This Thursday (10/2), the Senate Judiciary Committee is expected to again take up the nomination of Charles W. Pickering, Sr. for the 5th Circuit Court of Appeals. The move is likely to incite intense partisan debate over the propriety of resurrecting a nomination that was killed in the previous Congress by the Judiciary Committee, then controlled by a Democratic majority, along with Priscilla Owen, who was similarly renominated to the 5th Circuit. On Thursday, October 2, the Senate Judiciary Committee is expected to vote on Pickering’s nomination, even though several new senators have joined the Committee since Pickering’s previous hearing in 2002. If Pickering’s nomination is approved by the Committee, it will then move to the Senate floor, so please act now!

If Pickering squeaks through the Judiciary Committee this time, then the pressure will be on Democrats to mount a filibuster to stop Pickering’s nomination the way that Owen’s nomination has now been stalled for months. Pickering’s record shows a consistent opposition to efforts to remedy racial injustice, with indifference, and even outright hostility, toward those seeking to remedy perceived injustice, including workplace discrimination claims. Many questions have been raised about his ability to judge fairly and in a manner that is free of bias, as he displays a tendency to inject into his rulings his personal opinions and biases, raising serious questions about whether he is ruling based on personal views or on the dictates of the law. Judge Pickering also testified inaccurately in 2002 that federal courts almost never deal with valid employment discrimination cases, because almost all legitimate claims are settled through mediation.

Workplace Fairness urges you to oppose the nomination of Charles Pickering, Sr. for the following reasons:

In the vast majority of the published and unpublished civil rights cases available, Pickering ruled against civil rights plaintiffs. In the 17 summary judgment opinions reviewed (most of his civil rights cases are unpublished and unavailable), Judge Pickering ruled in favor of the employer on federal claims in all but three cases. At his hearing, Judge Pickering was asked about his record of strongly favoring defendants in employment cases. Incredibly, he defended his record by claiming that almost no employment discrimination cases that come before the federal courts have merit, because the meritorious ones are resolved by the Equal Employment Opportunity Commission. However, only a very small percentage of EEOC complaints result in successful mediations and the EEOC has very limited resources to initiate lawsuits on its own. Other cases have to be resolved by the federal courts through cases brought by the alleged victim of discrimination. Of course, if a federal judge wrongly believes that the employment cases over which he or she presides are automatically without merit, the victims of discrimination really have no redress at all.

Judge Pickering goes out of his way to disparage civil rights protections and plaintiffs. Judge Pickering’s decisions in employment cases appear to bear out the comments he made during his hearing. Although most of his employment discrimination opinions are unpublished, Judge Pickering has often gratuitously injected into his opinions a written lecture about plaintiffs who he believes should not be in federal court asserting civil rights claims. Typical of his comments: “The fact that a black employee is terminated does not automatically indicate discrimination. The Civil Rights Act was not passed to guarantee job security to employees who do not do their job adequately.”

(Seeley v. City of Hattiesburg; see also Johnson v. South Mississippi Home Health)

Judge Pickering refuses to follow procedural standards affecting plaintiffs in discrimination cases. In determining whether an employment discrimination claim is to be decided by a jury, Judge Pickering has frequently taken a narrow view of the evidence offered by the plaintiff, contrary to principles that require the evidence at this stage to be viewed in the light most favorable to the plaintiff. (Thornton v. Walker) Judge Pickering has also been unusually harsh with respect to sanctioning and threatening to sanction civil rights plaintiffs. For example, he awarded attorneys’ fees to a defendant in at least one employment discrimination case filed by an African-American registered nurse. (Johnson v. South Mississippi Home Health) It is questionable enough for a judge to refuse to allow a case to go to a jury that he describes as “fairly fact intensive,” but it is almost unheard of for a judge to award attorneys’ fees to a defendant in a fact-intensive case in which the plaintiff produced some supportive evidence, as federal law provides that a plaintiff has to pay a defendant’s attorneys’ fees only for “frivolous” cases.

Judge Pickering’s legal career is characterized by numerous instances of insensitivity to the rights of African Americans. As a law student, he published a law review article advising how Mississippi’s statute imposing criminal penalties for interracial marriages could be strengthened to make it fully enforceable. As a state senator, he cast several votes impeding the full extension of electoral opportunities to African-Americans. He also testified in 1990 that he had never had any contact with the state Sovereignty Commission, a notorious state-funded agency established after the Supreme Court’s landmark decision in Brown v. Board of Education to investigate civil rights advocates and block integration efforts—a statement flatly contradicted by Sovereignty Commission records, which indicate he had “requested to be advised of developments” regarding a Commission investigation. Both the Mississippi NAACP and the Congressional Black Caucus oppose Pickering’s nomination because of his “career and record on civil rights.”

The Fifth Circuit does not need any more extremists on race and discrimination issues. The Fifth Circuit, where Pickering would serve if confirmed, has one of the highest percentages (33%) of people of color of any circuit in the country, and in recent years has issued many of the most extreme civil rights rulings in the country, some of which have been reversed by a conservative U.S. Supreme Court.

Judge Pickering’s available opinions and testimony about his view of discrimination cases indicate hostility to plaintiffs who bring employment discrimination cases and an overwhelming tendency to decide matters of fact in favor of the defendant, often without hearings. Pickering’s view of employment discrimination cases seriously place in doubt his ability to maintain an open mind about these matters were he to be confirmed as a federal judge. Your voice is needed to help insure that your Senators look closely at Pickering’s anti-civil rights record.

Take Action Now: Stop Charles Pickering

More Information About Charles Pickering:

Statement Of Senator Patrick Leahy On The Nomination Of Charles Pickering

The Case against the Confirmation of Charles W. Pickering, Sr., to the U.S. Court of Appeals for the Fifth Circuit (Alliance for Justice report)

Judge Pickering, Again (New York Times editorial)

New Nominee Ploy by Hatch (Deseret Morning News article)

Pickering Fight Set for Round 2 in Senate Panel (Memphis Commercial Appeal column)

GOP Senators Ready to Start Fighting for Pickering Nomination Again (Associated Press article)

Panel expected to OK Pickering (Clarion-Ledger (MS) article)

(note: some information for this blog entry was provided by the Alliance for Justice.)

This week, the U.S. House of Representatives is expected to schedule a key vote on changes to overtime regulations that could affect millions of workers. While the House narrowly defeated a previous effort to overturn proposed overtime regulations, the vote was so close that there is still yet hope that the overtime proposal will be defeated. However, it is critical for the House to hear from millions of workers, to emphasize just how important this issue is for American employees, who rely on overtime to make ends meet and to limit the number of hours spent at work and away from their families.

As reported here previously, when the House previously considered whether to overturn the proposed overtime regulations, the effort to do so was rebuffed in a very close 213-210 vote, in which some Republicans in labor-friendly districts joined the Democrats on the losing side of the battle.

However, in the Senate, believed by many to be the more liberal of the two houses of Congress, opponents of the proposed overtime changes were initially more successful than their colleagues in the House. On September 11, the Senate, in a 54-45 vote, successfully passed an amendment to the appropriations bill funding the Labor, Health and Human Services, and Education Departments, which would prevent the Department of Labor from spending any money to implement the proposed regulations. (See CBS News article.) Six Republicans split from the rest of their colleagues on the vote: Six Republicans split with the administration on the vote, including three — Sens. Arlen Specter of Pennsylvania, Ben Nighthorse Campbell of Colorado and Lisa Murkowski of Alaska — who are on the ballot in 2004. The other three were Sens. Lincoln Chafee of Rhode Island, Olympia Snowe of Maine and Ted Stevens of Alaska. Sen. Zell Miller of Georgia was the only Democrat who voted with the Republican minority on the overtime vote. (See AP article.)

Now the issue is back before the House of Representatives, and opponents of overtime changes think they may have an opening, given the closeness of the vote and the absence of several supportive Democrats on the day the previous vote was taken. (See Dow Jones article.) While the previous vote itself will not be revisited, the House can vote to instruct its conferees (the members of the House who will be working with members of the Senate to resolve differences between the houses on the appropriations bill) to join the Senate version of the bill with the overtime-related provision attached. Or it can stick to its guns, which will likely mean the bill will move forward to the President without any overtime-related provisions attached.

Whatever the House ultimately decides to do, and whether it is possible at this point to derail proposed overtime changes remains to be seen. However, the vote is only likely to be swayed from the previous outcome if House members hear from workers who vote. Since the vote could happen on Wednesday, October 1, it is critical to act now and express your opinion to Congress.

Take Action Now: Protect Your Right to Overtime Pay

More Information about Proposed Changes

Want to know what the presidential candidates are saying about jobs and unemployment? Do you care about which candidate is picking up key endorsements from labor groups? Then our site’s latest feature is for you.

Our site’s new Eye on the Election feature contains the latest news about the 2004 Presidential election and the candidates’ stand on labor and employment issues. This feature, part of our site’s News and Issues section, includes such topics as presidential debates, endorsements and position statements made by the eleven Democratic candidates and President Bush affecting jobs and workplace issues.

This feature represents yet another effort to make it quick and easy for site visitors to learn more about the specific topics they care about most, and joins other features on union activism, workplace trends and statistics, corporate pay information, federal and state legislative developments and developments in the courts. We welcome your feedback and suggestions for future additions to our News and Issues section, and hope that you enjoy this new feature.

Amidst all the speculation, repeated here and elsewhere, whether the economy is or isn’t yet recovering from a recession, or whether a “jobless recovery” counts as a recovery or not, we finally have some dramatically improved unemployment statistics this week. But don’t get too excited. The number of new unemployment claims filed last week, at its lowest level since February, is so low in significant part due to “the closure of state offices in such areas as North Carolina, Virginia, Maryland, the District of Columbia” as a result of Hurricane Isabel, which affected workers’ ability to file jobless claims and also kept many state unemployment offices from being able to receive them. (See Smart Money article.) And while it’s too soon to speculate how many people are out of work temporarily or permanently due to hurricane damage, my own experience earlier this year with a local tornado causes me to suspect that the numbers will really zoom upward next week in those states, and remain high in the rest of the country.

The Bureau of Labor Statistics releases each Thursday its statistics for the previous week’s new unemployment claims. The number everyone wants to hear is 400,000 or less: any number above that is what economists have determined as a “lackluster job market.” (See Reuters article.) The number released today for last week’s first-time claims fell even more sharply than predicted to 381,000, down from a revised 400,000 a week earlier, and to its lowest since 378,000 in the Feb. 8 week. This number surprised even Wall Street economists, who forecast new claims at 400,000 compared to the original estimate of 399,000.

Because of the volatility of the weekly statistics, aptly demonstrated by this week’s hurricane-related decline, the four-week average is considered a more accurate figure. The four-week average announced today, was 407,000, a decline of 4,000 from the previous week. Last week’s blip (if it’s not premature to call it that) may also affect September’s monthly statistics, scheduled for release on October 3, as the employment rate was otherwise predicted to rise from August 2003’s 6.1 percent to 6.2 percent.

Amidst all the talk about unemployment statistics are the stories of the unemployed, for whom their personal unemployment rate is 100 percent. A recent Fort Wayne Journal-Gazette article chronicles a typical day at the unemployment office (when workers are able to get there, that is) which is all too familiar to workers in every state and every county throughout the country. (See Day at the Unemployment Office.) Those individual stories should not be forgotten in the wake of the cold hard numbers issued every week, especially once they return next week, as they undoubtedly will, to the numbers representing a continued “lackluster job market.”

Need to Find Your State’s Unemployment Office? See our site’s page on state government agencies.

One of the most fascinating workplace-related studies to cross our desk recently came to us courtesy of Nature Magazine. Researchers have learned that monkeys appear to have an innate sense of fairness, and will express their displeasure when failing to receive “equal pay for equal work.” Now that we know that primates have natural expectations to be treated fairly for what they do, how do workers get the primates who write our paychecks to honor those expectations?

Researchers Sarah Brosnan and Frans B.M. de Waal at Emory University’s Yerkes National Primate Research Center studied brown capuchin monkeys to learn that even nonhuman primates “respond negatively to unequal reward distribution.” (See Emory Press Release.) The capuchins were selected because they often cooperate to share food with one another. (See Salt Lake Tribune article.)

The researchers conducted four tests, each including two sessions of 25 trials, on pairs of female capuchins. (Females were selected because scientists have noted that “previous work had shown males to be less attuned to inequality than females.” See Scientific American article. Very interesting stuff here.) First, as a reward for exchanging token, they gave some monkeys cucumbers, considered a lower-value rewards of cucumbers. Then they measured the responses of the capuchin receiving cucumbers when their partners, in exchange for exerting varying levels of work, were given grapes, a higher-value reward. Brosnan noted, “We showed the subjects compared their rewards with those of their partners and refused to accept a lower-value reward if their partners received a higher-value reward. This effect is amplified when the partner does not have to work for the reward.”

When both animals in the pair received cucumbers in exchange for tokens (the equity test), there was a 95 percent completed exchange rate with the capuchin subjects. This exchange rate fell to 60 percent in the inequity test, in which the animals observed their partners receiving grapes for completing the same amount of work. Researchers found only 20 percent of animals cooperated with exchanges during the effort-control test, when partners received the higher-value reward for less work. Finally, a 55 percent exchange rate was recorded for the cucumbers in the food-control test. (See Emory Press Release.) The rejection took different forms in the inequality and effort-control tests: sometimes the slighted animals refused to give up their tokens; on other occasions they took the cucumber but refused to eat it or tossed it out of the cage entirely. While it is impossible to subjectively determine or categorize the animals’ emotional states, Brosnan observed “[t]hey were not happy with me,” when asked about the monkeys which were asked to accept lesser rewards than their partners. (See Salt Lake Tribune article.) The researchers plan to continue similar research with chimpanzees to determine whether chimps behave similarly to capuchins and humans.

As fascinating as this study is, what does it tell us? Adam Cohen of the New York Times offered this observation in What the Monkeys Can Teach Humans About Making America Fairer:

[I]n a week when fairness was so evidently on the ropes — from the World Trade Organization meeting in Cancun, which poor nations walked out of in frustration, to the latest issue of Forbes, reporting that the richest 400 Americans are worth $955 billion — the capuchin monkeys offered a glimmer of hope from the primate gene pool.

The study’s implication that we are, to some extent, hard-wired for fairness speaks with special force to the legal system. American law has undergone a transformation in recent years, led by conservative Supreme Court justices and scholars, away from a focus on broad principles of fairness and toward a willingness to subject people to treatment that might be unjust, on the grounds that it is legal. The monkey study suggests, however, that fairness might be more than a currently unfashionable legal concept. It may be integral to who we are.

The article concludes,

[T]he capuchin monkey study suggests that fairness is at least part of the mix of traits that go with being human — and that over time, higher notions of justice that look beyond mechanical application of rigid rules may have a fighting chance.

We at Workplace Fairness hope to unite all of us in this effort, true to our innate human values, to bring fairness to the workplace and to preserve it as a desired ideal. Whether it’s cucumbers and grapes or salaries and the corner office, we intuitively know that treating workers fairly and rewarding them according to their effort is the right thing to do.

If you saw the post below, you might have expected Today’s Workplace to return with regular postings before now. However, due to travel commitments and other priorities, our daily postings have fallen behind. However, we intend to resume very soon our regular updates on the most important issues affecting the workplace. Thanks for checking, and ya’ll come back!

Today’s Workplace will be on vacation until September 12, 2003. Our commentary on workplace issues will resume at that time.

The Administration’s Labor Day solution for the plight of the American worker: to create one job. At a Labor Day rally in Ohio, the President announced that he would create a new national position: assistant secretary of commerce for manufacturing. The New York Times wasted no time in responding:

Now, a new job czar has emerged like the Wizard of Oz to signal that the presidential election cycle is upon us. The agony of the jobless deserves the fullest attention of the president and his eager rivals, and federal action more ambitious than the addition of employment for one happy undersecretary in the Commerce Department.

(See New York Times editorial.)

We couldn’t have said it better.

Additional articles and commentary:

Bush Policy on Jobs Is a Shift

Bush Defends Tax Cuts and Announces Jobs Post

Bush and Factory Jobs

Manufacturing: An Overdue Focus On Saving Companies and Jobs

No Fix for Manufacturing

Election Means Manufacturing Gets Attention

Labor Day gives us all a chance each year (in the midst of last-gasp summer vacations and family barbecues) to reflect on the state of the American workplace, and the role each of us play in working to improve it. It also gives workplace reporters and pundits a chance to assess where we’re at, and political leaders a chance to score points with the working public. However, this year, only President Bush had much that was positive to say, while everyone else deeply lamented the sorry state we’re in.

Here are just a few of the kinds of statistics that cannot help but induce despair, from a New York Post column by John Crudele:

* The experts expect Washington to report on Friday that 10,000 new jobs were created in August and that the unemployment rate held steady at 6.2 percent. Those would be the first new jobs created since last January. But the statistical margin of error for the new jobs survey is plus or minus 156,000, and plus or minus 0.2 percent of the unemployment rate. In other words, 10,000 jobs are meaningless from a statistical point of view.

* According to the government survey of companies, there have been 2,690,000 jobs lost since the peak in employment in February 2001. That was the first full month of the Bush administration.

* When the government surveyed companies in July, it found a drop of 44,000 jobs. But when it asked people in their homes if they had worked at least one hour in the previous month, job losses increased to 260,000.

* The unemployment rate for people at least 25 years old with at least an undergraduate degree from college is now 3.1 percent. It was 1.6 percent when Bush took office. The 3.1 percent is the highest since 1993, when the last recession was ending.

* The average length of unemployment is now 19.8 weeks. It was 12.8 weeks in February 2001. The current level is the highest since it reached 20.4 weeks in January 1984.

* The number of people unemployed for at least 27 weeks is 1,959,000. Back in January the number hit 2,036,000 – the worst since 1993. As comparison: Back in February 2000 the number of people unemployed for 27 or more weeks was just 708,000.

Or, you can simply sum up the situation like Carl Van Horn does. Van Horn, director of the Heldrich Center for Workforce Development at Rutgers University, says, “American workers are doing very badly. All the trends are in the negative direction. There’s high turnover, high instability, a reduction in benefits and a declining loyalty on the part of employers. At the same time, expectations for productivity and quality are going up. It’s a bad situation from a worker’s standpoint.” (See New York Times article.) This assessment is nothing new to the unemployed and underemployed who found it hard to celebrate anything about Labor Day. Some of their stories were featured in various news articles:

* Vicky Kitzman, laid off over a year ago from her $21.50-an-hour job as a computer engineer at WorldCom, now works for $7 an hour at a Colorado Springs amusement park, in a temporary, seasonal retail supervisor position with no benefits ending in December. At job interviews, she’s told she’s either overqualified or unqualified, but she begs to differ. “I haven’t found a job in over a year — how can I be overqualified?” said Kitzman, who has associates’ degrees in commercial art and computer programming and is taking classes at night to finish her bachelor’s in computer program management. (See USA Today article.)

* Ruby Giles of Maywood, Ill., was laid off from her nursing home job of 20 years in March 2001 when the nursing home shut down. Giles, 59, can’t find another full-time job with benefits either, and with high blood pressure and other health problems, can’t afford to retire. “I have a daughter who helps me out a lot,” Giles said. “But everything is so expensive. I worry because you just don’t know what to expect.” (See USA Today article.)

* John I. Brown earned $14.50 an hour as an inspector at the TRW factory in Cleveland that makes valves for automobile engines. After working there for five years, he has been unable to find another permanent job since he was laid off 15 months ago. “I feel bitter…Every week I send out three or four applications, but it’s not easy. Every time I look around, there’s another company going out of business or going overseas. Even white-collar workers have been losing their jobs.” (See New York Times article.)

Some leaders and reporters couldn’t even wait for Labor Day to provide their analysis. In anticipation of the day, AFL-CIO President John Sweeney commented, “We do not see a reason to be optimistic about the current economic situation…Far too many people are out of work and many have been out of work a long time….White-collar as well as blue-collar employees are losing jobs, and many of these jobs aren’t coming back.” (See USA Today article.) And for once, union and manufacturing leaders agreed: too many jobs are going overseas. Richard Trumka, AFL-CIO secretary-treasurer said that a flood of U.S. jobs are going overseas because of the massive trade deficit, which is running at an annual rate of $488.5 billion for the first six months of this year, and the National Association of Manufacturers, in its annual Labor Day report (PDF), called for “urgently needed policy changes….to forge a pro-growth, manufacturing agenda that levels the international playing field, reduces the domestic cost of production, and provides additional assistance to workers.”

For his part, the president responded, at a Labor Day rally in Ohio, by painting an optimistic view of the future. “Things are getting better,” Mr. Bush told the assembled crowd. Orders for goods are coming back to the country’s factories, the president said, and productivity is on the rise — though he acknowledged that was one reason jobs were disappearing. “The economy is beginning to grow,” he said, “and that’s what I’m interested in. I believe there are better days ahead.” (See New York Times article.). At the same rally, the President announced the creation of an assistant secretary of commerce for manufacturing. While the move was intended to reinforce his commitment to bringing back blue-collar jobs, it was also noted that the creation of the position is the kind of action that Republicans, when they were out of office, used to criticize. Only time will tell whether the president is right and better times are around the corner, but the outcome of the next election could depend on it.

Rather than remaining bogged in depression over the vastness of such depressing news, a far more effective approach is to get busy. It’s time to write letters to Congress as it returns from recess to decide key issues affecting the workplace, such as overtime pay and judicial nominations. Write to the editor of your local newspaper and make your opinion about these disturbing trends known. Support reforms making it easier to join unions, so that your workplace has a strong advocate for workers right there in the workplace. Whatever you decide to do, don’t simply do nothing, or we will never have anything for workers to celebrate on Labor Day, and the original activism which spawned the day will simply fade away like the summer whose end the day unofficially marks.

Additional Labor Day Commentary worth noting:

A Way to Break the Cycle of Servitude (Louis Uchitelle, New York Times):

Twenty percent of the work force — 26 million people — earn $8.23 an hour or less. Most of them are not teenagers snagging pocket money, but adults supporting families. With so little income, too many Americans are pushed into poverty, and getting out of this trap is increasingly difficult. As many studies have shown, rising income inequality has driven people apart. And low-wage workers, occupying the bottom rung in this ruptured society, have descended into what amounts to a servant class. It is not their work that makes them servants. We need factory assemblers, store clerks, child care workers and the telephone operators who field calls to “800” numbers, processing much of the nation’s commerce. What makes them servants is the miserable pay. Measuring status by wage, as many Americans do, no one — the employers of low-wage worker, the public or the low-wage workers themselves — seems to value this class of work. Promotion, or higher pay, would be a way out. Unfortunately, neither solution kicks in very often. More than in the past, low-wage workers are stuck in place.

Brother, Can You Spare a Day? (Edward T. O’Donnell, New York Times)

One hundred-twenty-one years ago Labor Day meant something more than a three-day weekend and the unofficial end of summer….many concerns that inspired the first Labor Day persist. Public distrust of corporations has spiked in recent years as a result of scandals in accounting and campaign finance and huge payouts to departing executives. Polls indicate that more and more Americans are worried about job security, health care costs and pension funding. Whether it all ultimately leads Americans to “Strike With the Ballot” remains to be seen. In the meantime Labor Day will presumably endure, an annual reminder of battles won and battles yet to be joined.

Labor Day 2003: Nothing to Celebrate (Mark Weisbrot, AlterNet)

If ever there was a Labor Day for American workers to celebrate, this sure isn’t the one. It’s now 30 years since the end of the “golden era” for American labor, which by most accounting ended in 1973. Over the past 30 years the productivity of the people whose brain and muscle creates the wealth of the world’s richest nation has grown by 66 percent. But the wage of the typical employee – the median wage – has grown by only 7 percent. This one statistic says more than the volumes of hype and tripe that will fill the papers and the air waves on Labor Day. It encapsulates the most massive redistribution of income in American history, from the poor, from workers, from former middle classes – to the rich and the super-rich. As billionaire Warren Buffett said to ABC’s Ted Koppel last month, “If it’s class warfare, my class is winning.”

Home Alone (Bob Herbert, New York Times)

Imagine if we had begun a program to rebuild our aging infrastructure — the highways, bridges, tunnels and dams, the water and sewage facilities, the airports and transit systems. Imagine on this Labor Day 2003 the number of good jobs that could be generated with that kind of long-term effort. All of these issues, if approached properly, are job creators, including the effort to reduce our energy dependence. The big hangup in the economic recovery we are supposed to be experiencing now is the continued joblessness and underemployment. A fellow I ran into recently in San Jose, Calif., Andy Fortuna, said: “I’ve got a college degree and I’m washing cars. I’m working, but I’d like a good job. If the idea is for business to employ as few people as possible and keep their pay as low as possible — well, how’s that good for me? Who speaks for me?” Wise investments along these lines have dual payoffs — they help us take care of critical national needs and they help sustain the high levels of employment that are needed to keep the nation’s high-powered consumer economy humming.