As I, like many other Americans, try not to get too depressed over the forms I’m still scrambling to fill out and the taxes I must pay this year, I try to remember that I could be much worse off. Here is some information and commentary related to April 15:

Longing to Return to W-2 Status

In this commentary, published in the Christian Science Monitor, Joseph H. Cooper’s essay (semiautobiographical, according to the author’s bio) reflects on the pain caused by being unemployed on April 15. Cooper’s anonymous character muses: “It’s the 1040 time of year and he longs for a return to W-2 status. With a mix of memory and desire, he sighs, `I’d never complain about owing taxes, if only I had a salary again.'” The pain of Cooper’s protagonist is echoed in an article which appeared in the New York Times Magazine this past weekend, entitled Commute To Nowhere. In this extensively researched and well-written article, reporter Jonathan Mahler profiles three out-of-work professionals who grapple with long-term unemployment after reaching the pinnacles of career success. One former computer-industry wiz now sells khakis at the Gap, while a former IT professional with a Ph.D, unemployed for two years, now works as a substitute teacher. As the author comments,

While the recession of the early 90’s took a heavy toll on white-collar workers, this one seems to have institutionalized the phenomenon. Advanced degrees, no matter how prestigious, offer little protection. The economy is grim nationwide, but the picture in New York City is especially bleak. Since the end of 2000, the media-and-communications sector has cut 15 percent of its jobs, telecommunications 27 percent, advertising 25 percent. Eighteen percent of jobs on Wall Street have been slashed, and firms continue to lay people off. Given the delirium with which most high-tech jobs were first created, there’s no reason to believe that many of them — and the jobs in other sectors that they generated — will come back anytime soon.

By the numbers, women have been hit as hard as men, but white-collar men tend to experience unemployment differently, organizational psychologists say. For most women, survival trumps ego; they simply adapt and find some job. For men, grappling with joblessness inevitably entails surrendering an idea of who they are — or who others thought they were.

There are far too many Americans who aren’t submitting their W-2s to the IRS today.

You Can Stop Working for 2002 Now: If You’re Female, That Is…

As if April 15 wasn’t depressing enough, today is also Equal Pay Day–our annual reminder that women have to work a few extra months each year in order to catch up to their male counterparts. Today is symbolic of the day women finally earn as much — since Jan. 1, 2002 — as men earned by Dec. 31, 2002. (See KC Star article). Creative protests of the pay gap are planned: in Boston, working women plan to hold an “Unhappy Hour” at a downtown bar; women’s drinks will cost 76 cents, while men will have to pay $1. (See AFL-CIO News: Equal Pay Day. Similar hijinks happened during previous Equal Pay Day observances: in 2002, activists for pay equity in Minnesota sponsored a morning “UnHappy Hour” event; those who attended were given 3/4 cups of coffee or latte, received 3/4 of a muffin and had 3/4 napkins to symbolize the almost 3/4 of a dollar that women are paid. (See Equal Pay Day 2002). Similar strategies were recently employed in Utah, by some teenagers who are already pretty smart cookies themselves when it comes to gender equity. (See Women’s E-News article.) It’s a pretty savvy way to draw attention to a very real issue that refuses to go away.

Other resources on Equal Pay Day:

Equal Pay Day: Legislative Background

The Case for Equal Pay

AFL-CIO State-By-State Pay Equity Reports

Civil Rights Plaintiffs Pay More Than Their Fair Share

On this day, some are paying far more than most…those who have successfully vindicated their rights through our legal system. Many will celebrate their victory in court or through a successful settlement by writing a large check to the IRS–for some, the amount will be larger than the check they received when they won or settled their case. Here are a couple of news stories about those people:

Women Victors in Bias Suit Seek Tax Law Reform

Winners and Losers

These cases illustrate why we need your help in passing the Civil Rights Tax Relief Act, so that on April 15, 2004, there won’t be any more winners who become losers that day.

More Information on the Civil Rights Tax Relief Act

Lobby Days for Tax Relief

On April 1, 2003, the Senate Judiciary Committee held a hearing on a judicial nominee to the Ninth Circuit Court of Appeals, Carolyn Kuhl. That hearing, in itself, wasn’t particularly extraordinary. What was extraordinary was that for the first time in recent memory, a hearing was held on a nominee upon which a home-state senator’s “blue slip” had not been returned.

What Is a Blue Slip, and Why Does It Matter?

According to the Department of Justice’s Office of Legal Policy, a “blue slip” is

the traditional method of allowing the home state senators of a judicial nominee to express their approval or disapproval. Blue slips are generally given substantial weight by the Judiciary Committee in its consideration of a judicial nominee. The process dates back several decades and is grounded in the tradition of “senatorial courtesy”, which traces its roots back to the presidency of George Washington.

See OLP Judicial Nominations Page.

Notably, the “official” government web site on nominations reports the status of blue slips during the 107th Congress (the 2001-02 Congressional session), but not the 108th Congress (the 2003-04 Congressional session). Perhaps this is because the blue slip no longer seems to matter. When Sen. Orrin Hatch took over as chair of the Judiciary Committee in January, he announced that he would no longer honor the blue slip policy. “I’ll give great weight to negative blue slips, but you can’t have one senator holding up, for instance, circuit nominees. We’re going to follow the Kennedy-Biden-Hatch policy, which basically says that blue slips will be given great weight but they’re not dispositive. That’s the way it should be.” (See Salt Lake Tribune article) The “Kennedy-Biden” reference refers to when Democrats controlled the Senate during the tenures of Republican Presidents Reagan and Bush the elder. Then-chairs Sen. Edward Kennedy and Sen. Joseph Biden allowed judicial nominees to move forward if just one senator from a state submitted a positive blue slip. After Republicans won control of the Senate in 1994, Hatch himself changed the rules, refusing to move a nomination from Democratic President Clinton unless he had positive blue slip approvals from both senators. Former Sen. Jesse Helms, R-N.C., used the tactic to block all of Clinton’s court nominees from his state.

Sen. Barbara Boxer of California has not returned a blue slip on Carolyn Kuhl, but Judge Kuhl’s hearing nonetheless proceeded on April 1. (See Washington Times article.)

Scalia in a Skirt?

Sen. Boxer’s opposition to Kuhl’s nomination is one shared by many groups, including Workplace Fairness. Her record shows that she repeatedly sides with corporate interests and is an opponent of employees’ rights. As a lawyer in private practice, she worked to immunize corporations that defraud the government from claims by whistleblowers and argued that the courts should strictly limit punitive damages for corporate misconduct. And as a judge, she has been reversed repeatedly for rulings that favor corporate defendants and other wrongdoers over injured plaintiffs. One commentator recently noted that Kuhl shares many of the characteristics of other women nominated by the Bush Administration for federal judgeships, in an article posing the question, For a Woman to Get that Federal Court Nomination, Does She Have to be Scalia in a Skirt? The same claim has also been made by Eleanor Smeal, president of the Feminist Majority, who opined the day of Kuhl’s hearing: “Not only is Bush the first president to appoint a smaller percentage of women to the federal bench than his predecessor, but the women he is nominating are Scalia in a skirt—women who never saw a woman’s legal right that they wanted to uphold.” (See Kuhl Retracts Controversial Positions; Refuses To Opine on Abortion Rights.)

Unlike other nominees, who have steadfastly held to the positions they have taken prior to their nominations, Kuhl at least was willing to admin some of her past advocacy was wrongheaded. (See Washington Post article.) Kuhl said in her hearing that she “regrett[ed] taking the position I did,” when asked about her efforts to retain Bob Jones University’s tax-exempt status when it was racially segregated. Many fear that her efforts to distance herself from her past advocacy are merely designed to win her confirmation, however; once she is confirmed as a federal judge, she will not be bound by any of the statements she made in her hearing. And her lifetime appointment will prevent her from ever being recalled, regardless of the hypocrisy of any opinion when compared to her current assertions.

There remain many good reasons to oppose Carolyn Kuhl, even without the abrogation of the blue slip process. However, the combination of her extremist advocacy and the hypocrisy of Sen. Hatch’s current blue slip policy should be enough to prevent her nomination from moving ahead. It hasn’t happened yet, but it should. It will be very interesting to see how quickly the Judiciary Committee moves on Kuhl’s nomination on their return from recess in late April. In the meantime, your Senators need to hear from you how you feel about this development. Please take action now by following the link below:

Demand Fair Judges: Stop Carolyn Kuhl

On May 6 & 7, 2003, you will have an opportunity to make a difference in the lives of workers around the country. On those two days in May, Workplace Fairness and our sister organization, the National Employment Lawyers Association, are cosponsoring Lobby Days in Washington, DC, on behalf of the Civil Rights Tax Relief Act. We need as many workers as possible across the country to participate, so that this is the year we finally are able to pass a law correcting this fundamental unfairness in our tax code.

• How Lobby Days Work: While some of the details are still in the process of being finalized, here’s a basic primer on what will happen. Early in the morning, you will attend a briefing session in downtown Washington, DC, where experts on the legislation and on the lobbying process will discuss the Civil Rights Tax Relief Act (House version/Senate version) and what to expect when visiting Congressional offices. You will have an opportunity to ask any questions you might have, especially if you have not lobbied before. You then will be matched with an attorney who will accompany you to your Capitol Hill visits, and given a folder of resource materials to leave in each office you visit. Next, you’ll travel to Capitol Hill and meet with your Senators and Representative (or most likely, a member of their staffs), along with your participating attorney and possibly some other participants from your state or Congressional district, and ask for their support and/or cosponsorship of the Civil Rights Tax Relief Act. We then ask that you fill out a feedback form with your impressions of the visit, including any necessary followup, and if possible, participate in an evening “debriefing” session where participants share their experiences with the Lobby Day staff. It may sound difficult if you’ve never done it before, but previous participants can all attest that it’s easy and fun, and most importantly, makes a real difference in moving this legislation forward.

• Why Should I Participate?: If you are currently participating in a lawsuit, then you have probably learned by now what is at stake financially for you should you win or settle your lawsuit. You may be forced to pay a significant portion (and in some cases, all and then some!) of your award or settlement in taxes, leaving you without full compensation for the income you have lost and the pain and suffering you have undergone. Your tax bill could amount to tens of thousands of dollars, and depending on your tax status and the attorneys fees awarded, you could even end up owing money for winning your case. While the cost of traveling to Washington, DC, may be significant for you, depending on where you live, it could cost you much much more if the Civil Rights Tax Relief Act is not passed this year. At this time of year, when taxes weigh heavily on everyone’s mind, we hope that you will do what you can to avoid having to pay considerably more than your fair share of taxes on your civil rights award. Even if you are not currently participating in a civil rights lawsuit, perhaps you know someone, such as a friend or family member, who is affected by this issue. Please urge them to participate, and if they cannot, consider participating on their behalf, and making sure their story is heard.

• What if I Cannot Come to DC on May 6 & 7?: We realize that not everyone affected by this issue will be able to travel to Washington, DC to participate in Lobby Days in person. That is why we have several other ways that you can also participate, even if you cannot be there personally:

During the Congressional recess, April 14-25: you can make appointments to meet with your Senators and Representative locally, when your members of Congress will be in their home districts. For more information on how to do this, please contact Workplace Fairness, and a member of our staff will be in touch with you shortly.

Talk to your lawyer about participating in Lobby Days and encouraging other clients in discrimination cases to participate. More information for attorneys is available at the NELA Lobby Day page.

Participate in Lobby Days from home by calling or e-mailing your Senators and Representative on May 6th and 7th to urge them to co-sponsor the CRTRA. You can call your Senator by dialing the Senate Operator at (202) 224-3121 and asking for your Senator’s office, and can reach your Representative by dialing the House Operator at (202) 225-3121 and asking for your Represenative’s office.

Use our Action Center to find contact Senate and House contact information and to sign up to receive email alerts on the Civil Rights Tax Relief Act and other Workplace Fairness legislative efforts. Sign up here.

If you don’t think that you can make a difference, please read this article about some teenagers who refused to take no for an answer: Utah Teens Gain State Study of Gender-Pay Inequities. If their efforts don’t inspire you, I don’t know what will. Whether you’re with us in person or with us in spirit, we need everything you can give on May 6 and 7. Make your plans today!

Yesterday (4/9/03) the House Education and Workforce Committee approved HR 1119, the Family Time Flexibility Act, on a strictly party-line vote of 27-22. This bill, sponsored by Illinois Representative Judy Biggert, would allow hourly workers, through a voluntary agreement with their employer, to choose paid time off as compensation for working overtime hours. (See Biggert press release.) The bill, if passed, would amend the Fair Labor Standards Act, originally passed in 1938, to permit businesses to offer comp time instead of paid overtime.

The full House of Representatives is expected to act on HR 1119 in the next month, as committee leaders have called for passage by Mother’s Day. (See Reuters article and Committee press release.) A similar Senate bill, (S. 317, the Family Time and Workplace Flexibility Act has not yet been acted on by the Senate. The Senate version also includes a provision that would replace the 40-hour work week with an 80-hour fortnight, that would not allow workers overtime pay until they worked 80 hours over a two-week period.

According to Rep. Biggert, “[t]he law governing the private sector workforce has been frozen for more than 60 years, locked in a time when women worked in the home, most families had only one wage earner, and nobody went to kids’ soccer games,” and [t]his bill gives employees choice and flexibility – and that is what they want.” Is that really true? If so, why are the Democrats on the House committee so opposed to this proposal? Some of the criticisms of the proposal are as follows:

• HR 1119 does nothing to address the problem of mandatory overtime. In fact, by making it possible for employers not to pay for overtime and instead offer comp time at some later date convenient for the employer, this bill provides an incentive to require workers to endure long hours on the job. While HR 1119 anticipates this problem by declaring that employees, not employers, can choose whether or not to take comp time or pay, this ignores the reality that most workers have no say in their hours or working conditions. One purpose of the 40-hour work week is to keep employees from overworking current employees and failing to hire additional workers. In a time of economic stagnation, this measure discourages hiring new workers, and amounts to a pay cut for those who depend on time and a half overtime payment.

• HR 1119 won’t help workers who need to work overtime because they need the cash. Workers who need overtime assignments due to low pay on their jobs fear a switch to comp time. The employer chooses who gets overtime assignments and if workers don’t agree to time off instead of pay, it’s likely they won’t be chosen. Again, although HR 1119 appears to anticipate and penalize such discrimination, low-wage workers are not generally in a position to endure costly and protracted litigation, let alone the fear of additional reprisal, to vindicate their rights. What workers need is a higher minimum wage not an erosion of the Fair Labor Standards Act’s overtime pay protections.

• HR 1119 doesn’t guarantee that workers who have accumulated comp time will be able to use it when they most need it. Many workers who already have comp time complain about not being able to take it when they need it. The bill allows employers the right to refuse the employee’s use of comp time where the employee’s absence would “unduly disrupt the employer’s business operations”–a standard that is likely to be the subject of many legal disputes if the bill is passed. While the goal of the legislation, according to the sponsors, is to help “working men and women achieve a greater balance between family and work obligations and spend more time with their families,” this balance will not be achieved if workers, for example, are forced to use comp time at times other than during school vacations, teacher conferences, or when a family member is ill.

(For more information on the opposition to HR 1119, see the testimony of Ellen Bravo, Director of 9to5, National Association of Working Women, at the March 12 subcommittee hearing.)

Whether you support or oppose this bill depends in large part, on your own experience: your own needs, and your employer’s accommodation of these needs. Some people need paid overtime in order to make ends meet: the number of hours they work above 40 each week at time-and-a-half supplements the insufficient wages they receive for the first 40 hours. Some people need more flexibility built into the law, as their employers will not voluntarily accommodate their employees in any way the law does not require them to (and unfortunately for some, even when the law does require certain accommodations).

It does appear, however, that time is only an adequate substitute for money when money is plentiful; otherwise, extra time off is a luxury some people simply cannot afford. Surely no one would suggest that for someone who can barely pay for adequate food, housing, and medical care for their children, time off in lieu of additional pay erases all these financial strains. In a perfect world, the Family Time Flexibility Act might be a very good idea. But in a perfect world, employers would voluntarily offer flexible work arrangements to help their workers balance work and family life without needing a law to force them to do so. And in the imperfect world we live in, many workers who now benefit from current law–the most vulnerable ones who need legal protections–may suffer if this law is passed.

Due to a recent series of meetings and unanticipated travel, postings to Today’s Workplace have fallen behind the regular daily schedule. Regular postings will resume on Wednesday, April 9. In the meantime, here are some interesting articles I have noted. Additional commentary is likely to follow.

Workers Who Feel Discarded

What Should Happen When Sexual Harassment Victims Don’t File Prompt Complaints?

What the Economic Indicators Miss

It’s Time to Land This Reward System

One of the latest hare-brained proposals currently under consideration by Congress is the “Class Action Fairness Act of 2003.” (House version/Senate version). While class action fairness may sound like a good idea, the bill as written promises anything but fairness to class action litigants. Maybe they should call it the “Fairness to Businesses Hit with Class Actions Because of Widespread Discriminatory and/or Illegal Employment Policies Act.” I guess that would be too long, however–not nearly as catchy.

When many different people have similar complaints against an employer, courts can allow a class action lawsuit to go forward on behalf of all affected employees, rather than having multiple individual lawsuits. This saves court time by allowing a single judge to hear all the concerns at the same time, and come to one settlement (or decision by a jury) for all parties. Class actions are therefore essential to the enforcement of our nation’s civil rights laws, since they are often the only way that individual employees can challenge discrimination. For example, if your employer has a policy of not interviewing disabled employees for open positions, it’s often easier to prove that there was a policy that adversely affected a number of disabled employees, rather than for one individual employee to prove why he or she was not hired. Or if layoffs or changes in pension benefits primarily affected older workers, a large group of employees can come together to challenge the way layoffs were administered or the reasons for age-based changes to a pension plan, rather than proving in a number of individual lawsuits that each individual affected was harmed by the changes that were made. Class actions can save courts, lawyers, and the parties involved a great deal of time and money.

The point of the proposed bills is to make it much more difficult and costly for class actions to be brought. Why is that? Because they have been too successful. Sometimes the only way that employees can stand up to more powerful corporations is to act collectively, as they may have too little at stake individually for an attorney to be able to pursue their cases. Employers know this, so restricting class actions is a good way to prevent employees from having any remedy against discriminatory and illegal employment practices. Bringing a class action is already a very difficult and costly proposition, and most lawyers who represent employees shy away from the challenge. The amount of time and effort necessary to build the proof necessary to proceed with a class action suit is far too burdensome for most small law offices and solo practitioners, so only a few firms nationwide specialize in this type of case. Making the process even more difficult means even fewer employees will be able to challenge discriminatory practices.

One of the bill’s provisions will move most class actions from state court to federal court. Why is this important? One reason is that federal court litigation can be more complex and costly, and there are a number of rules applicable in federal courts that most states have not yet adopted that make litigation in federal court more time-consuming and expensive. An even more important reason is that juries in federal courts are drawn from larger geographic areas (sometimes all or most of a state) than juries in state court, which are limited to the county or local geographical subdivision served by the court. Supporters of the “Fairness” Act want to prevent some local juries and judges from deciding whether or not to hold businesses responsible. Not coincidentally, most of the areas proponents have identified as plaintiff-friendly “judicial hellholes” are counties where most of the citizens are black and Hispanic. Proponents express concern that juries composed of these citizens tend to decide cases based on “rhetoric and emotional appeals” rather than “focus[ing] on individual responsibility.” Finally, federal courts are already overburdened, with federal judges complaining about the ever-increasing caseload, while litigants wait months or years to have their cases heard. Adding a new set of complex cases is not going to improve the problem.

Yet another provision would prevent settlements that provide named plaintiffs full relief for their claims. Now, for example, a named plaintiff (called the class representative) who sues an employer can receive a full award of back pay, and in certain cases, receive a court order placing him or her in the job denied because of discrimination, while also affording all members of the class the opportunity to share in available relief. The proposed bill however, denies courts the ability to approve settlements that allow a greater share of relief to a class representative than all members of the class. If an individual must give up the right to full relief in order to protect other members of the class, no one will want to become a class representative, and fewer class actions will go forward.

The Class Action Fairness Act will be considered by the Senate Judiciary Committee on Thursday, April 3, and once it passes out of that committee, can be considered by the full Senate. The bill has not yet seen any action in the House of Representatives, but could move soon, especially if the Senate is successful at moving the bill ahead. We need you to oppose this bill. Even if you are not currently part of a class action lawsuit, you never know when your employer’s practices might make this kind of lawsuit the best way for you to respond. You may have no way to fight back other than an individual lawsuit if this bill passes, so it’s important that you respond.

Take Action Now: OPPOSE THE CLASS ACTION “FAIRNESS” ACT!