our members of Congress stand on health care? Are they with us for quality affordable health care for all? Or are they with the insurance industry, working to preserve our broken system? With the help of a groovy new tool, you can instantly call Congress to find out. It really couldn't be easier!

Shocking: Justice Department Used Political Considerations to Make Hiring Decisions

By the time the Inspector General's investigative report was issued on July 28, not too many were surprised to learn that political appointees at the Justice Department, starting back in 2002, attempted to pack the department with conservatives by screening out candidates with so-called liberal references on their resumes. While it's almost amusing to learn the lengths to which Monica Goodling and other true believers went to ferret out lefty leanings, what's less amusing is that in most situations in the private sector, discrimination on the basis of political affiliation is not against the law. Just something to think about when your water cooler conversation gets a little overheated...

Vote in November: Wal-Mart Says So

Wondering whether it's important for you to vote in November? The recent actions of America's largest employer, Wal-Mart, should tell you all you need to know. Wal-Mart claims it wasn't telling its employees how to vote, and as a nonprofit 501(c)(3) organization, neither will we. But we will ask you to look at what Wal-Mart has been up to and make your own decision about the importance of voting in November.

Get a Raise Today? Minimum Wage Goes Up Again

Did you get a raise today? You might have, if you work for the minimum wage, or live in a state where the state minimum wage is tied to an increase in the federal minimum wage. Today, the federal minimum wage rose to $6.55 an hour, from $5.85. This also trigged an increase in some states which have minimum wages higher than the federal law. I guess any increase is better than nothing, but it still isn't worth more than it was in the 1950s when adjusted for inflation, and still isn't enough to keep families out of poverty. Yet there are still those who wrongly insist that raising the minimum wage costs us jobs and interferes with free enterprise -- go figure. Comment

Wait, Now Hurry Up: OSHA Changes Afoot

It seems to have finally occurred to the Department of Labor that there is about to be a change in administrations in a few months. It's otherwise hard to explain why, after 7 1/2 years, DOL is suddenly and stealthily trying to make it harder for you to be protected from toxic chemicals in the workplace. If DOL could sneak in a new regulation before there's a new president, Secretary of Labor Elaine Chao can continue to boost her legacy of harming the very workers her job it is to protect. Comment

Workplace Fairness Receives Major Donation from Consumer Lawsuit

Wondering why you've been hearing more from Workplace Fairness lately? One very big reason is a donation that we recently received as part of a consumer class action lawsuit. We owe some very huge thanks to Dworken & Bernstein Co., L.P.A., and Grange Insurance, whose settlement has made it possible for Workplace Fairness to resume staffed operations and carry out its mission to educate workers in a more comprehensive and effective way. Comment

"Just One" Doesn't Work When Public Employees Treated Unfairly

When I go to a restaurant by myself, one of my pet peeves is to be asked, "just one?" like it's a sign of my own personal failure to be there without another guest. A public employee in Oregon can probably relate -- she just had her own version of "just one" shot down by the U.S. Supreme Court. If you've been treated arbitrarily or irrationally, you better find someone else to join you at the table, says the Court.

Maybe You Should Leave the Spouse at Home

Unfortunately, we live in a world where harassment and retaliation cases haven't gone away, and there are still some pretty egregious ones there. But a couple of suits filed recently caught my eye in that they involve the actions of the employer's spouse. In both cases, powerful people brought their spouses into their workplace to work with them, but their employees allege their boss wasn't doing enough to curb their spouse's egregious behavior. These cases highlight the worst side of nepotism, where bosses don't hold their spouses to the same standards of behavior to which the rest of their employees would be subjected.

Paula Brantner Returns to Workplace Fairness as Executive Director

I am thrilled to announce that today, June 2, I return to work with Workplace Fairness as the organization's Executive Director. Workplace Fairness' mission of providing information and education to workers and representing the pro-worker voice in public policy debates is as viable as it has ever been in a workplace environment that is becoming ever more inhospitable to workers. I will be working with the WF Board of Directors to ensure the organization is again able to be a leading voice for workers in this country by continuing our programs, revitalizing our website, and maintaining financial stability.

It Shouldn't Hurt to Say You're Sorry

A recent article in the New York Times caught my eye: Doctors Say 'I'm Sorry' Before 'See You in Court'. It really got me thinking about what would happen to the practice of employment litigation if employers would adopt the same practice. I suspect that it would dramatically cut the instances where employees would sue their employers if more employers could say "we're sorry," when an employee was mistreated. Will this trend take hold with employers the way it's starting to with doctors?

Say Hello to GINA

GINA isn't a new Workplace Fairness staff member, but the first piece of federal legislation protecting workers from discrimination that has come along in quite some time. GINA stands for the Genetic Information Nondiscrimination Act, which prohibits employers from discriminating against applicants and employees based on genetic tests or genetic information, and also prohibits health insurers from restricting enrollment and premium adjustments for health insurance on the basis of genetic information or genetic services. Don't rush out to get those genetic tests just yet, however, as the employment section of the new law doesn't go into effect for 18 months, in order to give the Equal Employment Opportunity Commission time to implement regulations, and for employers to develop policies consistent with the new law.

Moonlighting -- Not Just a Bruce Willis TV Show

It used to be that one job was enough. If you worked 40 hours a week, you spent the rest of your time with your family and friends, engaged in your community, and were able to have a balanced life. And if you had to work more than 40 hours, you were either paid handsomely for your level of commitment, or at the very least, expected to be loyal to your employer. But it just doesn't work like that anymore -- more and more people are working extra jobs, not because they want to, but out of necessity. But all that moonlighting has consequences that nobody is really talking about.

Changes Proposed to FMLA Would Hurt Workers

As discussed in a prior post, the Department of Labor has proposed changes to the FMLA in a last-ditch effort to satisfy business interests before there is a change in administrations, which could, depending on who is elected, stall business-friendly changes for a considerable period of time. Here's a look at some of the specific changes proposed.

Will FMLA Changes Squeak By in this Administration?

One of the workplace priorities for the business community during the Bush Administration has been to scale back the Family and Medical Leave Act (FMLA). However, in the waning days of the administration, there still have not been significant changes, which has been a source of frustration to some. There is now a last-ditch effort to move forward some business-friendly changes to the FMLA, while there is still the ability to do so, should a Democratic candidate be elected President in November. As you can imagine, most of the "clarifying" changes attempt to tilt the balance in the employer's direction. Pro-worker groups are mobilizing to stop the worst of the changes from taking effect, by soliciting comments by the end of the comment period on April 11.

Another Win for Workers from the Supreme Court

In my last blog post, I talked about a win for workers before the U.S. Supreme Court that might not have seemed like one at first blush. But the very next day, workers enjoyed a clear victory in a 7-2 vote by the Court, in the case of Federal Express Corp. v. Holowecki. Many commentators have noted that the case seems to represent a departure from other cases from the Roberts Court in its worker-friendly tone, and more relaxed approach to proving discrimination. As mentioned before, workers often have to take their victories however they can get them, but this decision was certainly a welcome switch.

Workers Win One Here and There

As we've mentioned more than once around here, the Roberts Supreme Court isn't the most friendly to workers, and might even be less friendly than the Rehnquist Court. But every once in a while, the little guy gets some bones tossed his way. (Sorry to mix metaphors and not use gender neutral language in the same sentence.) That's what happened recently in a couple of recent cases, where workers staved off the worst that could have happened from the court.

Were the Panda Super Bowl Ads Racist?

Now here's a ready-made blog post for me: mix pandas with Super Bowl advertising, and then throw in societal attitudes about racism, which have been examined more than once here at Today's Workplace (and are certainly at the heart of Workplace Fairness's mission). At the intersection of all these things, you have the reaction to SalesGenie.com's Super Bowl ad. Was it racist? Should it have been pulled and/or never made in the first place? I'm not sure I have any answers, but it certainly provides all of us with an opportunity to constantly examine our own attitudes.

Election Has Workplace Implications

It's an election year. If this has escaped your notice, you either 1) don't live in the United States; or 2) must never watch television, read a newspaper, or use the Internet (and since you're reading this, the latter is probably not true.) In the primaries, both major parties and many candidates (even though the field has narrowed considerably recently) have bombarded the public with their messages until anyone but the most extreme political junkie is thoroughly sick of it by now (and it's only February.) So it shouldn't be a surprise that news articles are already circulating that tie the candidates to specific workplace trends and policies.

Have You Heard About Twitter Yet?

You may be too busy worrying about workplace issues to have heard of Twitter, but I hope to introduce you to a whole new way of receiving and delivering information -- as well as having fun. With this post, I introduce you to a new Twitter feed focusing on workplace stories, where links and commentary are delivered in bite-size chunks: 140 characters, to be exact. Too busy to follow and read blogs and your favorite news sources online? Twitter can help you digest information more quickly.

Does Kinder Capitalism Mean Spying on Employees?

Being the wealthiest man in the world means that people hang on your every word and scrutinize every action very closely. That's the price Bill Gates has had to pay for his fame. But could Gates' company, Microsoft, be in the process of trying to subject every employee who uses a computer to the same level of scrutiny? While Bill is making speeches calling for a "kinder capitalism," a Microsoft patent application which recently came to light calls for corporate practices that are anything but kind.

Who You Gonna Call?

When you think you've suffered from discrimination or harassment at work, the Equal Employment Opportunity Commission (EEOC) is supposed to be there to protect your rights as a worker. But your experience with the EEOC can be shaped by the very first phone call. Right now, the EEOC is scrambling to cover the phones which receive incoming calls from the public. Will this mean that cases with merit get lost in the shuffle, due to inadequate training and/or inexperienced staffers? Only time will tell, but it could be disastrous.

Mandatory Arbitration a Violation Too

Jamie Leigh Jones' legal fight against her former employer, KBR, a former Halliburton subsidiary, has attracted a great deal of attention, for the grave nature of her allegations against her employer. Jones says that she was gang-raped by her Halliburton/KBR coworkers in Baghdad, and then, when she reported the crime, she was placed under guard in a shipping container and threatened if she were to leave Iraq. What most people do not realize is that if Halliburton has its way, Jones will also be violated by the legal system's inability to fully protect her. Halliburton claims that Jones' employment is subject to an arbitration agreement which would prevent her from having her claims heard in a court of law.

What About Worst Employers?

It's the time of the year where reporters break out that oft-used story generator: the yearly list. When it's too hard to put together a real story, it's always possible to pull a bunch of unrelated items together, give it a theme, and call it your 2007 list. I can't say I blame them -- I've been known to do the same thing myself. But when CNN decided to publish a story called "Worst Employees of the Year," you can imagine why my blood was boiling.

Happy Anniversary, ADEA

Recently, a very important anniversary passed -- with far too little fanfare. The Age Discrimination in Employment Act (ADEA) just turned 40 -- the very age of those it operates to protect. While race and gender discrimination cases may get more publicity, the ADEA is a steady workhorse. We will all grow older, and with the demographic and economic shifts that are keeping people in the workforce longer, there are and will continue to be a vast number of people who will need its quiet protection to ensure their careers are not prematurely stunted or ended by discrimination and stereotyping.

We're Back!

After about a nine-month hiatus, Today's Workplace is back.