Today’s Workplace will be on a holiday break from December 24, 2003, through January 4, 2004. We will resume adding blog entries on January 5, 2004. Thank you for your ongoing support, and happy holidays to all from Workplace Fairness!

Both houses of Congress have now adjourned until January 20, 2004, so it’s time to evaluate what was accomplished. It’s mostly unfortunate that in evaluating this year, it’s easier for us to look at what Congress didn’t do than what it did, when it comes to the issues we track here at Workplace Fairness. While legislators went home to observe the holidays and campaign locally, several important pieces of legislation remain on their agenda for next year — an election year in which Congress is historically notorious for accomplishing even less than other years.

Here’s just a few of the things Congress didn’t do this year:

It Didn’t Fix Overtime — Or Prevent the Department of Labor’s Misguided Attempt To Do So

As previously reported here, both houses of Congress voted to prevent the Department of Labor from implementing new overtime regulations that would mostly harm the workers they’re designed to help. In negotiations on the appropriations bills, Congressional leaders listened to the White House instead of the majority of their respective bodies, and allowed a veto threat to derail efforts to stop the proposed reforms. The House and Senate didn’t agree on an appropriations bill either, and while the House passed its pork-filled version, the Senate is deferring action on the appropriations legislation until January. (See Fort Worth Star-Telegram article.) In the meantime, the regulations could go into effect shortly after the beginning of next year, without any additional congressional effort to stop them.

Thankfully, Congress also never took action on the “Family Time Flexibility Act,” a supposedly family-friendly bill that would instead lead to more overtime hours being uncompensated. However, if the new regulations discussed above go into effect, there may not be much of a need for this bill, as there won’t be many workers left earning overtime anyway. (Of course, that may not stop a business-friendly Congress from attempting to reduce that number to practically zero, but it will be an election year, so anything could happen.)

More Information About Overtime and the Family Time Flexibility Act: Fair Overtime Pay

Take Action Now: Keep Pressuring Congress to Oppose Proposed Overtime Changes

It Didn’t Provide Tax Relief for Those Doubly Taxed in Discrimination Cases

While Congress came closer than ever before in doing something about those who are hit with excessive taxation in discrimination cases, the year ended without the tax laws changing. While Congress considered its latest round of tax cuts in May, the Senate Finance Committee added a portion of the Civil Rights Tax Relief Act (House version (HR 1155)/Senate version (S 557)), a change undoing the double taxation of attorneys’ fees, to its version of the omnibus tax bill. However, House leaders later stripped all Senate additions (not just this one) from the final version of the bill. So when April 15, 2004 rolls around, those who have successfully fought back against discrimination are still likely to writing very large checks to the IRS that day, quite possibly wondering why they ever bothered to bring a discrimination claim in the first place.

More Information About the Civil Rights Tax Relief Act: Fair Taxes

NELA’s CRTRA Page

Take Action Now: Stop Taxing Discrimination Awards Unfairly

It Didn’t Take Action on the Genetic Non-Discrimination Act

Not too many bills increasing the civil rights protections of employees have the unanimous support of any subset of the U.S. Congress, whether it’s due to partisan wrangling or one contrary legislator. The Genetic Non-Discrimination Act did, however, enjoy the unanimous support of the Senate, when it came to a vote in October 2003. You might think this exceedingly rare unanimity (coupled with the support of the White House) would mean something, but as of yet, you would be wrong. The House took no action on this bill before adjourning. So employers and insurers are still free to discriminate and/or deny insurance to those individuals with genetic histories they feel could cost them more money, and future scientific research could be hampered if those who could most benefit from knowing more fear the harm caused by what they know more than the harm caused by what they do know about themselves.

More Information about the Genetic Non-Discrimination Act: A Bill For People With D.N.A.: Senate Passes Genetic Non-Discrimination Bill (Today’s Workplace, October 14, 2003)

Take Action Now: Support a Vote on the Genetic Non-Discrimination Act

On a more positive note, there was one area in which the Senate’s failure to act can be praised:

It Didn’t Approve the Nominations of Some of the Worst Judicial Nominees

While the Congressional term ended with scores of federal judicial nominees approved by the Senate, there were a select few of the most extreme nominees who cannot yet call themselves federal circuit judges. Senate Democrats have thus far successfully filibustered nominees Charles Pickering (5th Circuit); Priscilla Owen (5th Circuit); William Pryor (11th Circuit); Carolyn Kuhl (9th Circuit); and Janice Rogers Brown (DC Circuit). Despite some talk from Senate Republicans about invoking a “nuclear option” requiring changes to long-standing Senate rules to allow the nominees to move ahead, and much more talk during a 30-hour debate session in November about the stalled nominees, when Congress went home for the holidays, these nominations continue to be stalled. While this issue is not likely to go away, especially in an election year, perhaps some of the nominees will, like Miguel Estrada, who withdrew his nomination once it was clear that his nomination was unlikely to be ratified by the Senate. Senators from both sides of the aisle need to hear from constituents aware of this issue who will urge them to reject extremist nominees and work towards a less rancorous confirmation process.

More Information on Judicial Nominations: Fair Judges

NELA’s Judicial Nominations Page

Take Action Now:

Demand Fair Judges: Stop Charles Pickering

Demand Fair Judges: Stop Bill Pryor

Demand Fair Judges: Stop Carolyn Kuhl

Demand Fair Judges: Stop Priscilla Owen

Demand Fair Judges: Stop Janice Rogers Brown

Perhaps in the future, we can report more favorably on what did happen, but in 2003, the most important developments were those that didn’t.

Today, Wednesday, December 10, is the annual observance of International Human Rights Day. This day commemorates the 1948 ratification of the Universal Declaration for Human Rights. One of the many rights guaranteed by this document is the right of workers to form a union and collectively bargain with their employers. That is why the union movement has selected this day to promote workers’ rights to unionize, which seems to be constantly under assault, and has scheduled a number of activities designed to promote workplace unionization. We hope that you will support these efforts in any way that you can today.

International Human Rights Day is a celebration of the adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in 1948, today celebrating its 55th anniversary. The UDHR and its signing nations pledged a “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” In addition to championing the idea that “all human beings are born free and equal in dignity and rights,” the UDHR promises freedom from discrimination based on race, sex, religion, national origin, political opinion or property. It also forbids slavery, torture, and cruel, inhuman and degrading treatment or punishment. (See Amnesty International Press Release.) Enforcement of the UDHR is overseen by the UN’s Commission on Human Rights, staffed by the Office of the High Commissioner for Human Rights.

The U.S. government in 1935 recognized the right to unionize with the passage of the National Labor Relations Act. Thirteen years later, this right was established internationally as part of the UDHR’s ratification. Article 23 of the UDHR declares that everyone has the right to work, to free choice of employment, to fair pay, to protection against unemployment, and to equal pay for equal work. Part four of this article says: “Everyone has the right to form and to join trade unions for the protection of his interests.” But while workers have had the legal right for almost 70 years in this country to form unions to negotiate for better workplaces through improvements in benefits, pay, safety standards and working conditions, their efforts often meet with threats, coercion and intimidation from their employers and even coworkers.

As acknowledged in a recent Boston Globe editorial,

Sadly, even in America, this right exists only on paper for many workers. Employers violate the union rights of thousands of workers every year, according to the monitoring organization Human Rights Watch. Those harassed include pork processors, nursing home workers, product packagers, so-called apparel workers employed in sweatshops, ship builders, and hotel workers. These and other workers have been threatened, transferred, or fired. Even after unions are formed, some companies refuse to negotiate contracts. (See Rights at Work.)

One-quarter of private sector employers fire at least one worker during a campaign to form a union, according to research conducted by Cornell University’s Kate Bronfenbrenner, who also found that almost all private-sector employers–92 percent–force employees to attend closed-door meetings to hear anti-union propaganda.

(See Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing (PDF format)).

Just one of the many examples out there was highlighted in an article in today’s New York Times. Larry Lee of Houston, a night stocker at Wal-Mart, a company notorious for its anti-union stance, reports that since he started talking about forming a union a few months ago, he has been assigned to work alone in areas of the store away from his co-workers and is monitored when he walks to his car or goes to the bathroom. But he is continuing his efforts to form a union. “The worst thing you can do is not try,” said Lee. “I’m dead serious about what I’m doing here. I’m committed to what I’m doing here.” (See New York Times article.) Unlike many others, Lee still has his job and is able to continue his efforts, instead of fighting his termination.

This kind of activity is what has prompted the AFL-CIO spotlight on workers’ unionization rights, and the impetus behind over 90 events scheduled for today’s International Human Rights Day commemoration. If it’s too late to participate in one of today’s local events, you are still urged to support the passage of the Employee Free Choice Act, which will:

· Allow employees to freely choose whether to form unions by signing cards authorizing union representation;

· Provide mediation and arbitration for first contract disputes; and

· Establish stronger penalties for violation of employee rights when workers seek to form a union and during first contract negotiations.

While this legislation is unlikely to pass in a Republican-controlled Congress, it is important to build public support for this legislation to strengthen the ability to unionize. We urge you to contact your member of Congress today to express your support for this bill:

Act to Protect the Freedom to Join a Union

More Information: Learn More About AFL-CIO December 10 Events

In an effort to demonstrate just how committed this Administration is to helping businesses at the expense of workers’ health, happiness, and financial security, last week the White House forced opponents of overtime reform to abandon their efforts to include in an appropriation bill prohibitions enacted by both houses of Congress preventing overtime changes from going into effect. Those leading the fight were forced to back down after the Administration insisted the President would veto any appropriations bill containing the prohibitions, which would have the effect of jeopardizing many other programs benefiting workers and paralyzing numerous federal agencies. While opponents vowed to continue their fight, the regulations could go into effect early next year, given the determination of the Labor Department (with the Administration’s support) to implement the new overtime rules, regardless of whether they’re supported by Congress or the American public.

As discussed in several prior editions of Today’s Workplace, (October 3; September 29; July 11; June 16), the overtime battle has been hard fought since March, when the proposed new changes were released. While proponents of the changes deemed them necessary to modernize decades-old regulations with inadequate salary guidelines and outdated occupational categories, opponents recognized that the changes would harm far more workers than would be helped. The Labor Department, when soliciting comments on the proposal, heard from an estimated 75,000-100,000 Americans (the most comments ever received by DOL on an individual proposal), with vast opposition to the changes, yet their substance has not deviated from the original proposal. (July 11 Today’s Workplace.)

In mid-July, the House of Representatives, in its first consideration of the issue, narrowly (213-210) voted to uphold the new regulations. However, opposition to the regulations was stronger in the Senate, and on September 11, the Senate voted 54-45 to attach a prohibition preventing implementation of the regulations to the appropriations bill funding the cabinet-level departments of Labor, Health and Human Services, and Education–the three departments arguably having the most influence over the lives of most American workers. (See September 29 Today’s Workplace.) This sent the measure itself to a conference committee to reconcile the differences between the houses of Congress in the appropriations bill. In the meantime, however, some members of the House had seen the light, after hearing the stories of their constituents who stood to lose significant income and/or family time if the proposed changes went into effect. In a new vote on October 2, the House voted 221-203 to support a resolution instructing its members of the conference committee to support the Senate version of the appropriations bill with the ban on overtime changes included. (See (October 3 Today’s Workplace.)

The fun and games were really just beginning at this point, however. Despite the new House vote, supposedly reflecting the will of the House of Representatives, the Republican House leadership still opposed the changes, as they were supported by only a few Republican members who courageously joined the Democratic minority to forge a majority vote on this issue. The House leadership therefore appointed to the conference committee individuals who opposed the Senate version of the bill and who voted in the minority on the latter non-binding vote. (See Work In Progress.) Sen. Arlen Specter, who chaired the committee and supported adding the overtime provision to the appropriations bill, then came under increasing pressure to delete the provision.

Specter, who faces a difficult re-election fight next year and who wants to maintain good relationships with labor groups and workers, initially planned to hold out against pressure from the White House and the Republican leadership, but felt compelled to cave once it was clear that remaining firm on overtime jeopardized the entire appropriations bill. (See Associated Press article). As he recognized when it comes to the spending bill, “Does anybody have a choice?” So the appropriations bill was finally allowed to move forward.

It’s unclear what will happen now, as partisan wrangling has derailed almost all of the spending bills needed to keep the government running. Some are proposing that one giant appropriations bill (accompanied by all kinds of policy changes and pork barrel projects that legislators hope will escape notice) be passed, so that Congress can finally adjourn for the year. (See Fox News report.) However, there may also be some senators who are able to successfully derail this spending approach. What is known that American workers remain in jeopardy, as there are currently no provisions which prevent the overtime regulations from going into effect, possibly before Congress resumes in late January or early February. As Sen. Tom Harkin put it, “Just in time for the holidays, the White House has delivered another gift for big business, along with a pay cut for millions of working families.” (See Associated Press article). It continues to be critical for those working families to speak out.

Take Action Now: Protect Your Right to Overtime Pay

Additional Information: The AFL-CIO has declared this week (Dec 1-5) a “National Week of Action” on the overtime issue. (See Work in Progress for further information.)